Bastardizing the Courts

September 13, 2005

Nothing could better illustrate the wrongheadedness of modern liberalism toward the role of the courts in the American constitutional framework than the allusions to Hurricane Katrina by Senators Leahy, Kennedy and others in the context of the Roberts confirmation hearings.

What on earth does Katrina have to do with the role of the courts in general, with the Supreme Court in particular, or with Judge Roberts’ judicial philosophy and fitness to serve on the Court? Absolutely nothing, of course, but that’s not how Leahy and Kennedy see it.

During his opening remarks at the hearings, Leahy, referring to Katrina, said, “But if anyone needed a reminder of the need and role of the government, the last few days have provided it. If anyone needed a reminder of the growing poverty and despair among too many Americans, we now have it. If anyone needed a reminder of the racial divide that remains in our nation, no one can doubt that we still have miles to go.”

Kennedy said, “The stark and tragic images of human suffering in the aftermath of Hurricane Katrina reminded us yet again that civil rights and equal rights are still the great unfinished business of America. The suffering has been disproportionately borne by the weak, the poor, the elderly and the infirm and largely by African Americans … I believe that kind of disparate impact is morally wrong in this, the richest country in the world.”

There can be no doubt that we still have poverty and despair in America. But unless these conditions are the result of something the Supreme Court is doing or not doing, the senators’ observations are absolutely irrelevant to the subject matter of the hearings.

It is not the function of the Court — or the legislative or executive, for that matter — to end poverty or racism.

Apparently unbeknownst to Leahy and Kennedy, the judicial branch is designed to play a passive role, deciding only those cases that come before it, laying down principles that can be applied to other cases and situations, to be sure, but never proactively issuing unsolicited opinions.

Concerning race and economic opportunity, the Court’s duty is to uphold the constitutional and statutory guarantees that prohibit discrimination on the basis of race, gender, ethnicity, etc., and mandate equal protection under the law.

Are we to infer that the senators believe that current Supreme Court precedent disrespects these constitutional and statutory guarantees? Anyone with but a superficial knowledge of constitutional and federal statutory law understands that the law strictly forbids government-sponsored racial discrimination and unequal protection of our citizens under the law.

But Leahy and Kennedy aren’t just talking just about prohibiting discrimination or ensuring equal opportunity. They want government-mandated results. To them, equal opportunity is simply not sufficient. Presumably, America will not pass muster until big brother completes its job of equalizing the distribution of income and enforcing racial and gender quotas to “equalize” results.

Under their vision, the Supreme Court somehow must play a role in bringing about these results either by upholding unconstitutional legislation that permits racial preferences, interfering with equal opportunity by stacking the decks, or becoming a policy-making branch and “legislating” these changes from the bench.

They loosely throw around terms like “equal rights” and “civil rights,” but their view of the court’s active role inevitably leads to a devaluation of those rights, as Judge Roberts explained in his opening statement.

Roberts opined that unless judges adhered to the rule of law as “servants of the law and not the other way around” “rights are meaningless.” I think Roberts is saying that for constitutional guarantees to have enduring meaning, the Court must honor the original understanding of those who drafted and ratified them. If judges can adapt the Constitution’s provisions to achieve whatever result they deem desirable at any given time, there is no guarantee that its fixed principles and rights will remain inviolate. If judges can alter the meanings of terms at their whim, then rogue judges can transform our rights or eradicate them altogether.

In contrast to Leahy and Kennedy, Judge Roberts champions a judicial philosophy of humility, modesty and deference, without which constitutional protections cannot be considered safe. The Court, in Roberts’ view, must be a guardian of constitutional rights and powers, not a creator of new rights.

The senators’ invocation of Katrina is obscene and manipulative. They are highly frustrated that the electorate won’t endorse their policy prescriptions for the nation and therefore rely on the judicial branch, entirely inappropriately and unconstitutionally, to effect their agenda. Roberts will either agree to accept their bastardization of the Court’s proper role — which is inconceivable — or they’ll bully him, then vote to reject him — which is guaranteed. But compared to the next nominee, Roberts will get off easy.