Robert Meyer
August 7, 2005
Why I could never be on the Supreme Court
By Robert Meyer

I could never be a judge on the Supreme Court or any lower court for that matter. I look at the case of Judge John Roberts' nomination by the president, and I see all the nonsense a candidate must go through. I couldn't handle it. I could never deal with all the handlers and coaches telling me what to say or not say during the hearings. This really begs the question as to why Roberts was selected to begin with. Don't get me wrong, I believe he will be a truly conservative justice on this court; it's just that I wonder why Bush felt he needed to promote a so-called stealth candidate to begin with. I think that strategy wore out its welcome under the administration of Bush Sr., when there was doubt about getting a voting majority. Bush may want the democrats to look bad in voting against Roberts, but I think anyone who doesn't see the hypocrisy of the democrats by now is already riding shotgun on their wagon.

We see how the confirmation process has changed in recent years. The primary role that the "advise and consent" clause played was to be certain that a candidate had the legal pedigree of experience necessary for the position. This has changed considerably in recent years, as liberal senators have sought to put "litmus tests" on candidates chosen by a conservative president. Did conservatives in large numbers vote against Steven Breyer or Ruth Bader Ginsberg on the basis of ideology or judicial philosophy? No, but perhaps they should have. Ginsberg believes, for example, that the Supreme Court can be a continuing constitutional convention, or a remedial legislature. Such comments should have caused votes against her confirmation in spades, since they tend to violate the principle of separation of powers. Liberals have their "separations" wrongly prioritized. They should be less concerned with separation of church and state, and more concerned with separation of powers. Look at liberal judicial philosophy in terms of using foreign sources for arriving at decisions, and we are left to wonder whose Constitution we are adjudicating? Is the U.S. not a sovereign republic in our own right? Obviously the congress that confirmed judges like this were little concerned about ideology.

Judge Roberts will begin confirmation hearings in September, and there will be investigations to see if Roberts can be "incriminated" for officially opposing Roe v. Wade. Is being opposed to abortion as serious as implying the separation of powers doesn't apply to the court? Liberals are afraid of "originalists" and strict constructionists because they know a decision like Roe v. Wade could never hold up to the sort of scrutiny that comes from any cogent construction. When we appoint judges who have a tendency to put on their "enlightenment spectacles," then like some comic book super hero, see special emanations in the "penumbra" of the Constitution, we can only wonder what rights can't be conjured up from in between the lines of the text. Liberals in congress fear that judges like Roberts will no longer recognize an exclusive and unqualified right to privacy that they see in the Fourth Amendment. The question is whether there is any such thing that is recognized in the application of law. Is polygamy okay if done privately? How about consensual incest or the use of illegal controlled substances, if done behind closed doors?

If there is to be any litmus test, it ought to be a solemn vow that every judge will uphold the jurisprudence of original intent. This is the only method that the Founders said would result in getting to the true meaning of the Constitution.

I try to imagine myself before the judiciary committee. The questioning begins. "Mr. Meyer, please tell us about your position on a woman's right to choose." I reply, "Mr. Chairman, honorable members of this committee, if I'm evasive or plead the Ginsberg rule during these hearings as I have been advised, you will not vote for my confirmation anyway. Therefore I will be blunt so as to earn your vote of disconfirmation. I'm inclined to rule on this decision in the same manner as the late justice Byron White's dissent in Roe v. Wade, who in essence said that the majority had created a right to abortion out of thin air. To be fair to this committee, I will allow you to present an argument that shows my position to be constitutionally invalid, if you are able."

The Chairman continues, visibly disturbed: "Mr. Meyer, what does the doctrine of Stare Decisis mean to you?" I answer back, "It seems like a poor excuse for upholding a decision that has little or no logical connection to any legitimate construction of the Constitution. If we prostrate ourselves to precedent, we have no opportunity to reverse a poor decision. How would we have dealt with nullifying the principles of Dred Scott v. Sandford or of Plessy v. Ferguson, if we gave undo deference to precedent alone?"

The chairman attempts another stumper: "Do you think Brown v. The Board of Education is an activist decision?" I reply, "No, because the justices in that case were merely applying principles contained in the 14th Amendment, even while many in the legislature were in no hurry to recognize them."

Now another member of the committee pipes up, "What is your position on the separation of church and state?" I make a "steeple" gesture with my hands and then say, "The religious clauses of the First Amendment forbid congress from making a law respecting an establishment of religion, therefore the only cases germane for review by the Supreme Court regarding religion are those that pertain to the question of whether congress has made such a law."

The tension is so thick you could cut it with a knife. "Just one more question Mr. Meyer. What will you do if deeply held personal convictions come into conflict with applying the law?" I respond, "Sir, your hypothetical question creates a false dilemma. I am unaware of any issues where my constitutional position deviates from my personal convictions; therefore the onus is on you to offer a specific situation you want me to address."

I would no more than step out of the committee chambers before there would be a press release. "If Robert Meyer were confirmed as Supreme Court Justice, we would see a plague of back alley abortions, the repeal of affirmative action and Miranda rights. Doors would be broken down by jackbooted thugs at midnight. Women would be enslaved in their own kitchens. There would be a theocracy that would make Iran look like a conclave of social gospel engineers."

The real problem is not that such hyperbole could be concocted, but that too many would believe it.

© Robert Meyer

 

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Robert Meyer

Robert Meyer is a hardy soul who hails from the Cheesehead country of the upper midwest... (more)

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