Slouching towards a confirmation

Monday was Day 1 of the John Roberts confirmation hearings. President Bush has nominated Roberts to replace Rehnquist as Chief Justice of the Supreme Court.

As Mark Tapscott points out, Matt Margolis and Tom Goldstein were live-blogging the hearings on Monday.

Tapscott says the ability to analyze statements made in the hearings in almost real time is "an important illustration of one of the Blogosphere's least appreciated and exercised powers".

For example, Margolis wrote this about Senator Ted Kennedy's statement:

Kennedy: "the central issue before us ... is whether the supreme court will sustain the gains of the past..." Says the people have the right to know that the government is promoting their interests... not special interest... And Teddy is one to talk? I love how Democrats pretend that they are against judicial activism and legislating from the bench... it really is amusing... On the hearings, Kennedy says "We have only one chance to get it right." So... expect some ridiculous questions from Kennedy.. He just said "The senate was not intended to ber a rubber stamp for a president's nominee to the Supreme Court, and, as George Washington himself found out it has not been. Judges are appointed by and with the advice and consent of the Senate, and it is our duty to ask questions on great issues that matter to the American people and speak for them. Judge Roberts, I hope you will respond fully and candidly to such questions, not just to earn our approval, but to prove to the American people that you have earned the right to a lifetime appointment to the highest court in the land." Kennedy says there are many serious questions about Roberts.. including his views on equal opportunity... Give me a break. Accuses the administration of not letting the Senate have full access to Roberts' record... "We can only wonder what it is that the administration doesn't want us to know." Ugh!

Margolis has Kennedy's entire statement here. In his statement, Kennedy said this:

In particular, we need to know his views on civil rights, voting rights and the right to privacy, especially the removal of existing barriers to full and fair lives for women, minorities and the disabled.

From the start, America was summoned to be a shining city on a hill. But each generation must keep building that city.

Even in this new century, some Americans are still denied a voice at the ballot box because of their color, denied a promotion because of their gender, denied a job because of their age, denied hope because they are gay or denied an appropriate education because they are disabled.

By mentioning a "right to privacy", Kennedy is of course alluding to abortion, but what was that remark about people being denied a voice at the ballot box because of their color?! Is anyone, of any color, denied the right to vote because of their skin color?! No!

Kennedy may be slipping in the old lies from the 2000 election about "disenfranchised blacks" in Florida, or newer lies from the last election, about "disenfranchised blacks" in Ohio.

The Democrats are shameless. The Supreme Court is their last ditch, and they intend to fight for it.

Senator Leahy was no less shameless. He managed to connect Roberts and Hurricane Katrina!

Today, the devastation, despair facing millions of our fellow Americans in the Gulf region is a tragic reminder of why we have a federal government, why it's critical that our government be responsive.

We need the federal government for our protection and security, to cast a lifeline to those in distress, to mobilize better resources beyond the ability of any state and local government -- all of this for the common good.
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But if anyone needed a reminder of the need and role of a government, the last two days have provided it. If anyone needed a reminder of the growing poverty and despair among too many Americans, we now have it.

And if anyone needed a reminder of the racial divide that remains in our nation, no one can now doubt we still have miles to go.

I believe that the American people still want and expect and demand the government to help ensure justice and equal opportunity for all and especially for those who, through no fault of their own, were born into poverty.

The activist Left has come to cherish the Supreme Court, because in that institution, they can enact agendas they could never get past voters.

Robert Bork wrote about the steady leftward march of the Court in his book Slouching Towards Gomorrah. Chapter 6 of that book is entitled The Supreme Court as an Agent of Modern Liberalism.

Bork, of course, was a victim of the Left's scorched earth policy of defending their toehold on the Courts, and the charge was led by the same Senator Ted Kennedy.

In this chapter, Bork takes us through a long list of Court cases, showing how the Court has steadily moved away from a strict interpretation of the Constitution, to an activist, policy making role. Bork writes:

In its cultural-political role, the Court almost invariably advances the agenda of modern liberalism. That is to say, the Justices, or a majority of them, are responsible in no small measure for the spread of both radical individualism and radical egalitarianism.

Of the source of this leftward drift, Bork writes:

This is a philosophy, or mood, that cannot be derived from the Constitution. It is approved, however, by a group we have just discussed, the intellectual class. That class has distinctive attitudes, well to the left of the American center...It will not have escaped the reader's notice that judges belong to that class and so absorb its viewpoints and predilections naturally.

Bork discusses a number of cases where suspect reasoning is applied, but of Roe v. Wade, Bork says:

Roe is nothing more than the decision of a Court majority to enlist on one side of the culture war.

Of the pockmarks in our society as a result of the Left's attacks on the Court, Bork writes:

The effects on law and democracy have been horrendous. It is impossible for a Court that views itself as a political and cultural institution as much as a legal institution to make reasoned decisions whose principles it will adhere to in the future. The Court will change the Constitution as politics and culture change. The reasons given in one opinion are often little indication of what will happen in the next case. Since a cultural Court acts without guidance from the historic Constitution, the Justices could produce a coherent jurisprudence of individual rights only if they could construct and agree upon a systematic moral philosophy. Moral philosophers have been unable to agree on such a philosophy; it is preposterous to suppose that a committee of lawyers could.

The activist Left is not the least bit concerned if the Court changes the Constitution. In fact, they count on it.

Yet, they do not consider the inherent moral dangers that arise when a people decide to cast off the chains that moor the ship of state to a solid philosophical anchor, and let that ship drift out in the currents of opinion.

Bork writes:

Any more serious efforts to limit the powers of the courts will run into the familiar refrain that this would threaten our liberties. To the contrary, it is now clear that it is the courts that threaten our liberty--the liberty to govern ourselves--more profoundly than does any legislature.
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It is the judiciary's assumption of power not rightfully its own that has weakened, indeed severely damaged, the constitutional structure of the nation. It has been the judiciary, and not its critics, that has misled the public as to the role of judges in a constitutional democracy.

Bork concludes the chapter with this thought:

The upshot is that the democratic nation is helpless before an antidemocratic, indeed a despotic, judiciary. The American people, seem, at the moment, to be submissive and without the political will to reclaim the liberty that is rightfully theirs.

I am a little troubled that Roberts has been quoted as saying he doesn't have "an overarching, uniform philosophy". And any conservative hears the name Souter whispered in their nightmares. We will not truly know what kind of Justice Judge Roberts will make until he starts casting votes.

But with the Roberts nomination, and his next nominee to the Court, President Bush has an opportunity to stem the tide. Let us hope and pray these two picks begin to reverse the damage Judge Bork so clearly wrote about.

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Betsy Newmark takes a look at some lighter moments from the day.
Professor Bainbridge realizes the opening statements are theater.
Captain Ed at CQ says the WaPo put "too much stock in the moderate tone taken by most Democrats".
JunkYardBlog points out the ACLU is among the forces arrayed against Roberts.
Poliblogger wonders if such hearings are really necessary.
Hugh Hewitt links to a couple of lefty columns showing they don't quite understand Roberts, and the fact they are not in charge.