There is a definite trend among the more controversial talking points in Judge Roberts’ confirmation hearings.
For the most part, Senate Democrats made a general attempt to out-lawyer Roberts by luring him into statements that would portray him as having a “narrow-minded” view of the U.S. Constitution.
Senators Biden, Kennedy, Leahy, and Feinstein demonstrated their own narrow-minded judicial outlook by constantly rephrasing the same old questions. According to them, court rulings on social issues such as abortion and racial preference can only be seen through the spectrum of acknowledging or seizing human rights.
But as Roberts pointed out during the hearings, being against policies such as busing does not entail that one is opposed to civil rights. By that same principle, one is not a racist simply for being opposed to illegal immigration, or a misogynist for opposing abortion, etc.
Senate Democrats and their allies on the left however, believe judicial legitimacy to be dependent only upon a far-left legal perspective that generally approves of abortion on demand, gay marriage, gun-control, affirmative action, and the abolition of the death penalty, among other things.
These are, according to their standards, the merits of a consensus candidate.
In reality, the only consensus these views speak to is the one held by the American Civil Liberties Union. Say what you want about the validity of these views, but at the very least they may certainly be defined as narrow.
The question then remains: “what about consensus?” The answer to the problem is to abolish the very idea. Consensus is a factor in elections, where the will of the people is concerned.
But the danger in applying this same principle to the Supreme Court is demonstrated by the decisions reached in Planned Parenthood v. Casey and, more recently, Roper v. Simmons. In both cases, a decision was reached based on the notion that the court should take into account popular sentiment, where in the first case they were afraid to breach it, and in the latter, all too ready to acquiesce it. This method of deciding cases speaks to the idea of, in the words of the late Chief Justice Rehnquist, “a living Constitution with a vengeance,” wherein the Constitution is always used as a vehicle to right social wrongs.
But this is not the role of the judiciary, which is the only branch of government intended to be free from public demand. The founders could only look so far ahead into the future when considering future social standards, which is why they put in the clause that enables us to change the Constitution through our elected legislatures.
If liberals have a problem with a particular clause, they should seek to get it changed, instead of lobbying the courts to misinterpret clause altogether.
Certain ideological Senators are swiftly turning judicial nominee hearings into election-style debates on what makes a good society, hoping at the very least to score political points with their constituents, and at the very most to actually stop a nomination.
The hearings, now mired in absurdity, have undermined what the founders originally intended the judicial branch to be: a non-political entity.