The Electric Commentary

Friday, September 16, 2005

Charles in Charge.

Charles Krauthammer has an excellent op-ed in today's Washington Post. The subject is the damage that Roe v. Wade has done to Supreme Court nominations.

Originalism is itself highly problematic, the worst judicial philosophy except for all the others, because they permit unmoored and arbitrary constitutional interpretation -- and thus unmoored and arbitrary judicial power. The learned senators, however, really don't care much about originalism, except to the extent that it would, almost by definition, make Roberts a categorical opponent of Roe . Which is why Roberts denies that he has any ideology, any "overarching judicial philosophy," and is nothing more than an ad hoc, bottom-up type of guy.

Maybe he is. Maybe he isn't. But he knows that if he dares to say otherwise, he gets Borked. If, on the other hand, he pretends to have a mind so scrubbed of theory that he is at a loss to explain gravitation itself, he gets to be chief justice of the United States for 40 years.

In 2000 Al Gore declared that he would not nominate a justice who did not support Roe. Dianne Feinstein says today that if she determines that Roberts opposes Roe , she will be compelled to vote against him. For Democrats, abortion is an open litmus test. For Republicans, it is a test of agility: Can they find the nominee who might be against Roe but has been circumspect enough not to say so publicly and who will be clever enough to avoid saying so at his confirmation hearings?

This is what we are left with. The judicial branch deals with so many different issues, but we nominate justices based on one and one alone.

Read the whole thing.


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