United States Senator “Chuck” Schumer’s broke his own stupidity record the other day following President Bush’s announcement of John Roberts nomination to the Supreme Court.
In a tag-team appearance with Senator Pat Leahy (D. Vt.), ranking minority member of the Judiciary Committee, Schumer confessed to the Nation that neither he, Leahy, nor the Democrat party for whom he spoke, understands a fundamental principle of American constitutionalism: separation of powers. Indeed, ever since Schumer confessed, his echo has been heard as Democrat functionaries (e.g., Kennedy, Biden, Durbin, Pelosi) have made the same confession that they, too, do not understand one of the three basic pillars upon which our Republic stands.
All of them, and for that matter most of the media, have been demanding that judicial nominee Roberts “answer questions.” That Roberts explain his position on abortion, that he reveal where he stands on affirmative action, that he disclose how he would rule on capital punishment, that he divulge his stand on eminent domain—that, in effect, he make known the platform on which he is running for a seat on the Supreme Court of the United States.
From the perspective of the Democrats, this is entirely understandable, even defensible—because they do not understand Separation of Powers, and thus the Constitution’s mandated role for a judge in the American system of government, believing instead that the judiciary is simply another political branch. The Democrats see judges—Warren, Brennan, Douglas, Blackmun, Stevens, Ginsburg—as legislators, promulgating from the bench their own social, economic, and even moral, programs, not interpreting the Constitution and laws passed by the politically accountable actual legislature, i.e., Congress.
John Roberts is not a candidate for the Nowhereville Town Council, where the voters would want to know (and would have a right to know) where he stands on building a new senior citizen center, or whether Walmart can open a superstore. He is not even running for a senate seat in Vermont, where voters have questions about dairy subsidies, or in New York, where Long Islanders want to know about shore erosion.
He is a nominee to a judgeship where his task is not to legislate (Article I of the Constitution), but rather to serve under Article III: “The judicial power of the United States, shall be vested in one supreme Court . . . .” That “judicial power” is the power to interpret and apply the Constitution and laws promulgated not by judges, but by legislators.
It is bad enough that the Democrats don’t—or won’t—understand this, but apparently they’ve succeeded in selling their bogus view of American constitutionalism to the American people. Last Friday, the Associated Press reported that “Just over half of all Americans—and a solid majority of women—want to know John Roberts’ position on abortion . . . .” Not just the “pro-choice” side, but also those who oppose abortion.
The fact is that no one is entitled to know what John Roberts thinks about abortion—or gay marriage, capital punishment, gun control, self-incrimination, free speech, warrantless searches, compulsory process, the commerce clause—or the price of tea in China.
The Judiciary Committee and the full Senate are entitled to know from President Bush’s nominee for an Associate Justiceship on the Supreme Court of the United States basically one thing: what does John Roberts believe is the constitutional function of courts in general, and the Supreme Court in particular—and of the judges who sit on those courts.
Until the Republicans extricate themselves from the judges-as-legislators mindset the Democrats have engineered—and in the process educate the American people about Separation of Powers, as the doctrine applies to John Roberts—they are playing the Democrats’ game, and perhaps holding a losing hand.