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Wednesday, July 20, 2005


judge john roberts

if karl rove was offered a second gift from his lord protector, it was the announcement of the nomination of conservative appellate court judge john roberts at a particularly convenient time.

response has been generally muted on the left thusfar, though it is early. the combustibility of the situation is undeniable, and the sad truth is that the credentials of the nominee may not really matter when everyone seems to be itching for a showdown. war has a momentum of its own, and civil war is no exception.

but i fear that roberts is exactly the kind of jurist that the court least needs, as an credible institution in the balance of powers. the economist characterizes roberts thusly:

In introducing his nominee, Mr Bush stressed that he had consulted widely, including with many Democratic senators. He called for a “dignified confirmation process, conducted with fairness and civility”. His message was clear: he was not seeking a fight that would further polarise an already divided country. But Mr Bush’s short speech included several code phrases that hinted what those who know Mr Roberts already know: the nominee is a faithful conservative Republican who shares Mr Bush’s judicial philosophy, one not shared by the half of America who finds Mr Bush too conservative.

What are those values? Mr Bush said that Mr Roberts will “faithfully apply the constitution”. This sounds uncontroversial but for conservative jurists it has a quite specific meaning. “Originalists”, like one of Mr Bush’s favorite Supreme Court judges, Antonin Scalia, argue that the constitution means just what its founders intended, nothing more. They abhor the idea, espoused by more liberal judges, that the constitution should be regarded as an organic document, shaped by the changing times, in which later judges may “find” new rights never envisioned by the framers.

And central among these contested rights are the electric social issues that most drive “blue America” (Democratic strongholds—mainly the left-leaning coastal areas) apart from “red America” (Republican areas—the more conservative mid-west, interior western states and the South). Chief among them, inevitably, is abortion. The number one goal of social conservatives is to overturn Roe v Wade, the 1973 Supreme Court decision that guaranteed women’s rights to abortion. Many scholars, both supporters and opponents of abortion rights, see it as an awkward piece of legal reasoning that finds the right to abortion in a purported constitutional right to privacy—itself never mentioned in the constitution. But social conservatives see it as an ungodly abomination that must go at once. They are delighted with the choice of Mr Roberts.
roberts' short time on the bench is really quite irrelevant in divining the direction of his future rulings if his legal persuasion is definitively constructionist -- his views will share much ground with justice scalia's. one can be fairly sure that robert's extended service as a lawyer within the republican political organization has made those views apparent to the bush administration.

as i have said here before, originalism or constructionism is simply an euphemism for the undermining of the power of the courts as part of the manifest march of rousseauian ideology in the united states. it holds that an "original ideology" underlies the constitution which is unchanging, and that this ideology is both the primary purpose of the constitution and fundamentally rousseauian. constructionism is based in a misbegotten recasting of the american founding as an experiment in french revolutionary jacobin government, and not the establishment of a traditional english parliamentarian institution, and thusly forwards unchecked democratic majoritarianism as though it were an original principle of the founding of the republic even though it was obviously not. this falsely imparts the force of history to a movement whose highest aspiration is the rejection of pragmatism, tradition and law as a means of government.

such shakily revised history cannot be the foundation of any solid progress in the present, and the metastasis of anarchism of which both ideological majoritarianism and constitutional originalism are a part has underpinned the growth of a tyranny in the united states as it reaches for utopian emancipation in the irruption of the rule of law. to the extent that roberts will further deteriorate the power of the courts as a governmental institution capable of checking this social decay, he should be opposed for the good of the rule of law.

UPDATE: matt welch offers some insightful questioning.

UPDATE: roberts reveals his nakedly majoritarian character vis-a-vis his assent to the decision in hamdan vs rumsfeld.

UPDATE: more from reason, where some misguidedly hope that constructionism means individualism.

the Americans recruited and trained Osama bin Laden

I seem to recall that bin Laden was supported by Zia ul-Haq and the ISI, who were partially financed by the CIA. I'm sure those guys won't cause more trouble since the US invaded Pakistan and reformed the CIA.

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