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. Continued...