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Supreme Court Confirmation: The Democrats Just Don't Get It

Ross Kaminsky - 8/1/2005

As we go into the approval process for President Bush's nomination of Judge John Roberts to the Supreme Court, it is fascinating to see the Democrats trying to redefine the Senate's Constitutional role in the process. Watching Dick Durbin (D-IL), the Democratic whip in the Senate, speaking with Tim Russert on Meet the Press made my head spin with his non-sensical rhetoric. Here are few of his lowlights:

- Durbin wants a nominee to show "balance". What exactly is balance in this context? Either a law is supported by the Constitution or it isn't. It is not a judge's job to give the occasional "make up call" such as passing a law which doesn't pass Constitutional muster after overturning several unconstitutional laws.

- Durbin thinks Roberts "has the burden of proof" that he deserves the consent of the Senate. This turns "advice and consent" on its head. Judge Ruth Bader Ginsburg, as overtly liberal as any appointment in a generation, was approved by a vote of 96-3. Conservative Republicans, although clearly in disagreement with many of Ginsburg's political positions, recognized that the selection of Supreme Court judges is the prerogative of the President, assuming the nominee and nomination process are not corrupt. The burden of proof, should a Democrat want to oppose Judge Roberts, is on the Senator and not the judge.

- Durbin was whining about how there was more consultation by President Clinton during the Ginsburg nomination than by President Bush during this process. Even partisan Democrats are not complaining about Bush's degree of consultation during recent weeks, but if they were it would be irrelevant. Bush did get "advice", then did whatever he thought appropriate with the information and made his choice. Comparing levels of consultation as a basis for whether the Senate should then refuse its consent is not only procedurally wrong but it's just childish. Durbin is stamping his feet as if the quarterback didn't pass him the ball enough times during the game (despite the fact that Durbin was never a major part of the game plan.)

- Durbin says that if Roberts makes it clear that he does not see a right to privacy in the Constitution, that would "disqualify" Roberts in Durbin's mind. First, Roberts should refuse to answer any questions that would imply a position on a case likely to come before the Court, and a right to privacy is a likely factor in many future cases. Second, Roberts could say to Durbin "I'll give you my opinion if you show me where in the Constitution you find such a right, since you clearly do." Imagine Durbin asking someone "Do you believe there's a pink elephant in this room", and refusing to support someone who said "No, Senator, at this time I do not see one" despite nobody in the room being able to see such a creature. Now, it could be that there's a pink elephant hidden under the floorboards, and it might be discovered later, but in the meantime requiring someone to say he sees it (or a right to privacy) in order to get a "Yes" vote is somewhere between unjustifiable and insane.

- Durbin said "I need to know if his views fall within the mainstream on critical issues, issues like workers' rights and women's rights and civil rights and the protection of the environment. I think the American people want to know that the person going to the court is in that mainstream when it comes to these values." (Quote from NBC News' "Meet The Press.") The left wing of the Democratic Party is, as always, quite pathetic in their attempt to appeal to Americans as the party of "Save the Women and Children". While I don't argue that none of those "rights" are important (with the possible exception of workers' rights), it has to make you wonder about the Democrats when they talk about such things within weeks of the disastrous Kelo decision and after a Court session characterized by taking the freedom of all Americans, not just the liberals' favorite interest groups.

Senator Patrick Leahy (D-VT) made similar comments while talking to George Stephanopolous on ABC, and Senator Chuck Schumer (D-NY) says almost every day that the nominee "will have to answer specific questions."

Like Durbin, Schumer says that he told Judge Roberts "All I need to vote to confirm you is to know that your views are within the mainstream", and to that end he's given the judge "a list of 60 or 70 questions" that he might ask during the hearings. As always when it comes to the "advice and consent" process, Senator Schumer does not understand his job. It does not matter whether Schumer thinks Roberts' views are "mainstream", as if there would be a consensus in the Senate as to what that term even means. I'm sure that mainstream in Schumer territory is very different from what it means in Oklahoma or Louisiana. The only thing Roberts needs to be clear about is that he will rule with fidelity to the Constitution, something which recent Supreme Court rulings show is depressingly absent from the current "mainstream" of Justices.

The Democrats are so desperate to oppose President Bush simply for the sake of opposing him that they are searching for the flimsiest excuse to make Roberts' confirmation contentious even if they can't end up defeating him.

When politicians act so stupid (and I use that term literally) and crass that just the fact that they are politicians is no longer enough to explain it, the real answer then probably comes down to money (even more than it usually does), and that's definitely the case here. Major contributors to the Democratic party are far to the left of the average American and are blinded by hatred of President Bush. They are beating down the doors of Democratic Senators with promises and threats based on those Senators' opposition to Bush's Supreme Court nominations. So these Senators are doing the best the can to be all things to all people, making the process difficult enough to satisfy Soros and friends, while not being so outrageous that it can be used against them in future issues or political campaigns. In the end, they just end up looking foolish and wasting a lot of time.

One of their pointless moves will be to request work-product documents from Roberts' time working in the Solicitor-General's office. These are clearly attorney-client privileged memos and letters and will not be provided to Congress. But the Democrats used this same tactic to derail Miguel Estrada's nomination to the Federal Appeals bench so they'll almost certainly try it again, if only briefly. They probably won't be able to help themselves, trying again to get confindential information and hoping that the refusal to provide it will win them political points. It won't win them anything and it will be interesting to see whether there are enough Democrats who realize where the country is on this nomination that they curb the most rabid Bush-haters from expressing that hatred through this process.

The Democrats have an interesting quandary here: Fight against Roberts to send a message that they're itching for a fight, or let him pass fairly easily and keep their powder dry for the next vacancy. I think the party will split in their decision which path to take, with east and west coast liberals voting against Roberts and most other Democrats and every Republican voting for him. I predict that Hillary will vote for the nominee. Unless some incredible new information comes out, Roberts will be confirmed. I predict a vote of 72-28. If Bush had picked a more controversial candidate man, I would have predicted 55-45 and if he had picked a woman I would have predicted 95-5.

On a related note, there's a lot of talk that Roberts is telling Senators that he's very concerned with "stability", implying a strong respect for precedent. I hope that is to a substantial degree wrong, or at least that it is being misinterpreted by the media. Decisions such as Kelo (allowing the government to take people's houses) and Raich (saying that the government can regulate the medicinal use of home-grown marijuana as interstate commerce) are so wrong and so dangerous to our core freedoms that they MUST be overturned when the opportunity arises. Imagine where we would be if such reverence was given to precedent that "separate but equal" were still the law of the land, just to pick one terrible stain on the history of the Court. Stability should not be a direct priority for a Supreme Court judge; Constitutionality creates stability and is the only proper focus for the Court.

Judge Roberts will be confirmed, and I hope he ends up being the mirror image of the horrible surprise that David Souter has been -- Roberts might be the reliable strict constructionist who truly protects the rights of citizens, in comparison to Souter's weak-kneed bowing to anything government wants to regulate or confiscate.