RUSH: We have just one more sound bite I want to play for you ’til we get the Biden sound bite, which was, to date, probably the biggest example of fireworks that we’ve had. By the way, the telephone number if you want to be on the program, 800-282-2882, e-mail address is Rush@EIBnet.com. Senator Charles Grassley asked the following question: “Do you agree with the view that the courts, rather than the elected branches, should take the lead in creating a more just society?”
ROBERTS: Again, it’s the obligation of the courts to decide particular cases. Often that means acting on the side of justice as we understand it, enforcing the Bill of Rights, enforcing the equal-protection clause. But it has to be in the context of a case, and it has to be in the context of interpreting the provision that’s implicated in that case. They don’t have a license to go out and decide, “I think this is an injustice, and so I’m going to something to fix it.” That type of judicial role I think is inconsistent with the role the Framers intended. When they have to decide a case, it may well, from time to time in particular cases, put them in the role of vindicating the vision of justice that the Framers enacted in the Constitution, and that is a legitimate role for them. But it’s always in the context of deciding a proper case that’s been presented.
RUSH: This is a pretty solid answer. I checked during the break here at the top of the hour. Some conservatives are getting a little antsy out there over the apparent Roberts strategery of not answering questions in which he has asked for decisions or opinions as to how he would rule on specific cases, either hypothetical or actual. Some nervous twitches out there that this may make it appear as though the Republicans have put forth someone that we need to hide, that we can’t be honest about. Well, that sort of amuses me, that view. This is simply the Ginsburg rule that is being followed here, and of course the effort to get Roberts to answer specific or hypothetical cases is no more than an attempt to trip him up. It’s clear that he understands what the process here is and how he needs to get through this in order to be confirmed. As I mentioned last hour, this whole confirmation process has gotten blown out of proportion over what its original intent was. In fact, if you go back and look at some of the early days you’ll find that the confirmation process took two days, three days, four days as recently as 50, 60 years ago, not months and multiple months as they can sometimes take now.
And one of the strange things is that there’s no accountability for judges once they’re on the bench. Whatever they said in their confirmation hearings cannot be thrown up at them. For example, if Roberts said, “Roe vs. Wade, settled law,” and “Roe vs. Wade is part of the American fabric,” and, “No, senator, I will not overturn it,” and then he goes and overturns it, or votes to overturn it, what are they going to do to him, other than write nasty things about him in the newspaper — which they’re going to do anyway, depending on how he votes?
There’s no accountability, so there’s no sense in sticking your neck out here. You know, this is not the time to prove your intellectual might against a bunch of gnats, the pseudo-scholars of the senate judiciary committee, and I say that with all due respect. I mean, you’ve got a guy here who is what he is. He’s an obvious judicial legal scholar, and the senators are senators. Some of them are lawyers but they’re not nearly the scholar that he is. That having been said, there are a lot of conservatives that are a little bit concerned. “Uh-oh, are we getting another Souter?” I read the conservative blogs. I read a lot of things that cross the spectrum on the blogs and on the Internet, left and right, and there is a lingering defeatism on the conservative side. It’s born of experience. We were told Souter was going to be great, and we had Souter who was, you know, one of the deciding dotes in the Kelo case, eminent domain, basically saying that governments can choose the higher taxpayer in awarding ownership of property. Souter was a major disappointment. Anthony Kennedy was thought to be something that he’s turned out not to be.
The debate is what changes them. Some people think, “Well, these guys read the newspapers, too, and they have their legacies and they want to be thought of for eternity as brilliant and great contributors to the American judicial process so they’re affected by what’s written about them and they try to please their critics, human nature and so forth,” but already there are some people fretting over Roberts’ lack or unwillingness to answer some specific questions. There’s, “Oh, no, have we been sandbagged again? Oh, no, have we been let down? Oh, no, I don’t know enough about this guy. Is Bush pulling a fast one on us?” That kind of thing is beginning to reverberate out there, not everywhere by any stretch of the imagination.
On the left there are some sighs of relief over Roberts’ answers to questions about privacy and stare decisis, the settled nature of law when considering precedent and whether to overturn it, but the main thing I’m picking up reading the left-wing blogs is they’re bored. They’re bored. There are no fireworks here. They expect this guy to be destroyed by now. They expected the heavy artillery to come out. They wanted this guy to be blown to the moon and he hasn’t been yet so they’re bored. Some on the right, and as I say not all, are getting antsy that we’ve all been sandbagged with this choice, and we won’t know until he gets confirmed and starts working what the case is on that score.