But Leahy and Kennedy aren't just talking just about prohibiting discrimination or ensuring equal opportunity. They want government-mandated results. To them, equal opportunity is simply not sufficient. Presumably, America will not pass muster until big brother completes its job of equalizing the distribution of income and enforcing racial and gender quotas to "equalize" results.
Under their vision, the Supreme Court somehow must play a role in bringing about these results either by upholding unconstitutional legislation that permits racial preferences, interfering with equal opportunity by stacking the decks, or becoming a policy-making branch and "legislating" these changes from the bench.
They loosely throw around terms like "equal rights" and "civil rights," but their view of the court's active role inevitably leads to a devaluation of those rights, as Judge Roberts explained in his opening statement.
Roberts opined that unless judges adhered to the rule of law as "servants of the law and not the other way around" "rights are meaningless." I think Roberts is saying that for constitutional guarantees to have enduring meaning, the Court must honor the original understanding of those who drafted and ratified them. If judges can adapt the Constitution's provisions to achieve whatever result they deem desirable at any given time, there is no guarantee that its fixed principles and rights will remain inviolate. If judges can alter the meanings of terms at their whim, then rogue judges can transform our rights or eradicate them altogether.
In contrast to Leahy and Kennedy, Judge Roberts champions a judicial philosophy of humility, modesty and deference, without which constitutional protections cannot be considered safe. The Court, in Roberts' view, must be a guardian of constitutional rights and powers, not a creator of new rights.
The senators' invocation of Katrina is obscene and manipulative. They are highly frustrated that the electorate won't endorse their policy prescriptions for the nation and therefore rely on the judicial branch, entirely inappropriately and unconstitutionally, to effect their agenda. Roberts will either agree to accept their bastardization of the Court's proper role -- which is inconceivable -- or they'll bully him, then vote to reject him -- which is guaranteed. But compared to the next nominee, Roberts will get off easy.
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