The Roberts Nomination: Supreme Court or Supreme Ruler?


[Recently by Hugh McInnish: American Resistance: The Case Of Alabama]

I`m planning to disconnect my telephone and leave town after VDARE.COM posts this, otherwise I wouldn`t have the nerve to write it.

In a way that I will explain—and it will need a lot of explaining, I know—I agree with light-years-to-the-left Senator Charles Schumer of New York and also with Senator Teddy Kennedy, architect of the disastrous 1965 Immigration Act.

Senator Schumer says that when Supreme Court nominee John Roberts was up for approval for the appellate court, he asked him which three Supreme Court decisions he most disagreed with. Roberts declined to answer. Schumer says he will repeat his question when the Senate takes up Roberts` Supreme Court nomination. He is entitled to know, he says, where Roberts stands on the issues.

Senator Kennedy takes a similar line. He wants to know where Roberts stands on the Liberal Agenda—civil rights, the environment, abortion, etc.

Well, I`m interested where Roberts stands too.

How, for example, will he vote when the Court gets a case, as it surely must, concerning automatic citizenship for babies born to illegal aliens who crash our borders purely to have their bills paid by US taxpayers?

With so many recent pivotal cases wrongly decided by 5-4 votes, this one man could with just a flick of his pen do much to rid us of the mischief that is wreaking havoc on our health and welfare systems, and that is turning us into a bilingual non-nation.

We know perfectly well how the hearings will go. At the senate hearings Schumer and Kennedy, backed up by their Democratic colleagues, will pepper Roberts with one demanding question after another. And Roberts will pleasantly, respectfully, and steadfastly decline to answer.

Roberts` rationale will be that, as a justice on the Court, he must remain impartial until he hears both sides of a controversy, then decide the case based on the facts and the law.

In his refusal, he will have the full force of the Bush Administration and every Republican Senator behind him. And they can remind the Democrats that this was precisely the argument they themselves used to help Ruth Bader Ginsburg sidestep questions and install her on the Court.

So—are Schumer and Kennedy right, or are they wrong?

For the answer we must dig down, far down, to the fundamental question, What is the Supreme Court? What is it supposed to do?

The answer used to be simple and obvious. The Supreme Court, what the Framers thought would be the weakest of the three branches of government, was a group of nine graying old men in black robes adjudicating cases in accordance with the established laws of the land, especially the ultimate law, the Constitution.

In that nearly-forgotten day the justices were indeed judges and the Supreme Court was a court. In that context, no candidate for the Court should have commented on any matter likely to come before the Court. Nor would there have likely been much interest in quizzing him on any, since it was unthinkable that the Court would consider the searing questions of the kind it takes up today.

Back in that era Schumer and Kennedy would surely be wrong. And they would be wrong today if the Court still worked as it did then.

But this is a grossly different era. Is a justice today a judge, and is the Supreme Court a court?

I say that the answer in both cases is no.

Today the Supreme Court, not the Congress, not the President, and certainly not the people, is the sovereign ruler over our country. Pat Buchanan made this point in a recent issue of The American Conservative:

No Congress in the 1960s would have voted new rights for criminals or new restrictions on cops. No Congress would have outlawed the death penalty or declared abortion, naked dancing, and homosexual sodomy to be constitutional rights. No Congress would have permitted desecration of the flag, forced busing or discrimination against white kids at state colleges. No Congress would have outlawed prayer, Bible-reading, and the Ten Commandments from classrooms. Liberalism had to be imposed by unelected judges who could not be removed by popular vote. [Judgment Day, August 1, 2005]

Whatever we might call the non-court we have today—junta (definition: a group of persons controlling a government esp. after a revolutionary seizure of power) comes to mind—it is hypocritical to pretend that it still deserves the hushed respect the Court once attracted.

And if it is the primary organ by which social change is made, why is it not both natural and right that we should know how a prospective member of the Court will vote on the big issues?

I think that we should. I think that, so long as the Court retains the power it has today, that Schumer and Kennedy are right.

But I said so long as the Court retains the power it has today.” And I strongly believe that it should not retain that much power.

What I am really arguing for is a thorough, fundamental review of this institution known as the Supreme Court. It is a grotesque metamorphosis of the genuine court that the Constitution mandates. It must either be curbed, or we must admit its true nature and change drastically how we select its members.

As things are today, we have only rumor and hearsay, in other words gossip, to inform us on the way a Supreme Court nominee is likely to vote.

In the case being made for Roberts we hear that he is “highly qualified,” meaning that he is bright, did well in law school, and has a good legal reputation.

But Mussolini was bright, and he probably had a pretty good GPA. The question is not intelligence—it is about the direction in which Roberts will direct his talents.

Hugh McInnish [email him] is a consulting engineer and publisher of supressednews.com.