Carol Platt Liebau: Questions Conservatives Should Welcome

Monday, August 29, 2005

Questions Conservatives Should Welcome

Here, left wing law professor Cass Sunstein weighs in on what he believes the Judiciary Committee should ask Judge Roberts.

Some of his suggestions aren't half bad. I'd be interested to know what Judge Roberts thinks about originalism, and what he believes constitutes judicial "activism" (to me, it's not simply a matter of whether one votes to reverse precedent. It's whether one is trying to impose by judicial fiat revolutionary policy and political changes that are contrary to the expressed wishes of the country).

More generally, it would be wonderful for the hearings to be a learning opportunity for all of us. Republicans and conservatives shouldn't fear this prospect -- they should welcome it. It's been far too long that liberals have acted as though some of their very radical constitutional interpretation is simply the "mainstream." And with his intellect, his cool head, and his vaunted ability to answer even the toughest questions cogently, Judge Roberts would be the perfect man for the job -- if he chose to do it.

To take one example: We tend to believe that the original intent of the founding fathers matters -- and are less likely to be of the view, as Sunstein delicately puts it, that the "meaning of the Constitution evolves over time." For if that's the case, who's to decide what the meaning of the document is? Nine unelected judges? That's called oligarchy. No, there's no need to fear -- if our positions are properly explained -- that the majority of the country is against us.

One final note: Sunstein loses all credibility at the end of the piece when he aruges that:

But Justices David Souter, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer -- to name just four -- provided answers that offered strong indications about their most fundamental beliefs.

Ruth Bader Ginsburg??? She refused to answer so many questions that no one learned anything through her hearing (although everyone knew she was a hard-core lefty even before it). And as for David Souter -- if his answers had provided any indication about what he turned out to be, scores of Republicans would have voted against him . . . and Teddy Kennedy would have supported him.


Blogger Draino said...

Your diatribe shows a complete misunderstanding of how our government is supposed to work. Yes, nine elected judges ARE supposed to interpret the meaning of the constitution. No, it is not an oligarchy because those judges are confirmed by representatives of the people. This is the only way that minority interests are protected in this country. If you don't like the constitution go ahead and change it - through the amendment process. You wouldn't be yapping if the supreme court was stacked with conservatives would you. Utter hypocricy. And stop lablelling everyone and everything you don't like "liberal". It is a divisive oversimplification of issues that deserve more consideration that just sticking a label on them. Any idiot can do that and it doesn't contribute anything to moving this country forward.squat. Divide, divide, divide. That's all you know how to do.

10:55 AM  
Blogger Mr. Twister said...

I think professor Sunstein may be referring to the following when he speaks of Ruth Bader Ginsburg...

[The right to an abortion] is something central to a woman's life, to her dignity. It's a decision that she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices.--Ruth Bader Ginsburg during Senate confirmation hearings.

One would tend to think this offered strong indications of her fundamental beliefs.

Of course the fact that Justice Ginsburg was first suggested to Bill Clinton by Orrin Hatch, probably gives a bit of a hint why she wasn't pushed harder.

7:32 PM  
Blogger Mr. Twister said...

Or maybe professor Sunstein may have been referring to this answer from Justice Ginsburg confirmation hearings...

There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the fourth amendment: The Government shall not break into my home or my office without a warrant, based on probable cause; the Government shall leave me alone. The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life's course. Yes, I think that what has been placed under the label privacy is a constitutional right that has those two elements, the right to be let alone and the right to make basic decisions about one's life's course.

Of course, when Judge Roberts was asked in his confirmation hearing whether there is a constitutional right to privacy he refused to answer the question.

4:16 PM  

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