As the Roberts Supreme Court confirmation hearings approach, it occurs to me that what we need is more than just a vetting of Judge Roberts' judicial philosophy. We're way overdue for a candid national debate, centered in the Senate, about the proper role of the judiciary in our constitutional framework.
Senators, in their advice-and-consent role, routinely put judicial nominees on the hot seat about their views on particular constitutional issues, but what about the views of the senators themselves? Who ever asks them what they think about the separation of powers or the doctrine of federalism?
I have this fantasy that some enterprising conservative senator could use the Roberts hearings as an opportunity to initiate this important discussion. Then, instead of just viewing potential Supreme Court justices as policy-making agents to be supported or opposed based on their political views, we could delve into the more relevant issue of constitutional governance.
Perhaps a few days before Judge Roberts submits to his obligatory inquisition and show trial, someone like Sen. Orrin Hatch could call for a senate discussion on judicial philosophy and the constitutional role of the courts. The public is entitled to know which senators foster judicial tyranny by insisting that the courts have the power to rewrite the Constitution.
Wouldn't it be instructive, for example, to ask Sen. Barbara Boxer to justify her requirement that Supreme Court nominees promise to preserve certain "fundamental rights"? Perhaps she could first explain what she means by "fundamental rights." Are these rights that are so rooted in our national tradition that there has always been a consensus as to their existence and indispensability?
How about an unborn child's right to life? Fundamental enough for you? Or, would Boxer be talking instead about a mother's right to abort her child on demand?
If the right to an abortion were fundamental, wouldn't there have been a consensus for it among the individual states long before Roe v. Wade in 1973? But Justice Scalia, in his opinion in Planned Parenthood v. Casey, reminds us that the opposite is true. Scalia wrote, "the long-standing traditions of American society have permitted [abortion] to be legally proscribed." As such, the right couldn't possibly be considered fundamental in any real sense of that word.