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Last Words to Prepare for the Coming Struggle

September 20, 2005 2:50 PM

Given the overall complimentary character of our exchange, I�m not surprised that Richard�s final post gives views very similar to my own. We end in agreement on at least three points: 1.) Roberts is a good man, and deserves confirmation, 2.) The Senate has an odd understanding of constitutional law, to say the least, and 3.) much of what�s going on is about the so-called �right of privacy,� a right manufactured from, but not actually found in, the Constitution. Nothing more need be said about the first point; rarely, if ever, has a nominee demonstrated a greater fealty to the constitutional task as set forth in Federalist 78. If a vote against Roberts is justified, than we can pretty well kiss the idea of the rule of law goodbye.

So I�ll devote most of the rest of this to points two and three, the Senate and the right to privacy. I was tickled by Richard�s Freudian analysis, but I think Jung may be a better bet. What I see is a real contest between good and evil archetypes. On the one hand the President and Roberts�s supporters have embraced his notion of the judge as an unbiased �umpire,� and have been willing, as has Richard, to say that Roberts may come up with a result they wouldn�t like, but because of his fidelity to our tradition and his even-handedness, they are comfortable having him on the bench.

The other side, and here I�m thinking of groups like NARAL and PFAW and the senators in their pocket, such as Kennedy (the jury is still out on Schumer, Biden, Durbin, and Leahy at this point, depending on their Roberts vote), who are very consciously perpetrating falsehoods or at least distortions about Roberts because they are prepared to go to any lengths to condemn the conservative tradition he represents. They seem to care little or nothing for the idea of the judge as the neutral arbitrator; they want only judges who will rule to reach the substantive results they desire, for example, expansion of the �right of privacy� to remove abortion from regulation, or perhaps to permit gay marriage. They want, in other words, to continue, as Richard suggests, to remove these and other issues from the democratic process, because this would please the constituencies on which they rely. They see no difference between law and politics, and they have made judicial confirmations political campaigns instead of an objective evaluation of qualifications.

Fortunately, it looks like the bad guys have been thwarted in this particular contest, as NARAL had to withdraw one mendacious ad, and the spurious attacks on Roberts�s character have failed to gain any traction. Still, it�s clear that the Roberts hearings are a sideshow and the real contest will be the struggle over O�Connor�s successor. If the Democrats are shrewd and subtle, most will, as we have suggested in our dialogue, vote to confirm Roberts, and then suggest that anyone to Roberts�s right is too extreme to go on the Court, and ought to be filibustered because the risk of such a person going on the bench would be the �extreme circumstances� which the gang of 14 left open as justifying a filibuster. This is because the spurious �right of privacy,� as Richard has exposed it, is at some risk if O�Connor is replaced by a Justice more like Scalia or Thomas, as Bush has promised. Roe v. Wade is probably not going to be overturned because there are still five Justices (Breyer, Ginsburg, Kennedy, Souter, and Stevens) who are on record as confirming it, and even Roberts indicated it was a strong precedent. But more abortion regulation would be permitted if an Edith Jones, or a Janet Rogers Brown, or a Priscilla Owen took the O�Connor seat (just to mention three conservative possible nominees in the mold of Scalia and Thomas), and other liberal-favored policies might not be as easily implemented by such a Court.

Allowing Roberts through would also give the Democrats a chance to invoke their now preferred notions, spun out by academics such as Lawrence Tribe and Cass Sunstein of the need for �balance� on the bench; �We gave you a conservative,� this time, the left will say, �now you need to let us have a liberal.� But there are places where it is wrong to speak of �balance,� and if those who have read this exchange understand anything it is that picking judges is one of those places. There is never a need to balance �good� with �evil;� and if there is a single correct theory of Constitutional interpretation, and if it is as exemplified by John Roberts � one of fidelity to the Constitution itself, rather than an ideological preference, then to call for �balance� here would be wrong. The friends of the theory of Constitutional interpretation set forth in Federalist 78, the same theory brilliantly and subtly explained by Roberts and with great grace by Richard in his last post, can and should use this exchange as ammunition to fight the confirmation battle that will soon be upon us.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.