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ATLANTIC HIGHLANDS HERALD |
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SETTLED LAW The nomination of Judge John G. Roberts for justice of the Supreme Court has left liberal pundits and politicians sputtering with frustration. Judge Roberts is squeaky clean. He has no whites-only country-club memberships or dirty jokes in his past which can be cited as reasons for stopping his confirmation. Alas, Gregory Peck (a.k.a. Atticus Finch) is no longer around to make ominous radio attack-ads opposing the nominee, as he did in 1987 to fight the candidacy of Robert Bork. The early buzz on Judge Roberts is that he was a top graduate of Harvard Law School, law-clerked for Supreme Court Chief Justice Rehnquist, has a nice-looking wife and (two) kids, and is conservative. Democratic politicians are shocked (shocked!) that Mr. Bush did not nominate a “moderate” who would attract broad support and keep the confirmation proceedings dignified. A recent page-one (above the fold) Washington Post article trumpeted John Roberts’ past as a leading figure in the Reagan Administration’s initiative to “roll back civil rights”. (Did Mr. Roberts want to take us back to whites-only drinking fountains, segregated lunch counters, and blacks at the back of the bus?) Mr. Roberts was a Justice Department lawyer in the Reagan era. National Public Radio’s Nina Totenberg has called Judge Roberts “very conservative”, “very, very conservative”, “very, very, very conservative”, a “really conservative guy”, a “hard-line conservative” and “a conservative Catholic”. After studying documents from Mr. Roberts’ Justice Department service, she expressed surprise this past weekend at how “very, very conservative he was”. (Brent Baker of the Media Research center said she must not have listened to herself.) Washington Post Fashion Editor Robin Givhan sniffed that at the official ceremony to announce Judge Roberts, hosted by the president, the Roberts kids and their mother, “groomed and glossy in pastel hues…looked like a trio of Easter eggs, a handful of Jelly Bellies, three little Necco wafers. Their “nostalgic image” was too carefully crafted to suit the truly hip Miss Givhan. “The overall effect,” she said, “was of self-consciously crafted perfection. (1) That cuts it, of course. Mrs. Roberts apparently didn’t realize how offensive her two well dressed kids would be to the exposed-butt-crack constituency. A seersucker suit and saddle shoes, indeed! (Couldn’t they at least have worn something baggy, wrinkled and slightly soiled?) Obviously, the Roberts nomination is kaput on fashion grounds, if on no other. The right whale (actually, left whale) Edward Kennedy is already in full spout-mode over the candidate, well before the Senate hearings. The senator says Judge Roberts will be asked for his views on issues that might come before the court. “The nominee will be expected to answer fully, so that the American people will know whether [he] will uphold their rights.” During the 1967 confirmation debate over future Justice Thurgood Marshall, Mr. Kennedy sang a different tune: “We have to respect that any nominee to the Supreme Court would have to defer any comments on any matters, which are either before the court or very likely to be before the court. [italics added] This has been a procedure which has been followed in the past and is one which I think is based upon sound legal precedent.” (Thar she blows!) Other senators have promised that Judge Roberts will receive a “fair but thorough” hearing. He will certainly not be rubber-stamped, since liberal special-interest organizations are extremely displeased with his nomination. (Or, at least, so they say.) Even Supreme Court Justice Sandra Day O’Connor, whose retirement occasioned Judge Roberts’ nomination, is “disappointed” that President Bush did not see fit to nominate a woman to replace her. Above all, though, the hills are alive with the term “settled law”. (A Google search of that word-pairing produced 114,000 matches.) In the context of the Roberts nomination, settled law is code for Roe v. Wade – the 1973 Supreme Court decision which overturned all state abortion laws and made abortion-on-demand legal at any time during a pregnancy, and for any reason. Retaining it is liberalism’s Holy Grail. There is no need to ask liberal nominees about their intentions with respect to “settled law” – i.e., Roe v. Wade – since they can obviously be counted on to uphold this vital core of modern liberalism. President Clinton’s 1993 nominee, Ruth Bader-Ginzburg – a known liberal activist and former member of the ACLU – was not asked about Roe. On other issues which senators thought might come before the court she refused to answer questions, saying it was improper to speculate thus. This has become known as the Ginzburg Standard. Democratic senators have no intention of adhering to it during Mr. Roberts’ hearings. It applies only to liberal nominees. Of course, there is a wider meaning – beyond Roe – to the concept of “settled law”. All courts are bound by higher court rulings. The Supreme Court’s rulings are ironclad precedents for all lower courts; rulings of U. S. District Courts are precedents for courts below them; etc. All Supreme Court rulings are, ipso facto, settled law. Only the Court, itself, or the Congress – via powers specified in Article III of the Constitution (2) – can reverse a Supreme Court ruling. In our era, for all practical purposes, the Court holds the high cards. Laws enacted by state legislatures or the U. S. Congress are not settled law in the same way as Supreme Court rulings. Legislated law can be “reviewed” by courts at any level. When any court finds a law unconstitutional, the law is set aside. Appeals to higher courts (if any) then proceed until (a) the law is restored, or (b) the state (or federal) government ceases to appeal, or (c) the Supreme Court makes a final, definitive ruling on the matter. To retain Roe, Democrats try to make the public think settled law is sacrosanct. Of course, it isn’t. Throughout American history the Supreme Court has frequently reversed settled law. Had it not done so, in fact, we might still have official segregation, “separate but equal” schools, and minorities disenfranchised and possessed of fewer opportunities. Brown v. Board of Education ended segregated schools by overturning settled law. Even Roe itself was a dramatic reversal of settled law. Before Roe, individual states regulated abortion according to their own standards. The Dred Scott decision of 1857 – much denounced as a proximate cause of the Civil War – was simply an affirmation of settled law of the time. Essentially, Dred said a slave had no rights a white man was bound to respect. An owner’s “property rights” trumped all concerns about the civil or human rights of his “chattel”. Northerners denounced this, but it was settled law. Today, millions of Americans can thank Providence that settled law was not the last word on their lives and futures. If it had been, America would be a far different place than it is today. Moreover, had the settled law of Roe been modified or overturned during the last 32 years, millions of people would now be living instead of having been aborted in the womb. Since 1973, over 40 million American children – an entire generation – have been aborted. Overturning settled law has often pleased one side of the political divide and infuriated the other. Thus, both sides will try to get Judge Roberts’ promise to keep his hands off the settled law they hold dear. But this can’t be guaranteed. What we really need is a new strain of justices who understand that the Constitution, not their personal whims, must be the yardstick for America’s laws. With a Court like that, settled law might finally become truly settled. ******* (1) See Miss Givhan’s article of July 22, 2005: http://www.washingtonpost.com/wp-dyn/content/article/2005/07/21/AR2005072102347.html (2) See discussion of Article III in “A Firebell in the Night”: http://www.ahherald.com/atlarge/2005/050728_firebell.htm
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