This Advice and Consent is Silly
Biden likes to work a little trick in these kinds of speeches by talking about how the non-delegation doctrine and the activist, conservative view of the commerce clause threatens to undermine modern government. He talks about how important and foundational Griswold is to the American people, and how the undemocratic Right is undermining American values. As if it is these, and not Roe and Lawrence, that is mobilizing the majority of the country to remake the Court.
"I believe with every fiber of my being that the Constitution protects a Zone of Privacy."Well, no matter how many people believe it with however many fibers, the jurisprudential issue remains that such a right actually isn't in the Constitution, regardless of how badly people want it to be. What followed was the parade of horribles that I remember hearing in con law. This means that the government could mandate limits on the number of children, force women to have abortions, and on and on and on. Apparently since the Constitution doesn't forbid these things, we should all be very worried that they will follow quickly on the heels of Judge Roberts' confirmation. The Left has still failed to explain to us how we can forge a Constitution that will prevent every conceivable harm without creating an uncontrollable judicial power, but they sure like to talk about the hypotheticals.
Maybe rather than more propaganda, one of these guys should put forward a coherent view of the role of the Senate's advice and consent in this process. But I'm skeptical.
The problem is that the general American public is not suited for a debate on the merits of different versions of judicial review. Voters understand rights and privileges and when the Supreme Court makes decisions that they think are right or wrong. They do not understand the intricacies of the role of judicial review in our constitutional order. It doesn't mean they're stupid; they just haven't studied law. Judge Bork's recounting of his interaction with Senator Specter during his confirmation confirms that even many senators on the judiciary committee are not capable of this debate.
What really happens, is that Senators Kennedy and Biden get an opportunity to warp and twist the views of the candidates to scare Americans. In the video I watched, Biden was trying to convince the audience that Bork wanted to repeal the gains of the civil rights movement "wholesale." What? Remember Kennedy's speech before the Bork confirmation hearings? Absolute nonsense. And since jurisprudence is something that the vast majority of voters don't understand, all the explanations from the nominee or his or her witness do not matter. While many liberals are calling for sensible discussion on this confirmation, and for a look at the judge's views and how it will impact the Court, I either do not buy their intentions, or am skeptical that such a thing would happen.
I'm fully confident in Judge Roberts' abilities for these hearings. I think he's going to sail through, and any of these tactics by Kennedy and Biden are going to be futile because Roberts isn't going to get sucked in the way Bork did. He's used to being grilled by the Justices, and these stupid little questions from the two numbskulls are going to be easy hurdles.
Moral of the story? 1) Roberts was an extremely good pick, both because of his abilities and because of his ability to get confirmed; and 2) the advice and consent created by the liberal senators is a brute scare tactic that is used to trick voters. It's hard to see how that is either advice or consent.