Saturday, September 17, 2005

Intellect v Emotion

The Senate Judiciary Committee hearings on the nomination of Judge John Roberts for chief justice of the Supreme Court are over. After all the senatorial bloviating there was bipartisan agreement on Judge Roberts' soaring intellect, integrity and judicial ability. Each day Roberts confirmed the opinion of the American Bar Association that he is eminently qualified to serve on the highest court. And as a near clone of his mentor Justice Rehnquist, Roberts seems the natural choice to succeed him as Chief. The only question remaining is how many Democrats will do the right thing in the confirmation vote next week.

Still the hearings were not uninteresting, as the days of testimony provided a look inside the psyches of the two political parties. The Democrats showed themselves to be the party of emotion. Consider this sampling of Democratic sentiment:

BIDEN: I believe that the federal government must act as a shield to protect the powerless against the economic interests of this country.

DURBIN: The basic question is this: Will you restrict the personal freedoms we enjoy as Americans or will you expand them?

FEINSTEIN: And it seems to me that the living Constitution is that each person in this great country, man or woman, rich or poor, white or black, whatever it might be, can really reach their full potential.

KENNEDY: Even in this new century, some Americans are still denied a voice at the ballot box because of their color.

LEAHY: If anyone needed a reminder of the growing poverty and despair among too many Americans, we now have it.

SCHUMER: Many of us consider racism the nation's poison. Do you regret some of the inartful phrases you used in those memos, a reference to illegal amigos in one memo?

DURBIN: When you are defending gays and lesbians who are being restricted in their rights by the Colorado amendment, you are trying, from my point of view, to expand freedom in America. But then when you say, "If the state would have walked in the door first to restrict freedoms, I would have taken them as a client too," I wonder, where are you?

FEINSTEIN: For me one of the most important issues that need to be addressed by you is the constitutional right to privacy. Do you then believe that this implied right of privacy applies to the beginning of life and the end of life?

KENNEDY: The stark and tragic images of human suffering in the aftermath of Hurricane Katrina have reminded us yet again that civil rights and equal rights are still the great unfinished business of America.

DURBIN: Is there any room in constitutional interpretation for the judge's own values or beliefs? And your response: No, I don't think there is. But beyond loyalty to the process of law how do you view the law when it comes to expanding our personal freedom?

FEINSTEIN: Let me move to the case of the hapless toad, known more commonly as Rancho Viejo v. Norton. Do you believe there's a basis for sustaining the Endangered Species Act other than the commerce clause?

SCHUMER: Just assure me that modesty isn't a concept that you use when you want to slow things down because the courts are moving too fast.

DURBIN: You've lived a comfortable life. Court cases often involve people who have not. Many times contests between the powerful and the powerless just with the rule of law and the Constitution on their side, praying for relief, for their day in court.

FEINSTEIN: I want to go back to hapless toad. It still bothers me.

Enough said. Now contrast the responses of a Republican judge.


Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability.

If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.

Senator, I don't think you want judges who will decide cases before them under the law on what they think is good -- simply good policy for America.

I had someone ask me in this process, "Are you going to be on the side of the little guy?" And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath.

In my view intellect (with integrity) trumps emotion.

As Americans we believe in the Constitution, and our liberty is best preserved by those who, sitting on the bench, remain faithful to its timeless principles. Judges like John Roberts and his mentor William Rehnquist, Antonin Scalia and Clarence Thomas; conservative Republican justices all.


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