Friday, September 23, 2005

My final thoughts on John Roberts

Now that John Roberts has passed out of committee with a 13-5 vote, I should let all 12 of you know my thoughts. Am I still skeptical? Yes. Why? Because I don't know whether he'll vote to overrule the multitude of idiotic liberal decisions over the past few decades. However, even Scalia doesn't vote to overrule everything - even decisions he disagrees with - and expresses a healthy respect for precident. I'm more in the Thomas camp in that bad decisions left un-overruled are left as precident for more bad decisions and extensions of their flawed reasoning.

With statutes, overruling isn't as necessary because Congress can take care of it, though there are exceptions. For example, every "effects" test not expressly stated in the statute should be rejected. Indeed, an "effects" test is constitutionally suspect in the first place as a violation of due process - the real "process" kind, i.e., it is impossible to know in advance that my racially-neutral policy will disproportionately affect some race or another and to punish me for unforseeable consequences is a violation of due process.

For matters of Constitutional interpretation, if it was wrongly decided in the first place it should be overruled. The Constitution is dead.

Back to Roberts. Do I support his confirmation? Enthusiastically, yes. I have a high degree of confidence that he will not pull a Kennedy, Souter or O'Connor and extend liberal nonsense to Constitutional interpretation. While he may not strip it away as much as I would like, he showed a tremendous intellect and a tremendous ability not to be bullied or swayed from his own beliefs. I have a high degree of confidence that he will not "grow" on the bench. In other words, I see him as a stong vote against recognizing a "right" to gay "marriage" in the Constitution and other such nonsense that will undoubtedly come before him in the next few years.

Moreover, when asked about Roe v. Wade, he gave the right answers. Is it a precident of the Court? Yes, but only insofar as every not-yet-overruled prior decision of the Supreme Court is a "precident." Is it entitled to respect? Yes, but only because other judges thought about it and that all other judges are entitled to some respect. Is Roe v. Wade entitled to as much respect as, say, Brown v. Board of Education? He did not say. Moreover, he expressed a clear and unwavering rejection of the notion of citation to foreign law in interpreting the Constitution. That is the current big legal debate and his confirmation as Chief Justice should put a kiabosh on such nonsense.

I once heard a commentator say that the object of a confirmation hearing is to get confirmed. It is not a forum for pontificating or debating. Roberts said exactly what he needed to to get confirmed. He said exactly what I would have said, and that is the highest compliment I can give him - he's at least as smart as me. (It is, of course, possible that he's smarter than me - he didn't face a very difficult challenge from the legal minds questioning him and he was much better prepared than they.)


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