Strengthening Constitutional Self-Government

No Left Turns

Judge Roberts’s Opening Statement

I caught the last few senators’ statements on the radio today, as well as Judge Roberts’s short but principled
opening statement. My favorite passage follows here:

Mr. Chairman, when I worked in the Department of Justice in the office of the solicitor general, it was my job to argue cases for the United States before the Supreme Court. I always found it very moving to stand before the justices and say, "I speak for my country."

But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and our constitutional system. Here was the United States, the most powerful entity in the world, aligned against my client. And yet all I had to do was convince the court that I was right on the law and the government was wrong and all of that power and might would recede in deference to the rule of law.

That is a remarkable thing. It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world, because without the rule of law any rights are meaningless.

This, in a nutshell (which you can be sure a few Democratic Senators will try to crack starting Tuesday morning), is Roberts’s answer to those critics who are trying to characterize him as someone who will "turn back the clock" on civil rights. In short, Roberts argues that the best defense of the rights of the individual is a regime that operates according to the rule of law, rather than specific justices who make individual rights their raison d’etre.P>

Compare Roberts’s point with the following claim made by Sen. Richard Durbin (D-IL):

Twelve years ago, at the nomination hearing of Justice Ruth Bader Ginsburg, my friend Illinois Senator Paul Simon said something worth repeating. He said to the nominee, and I quote, You face a much harsher judge than this committee. That’s the judgment of history. And that judgment is likely to revolve around one question: Did you restrict freedom or did you expand it?

I think Senator Simon put his finger on how the United States Senate should evaluate a nominee for a lifetime appointment to the federal bench.

Judge Roberts, if you’re confirmed, you will be the first Supreme Court justice in the 21st century. The basic question is this: Will you restrict the personal freedoms we enjoy as Americans or will you expand them?

"Did you restrict freedom or did you expand it?" Upon what constitutional grounds does any Supreme Court justice have the power to to restrict OR expand individual freedom? The principal protection of individual freedoms are the laws produced by a legislature of their choosing, enforced by their executive. When there is a controversy, then a court is invited to decide if a given law has unconsitutionally infringed upon a person’s rights. But it is the Constitution, not this or that justice’s desire to expand individual freedom, that marks the standard for judging whether a wrong has been committed. (This reminds me of Lincoln’s comment in 1838 about the danger of a "towering genius . . . [that] thirsts and burns for distinction; and, if possible, it will have it, whether at the expense of emancipating slaves, or enslaving freemen." The Simons and Durbins and Kennedys of the world would have us appoint judges who, while seeking to emancipate slaves [read: expand freedom], would end up enslaving freemen by undermining the rule of law that stands as the greatest institutional bulwark of individual freedom.)

Judge Roberts also stood up to those who tried to make his service under President Reagan a badge of unremitting partisanship, and did so with a short citation of Reagan that reflects Roberts’s respect for how constitutional self-government works as well as his recognition of it in Reagan’s political thinking:

President Ronald Reagan used to speak of the Soviet constitution, and he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality.

I’ll let others chime in about the baseball analogy he used elsewhere in his opening statement. For now, I am encouraged by this man who was not afraid to stand up for the Constitution and one of its greatest defenders.

Discussions - 2 Comments

I heard on the news of the badgering of Judge Roberts by the Massachusetts gasbagfrom Martha’s Vineyard. Dickie turban Durbin was no better.

God help the people of Massachusetts and Illinois who continue to send these clowns to Congress.

Don’t worry about Illinois, dude. We don’t need your concern.

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