George Will

WASHINGTON -- Dianne Feinstein's thoughts on the nomination of John Roberts as chief justice of the United States should be read with a soulful violin solo playing, or perhaps accompanied by the theme song of ``The Oprah Winfrey Show.'' Those thoughts are about pinning one's heart on one's sleeve, sharing one's feelings and letting one's inner Oprah come out for a stroll.

     Feinstein, like many Democrats, has interesting ideas about what Supreme Court justices do, or should do. In her statement explaining to fellow members of the Judiciary Committee why she opposes confirmation of Roberts, she began with a cascade of encomiums, describing Roberts as ``an extraordinary person'' with ``many stellar qualities,'' including ``a brilliant legal mind,'' ``a love and abiding respect for the law'' and ``a sense of its scope and complexity as well.'' Her next word was ``but.''

     She was, she said, disappointed when Roberts was asked by another Democrat whether ``he agreed that there is a 'general' right to privacy provided in the Constitution.'' Roberts replied, ``I wouldn't use the phrase 'general,' because I don't know what that means.''

     Well, what does it mean? Roberts had clearly affirmed his belief that the Constitution protects privacy in various ways that amounts to establishing a right to privacy in various contexts. But what would make such a right a ``general'' right? Do Americans have, say, a constitutional privacy right to use heroin in the privacy of their homes? No. To sell prostitution services in the privacy of their homes? No, again.

     The question is not just: Does Feinstein, evidently a believer in a ``general'' right to privacy, think, as a rigorous libertarian might, that such heroin use and prostitution should be permitted? Rather, the question is: Does she think the Constitution protects those activities as rights? If not, in what sense is the privacy right ``general''?

     But the crux of Feinstein's case against Roberts concerns not the adjective ``general'' but his general deficiency of empathy. Specifically, she faults his failure to talk to her ``as a son, a husband, a father,'' and to understand ``the importance of reaching out.''

     Exploring Roberts' ``temperament and values,'' Feinstein asked him about ``end of life'' decisions, urging him to talk to her ``as a son, a husband, a father.'' Instead, she says disapprovingly, he ``gave a very detached response.''

George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
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