No one can reasonably accuse the president of pandering to Hispanics or women to expand his political base or appease potential critics. The president describes his nominee as a judge who will "strictly apply the Constitution and laws." This criterion was once a given. When Alexis de Tocqueville visited America in 1831-32, he reckoned the American judiciary as a conservative force, albeit with political power. "An American judge, armed with the right to declare laws unconstitutional, is constantly intervening in political affairs," he wrote. "He cannot compel the people to make laws, but at least he can constrain them to be faithful to their own laws and remain in harmony with themselves."
Such a judicial temperament has been in steep decline as the standard for modern judges. In recent memory, ideologues always dominate the debate. Rather than consider the intellectual argument over the way the Supreme Court arrives at its decisions, the debate wanders to speculation about how a certain justice might rule on hot-button issues. Specific cases, however, ought not be ruled by ideology; the president is correct, the only standard ought to be that the Constitution be strictly interpreted. Otherwise, we might as well program a computer to dole out decisions based on the size of the various special interests and their voting strengths.
Since the 1960s, the Supreme Court has done what legislators have been too timid to do. This has pleased liberals, who can't win national elections but who dominate the law schools that produce the lawyers who become the judges. This naturally undercuts how a democracy is supposed to work. In analyzing the idea of a "Living Constitution" as opposed to a written one, Myron Magnet, a scholar with the Manhattan Institute, exposes the court as increasingly seeking goals and solutions that ignore the democratic process, eschewing text and precedent. "To the extent the judges put themselves in the business of dispensing solutions to knotty social problems and providing for the continual reform of society on lines envisioned by the cultural revolution, they were acting not like a judiciary but like a government," he writes in "The Dream and the Nightmare." This pleases "progressives," but not small-d democrats: "In a self-governing democracy popularly elected officials, not unelected jurists with lifetime tenure, make laws and set social policy."
Justice Oliver Wendell Holmes, who showed great deference to the legislative process if not necessarily legislative judgment, put it bluntly: "The people have a right to go to hell their own way." I don't have a crystal ball, but like George W. Bush, I'm betting that Judge Roberts agrees with Justice Holmes.