Friday, July 29, 2005

I Like this Kind of McCarthyism

Via a dissenting opinion at Powerline, I am directed to a post by Andrew C. McCarthy of the Foundation for the Defense of Democracies that gets the issue of why asking a Supreme Court nominee about important precedents is an appropriate line of questioning. Read the whole thing. Here's the best excerpt, using Roe v. Wade as the example:

If you think Roe is good law, if you think it was well reasoned, if you think it reached the correct result, then you are basically saying that you think it is proper for a handful of lawyers, bereft of compelling precedent, and without competence in dynamic and relevant disciplines like medical technology (while unable institutionally to become competent by holding hearings like Congress does), to impose their policy preferences on the American people, and thus insulate those policy preferences from the democratic process.

Unfortunately, opportunity for reasoned debate on Roe has been overwhelmed by the disingenuous rights-rhetoric of the Left, abetted by the Right’s self-defeating complicity. In the current clime, saying “I think Roe was incorrectly decided,” reduces the declarant to a caricature Cro-Magnon who would have “women forced into back-alley abortions,” as Senator Ted Kennedy (D., Mass.) slanderously said of Judge Robert Bork nearly two decades ago.

In fact, all the statement really means is that the decision whether and under what circumstances to permit abortion — like every other issue the Constitution does not speak to directly — should be in the capable hands of Americans and the politicians accountable to them, rather than the judiciary. It is baffling that, in an age of judicial excess, conservatives continue to slog away in the abortion box rather than offering a different, resonant way for people who care about self-determination to think about Roe.

I don’t much care what Judge Roberts thinks about abortion. If Roe were reversed tomorrow, there would still be plenty of abortion. But it would be regulated by the people, not the judges. I would need to care about what Judge Roberts thinks of abortion about as much as I currently need to care what Justice Ginsburg or Justice Scalia thinks the drinking age in Connecticut should be — which is to say, not at all, because it’s frankly none of their business. That’s not what we hired them for.

A while ago, I poked fun at some influential Democrats for (to make a long story short) admonishing elected Democrats not to put their principles up against their opponents' and subject Social Security reform to vigorous debate. The same principle applies here to the Republicans. Insist that Roberts answer well posed questions about important precedents--and then defend his answers to the American people against the baseless charges of ideologues.

If you believe in democracy, if you passionately believe in self-government under our Constitution, then that's how you conduct yourself as a Senator, regardless of how other Senators or nominees may have conducted themselves in the past. You win the argument, with the salutary benefit of having something to campaign on in the next election.

Besides, exactly what element of Judge Roberts' resume would lead anyone to believe that he cannot excel in a confirmation hearing?

Other blogs commenting on this post


Patrick Sullivan said...

'Besides, exactly what element of Judge Roberts' resume would lead anyone to believe that he cannot excel in a confirmation hearing?'

You could have said the same thing about Robert Bork.

Andrew Samwick said...

My "right" to kiss my lovely wife is protected by the capable hands of the American public. I would happily engage in civil disobedience if the NH law were ever to change.

As we discussed earlier, I think the decision to display the Ten Commandments in Kentucky courthouses should be in the capable hands of citizens of Kentucky.

And I think that we have become too lazy as a society to actually amend the constitution when amendment is called for. I would support an amendment guaranteeing most aspects of the "right to privacy" as it is now commonly understood. But I don't support the way it has evolved over the last 4 decades in the absence of such an amendment.

Bibamus said...

Are you saying that you don't believe in unenumerated rights at all? This seems at odds with both the history and the plain text of the Constitution. Madison could have written the 9th Amendment to read "for all other rights, we will ask for a show of hands", but he didn't, and probably for a reason.