Monday, September 26, 2005

Democratic Sens. Hillary Clinton of New York and Dianne Feinstein of California mistook justices for missionaries in elaborating their opposition to Judge John G. Roberts, Jr. as chief justice of the United States.

Associate Justice Ruth Bader Ginsburg reinforced that mistake last week before the New York Bar Association by insinuating justices are anointed to “advance human rights or women’s rights” as they see fit.

Article III of the Constitution, however, confines the Supreme Court to the exercise of “judicial power,” i.e., interpreting the Constitution and laws in accord with their original meaning. Not a syllable hints a justice is empowered to trump the law in a quest for higher morality akin to civil disobedience. Believers in justices under the law as opposed to apostles over the law are what separate champions and detractors of Judge Roberts.

Mrs. Clinton decried the nominee as a threat to “the already fragile Supreme Court majority for civil rights, voting rights and women’s rights.” But nothing in the Constitution directs justices to subordinate the law to advance that agenda. Take voting rights. Neither blacks nor women nor 18-year-olds were guaranteed the franchise by the original Constitution. The 15th, 19th and 26th Amendments, proposed and ratified as prescribed in Article V, were required to prohibit racial, gender and age discrimination in voting qualifications. But under Mrs. Clinton’s logic, the Supreme Court was remiss in not decreeing the franchise amendments without the bother of Article V because “civil rights, voting rights, and women’s rights” were at stake. Honorable ends justify extraconstitutional means.

Mrs. Clinton’s ideal Supreme Court would have ordained the Bill of Rights. It would have outlawed slavery. It would have acquitted John Brown. It would have prohibited child labor. It would have summoned into being the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968. And the contemporary Supreme Court, according to Mrs. Clinton’s way of thinking, should recognize a constitutional right to same-sex “marriage,” prohibit employment discrimination based on sexual orientation and eliminate compensation disparities between men and women.

It is a fair inference Mrs. Clinton would do away with Congress, the executive branch and the states in favor of the Supreme Court when civil rights, voting rights or women’s rights are at issue, at least until she occupies the White House and Democrats control the House and Senate.

Mrs. Feinstein echoed Mrs. Clinton’s disparagement of Judge Roberts for refusing to cast the Constitution aside to pursue a higher extraconstitutional calling. Mrs. Feinstein tacitly conceded Judge Roberts’ ability to interpret the law — which is what the “judicial power” is all about — was irreproachable: “I think there is no question that he has many stellar qualities, certainly a brilliant legal mind and a love and abiding respect for the law, and I think a sense of its scope and complexity as well.” That should have concluded the issue. But it did not. Mrs. Feinstein insisted a justice must enshrine a legal agenda compatible with her own. Let the Constitution be damned.

Mrs. Feinstein fretted that Judge Roberts was uncommitted to “[a] basic right to privacy that extends from the beginning of life to the end of life.” The senator was undisturbed that a “right to privacy” is nowhere mentioned in the text or subtext of the Constitution. She was unalarmed by the prospect of judges deciding when life begins or ends, which could occasion an absolute prohibition on abortion. Neither was Mrs. Feinstein concerned that a right to privacy unhinged from the Constitution would naturally protect polygamy, prostitution, drug abuse and child pornography in the home.

The senior senator from California tacitly acknowledged that the original meaning of the Constitution and its amendments do not honor the open-ended privacy right she celebrated. But she covets a Supreme Court eager to make the law subservient to lofty aims reminiscent of Maximilien Robespierre, V.I. Lenin and the Ayatollah Ruhollah Khomeini.

Mrs. Feinstein found Judge Roberts unworthy on women’s issues, but not because the nominee would misinterpret the law, for example, a claimed right to equal pay for work of comparable value. Instead, she faulted Judge Roberts for a politically incorrect attitude that might handicap him as in concocting rights as though he were Susan B. Anthony or Elizabeth Cady Stanton. She also questioned him as though he had been nominated as son, husband or father of the year, not as chief justice entrusted exclusively with interpretive tasks: “And I asked him about end-of-life decisions — clearly, decisions that are gut-wrenching, difficult, and extremely personal. Rather than talking to me as a son, a husband, a father — which I specifically requested that he do. He gave a very detached response.”

What Sens. Clinton and Feinstein fail to discern is that the rule of law within the Supreme Court is essential to the preservation of all rights. Where lawlessness reigns, the weak will be crushed by the strong. That is why the two should support Judge Roberts’ nomination as chief justice.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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