The Roberts Nomination: A Lot of Meaningless Hot Air
According to its website, the society is a grouping of conservatives and libertarians whose mission is to promote the principles of republican government; to wit, the idea that “the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”
Admirable, most certainly. There is nothing here that any libertarian lover of freedom will disagree with. Nor do I (yet) have any reason to doubt that Judge Roberts himself personally adheres to the principles of the society of which he is a member. Furthermore, no one who has even casually observed congress (same spelling rule) in action over the last six decades will be the least bit surprised that Democratic members of that body, in particular, are horrified at the very idea of a non-activist judge ascending to the nation’s highest court. So far, so normal, as far as supreme court confirmation proceedings are concerned.
What the libertarian cynic who has lost all faith in the existing system will next ask is: Is there a snowball’s chance in the netherworld that Judge Roberts will either 1) be confirmed by senate that is at best spineless and at worst hostile once the extent of his involvement in FEDSOC becomes known; 2) adhere to his federalist principles once seated on the bench, or 3) prove himself to be a genuine libertarian who shows consistent and steadfast respect for the Constitution even when he is the in the minority, often as a lone dissenter on controversial decisions?
Recent history does not offer encouragement. While Justices Scalia and Thomas are currently held up on neon-drenched pedestals as the embodiment of “strict constructionist” jurists, time and again they have demonstrated that when it comes to a decision between the rights of the individual and the rights of the State, they will throw their lot in with the State every time (their recent dissents in the Kelo v. City of New London decision being more a matter of judicial mechanics than grounded in libertarian principles). In this alone there is little reason to believe that Judge Roberts will break the mold, particularly given the contempt with which modern presidential administrations have treated the Constitution. Dubya’s flagrant shredding of the Bill of Rights gives us little reason to believe that he has any genuine love of FEDSOC principles and that Judge Roberts’ membership in said organization is more likely an annoying detail in his curriculum vitae, an obstacle to be overcome in the confirmation process, than a principled selling point to the senate. Look for Bush and his coterie of enforcers to pressure the judge into downplaying his membership in FEDSOC, possibly culminating in the issuance of a mild apology for said membership.
So, in sum, look for the status quo (i.e., judicial dictatorship) to continue on its full-speed-ahead course in abetting the destruction of limited government and the checks and balances system. Since the addition of one strict-constructionist justice is a token gesture that will do nothing to check the high court’s appetite for expanding its own power, Roberts’ confirmation and accession to the bench will be meaningless in the extreme (the words “fat chance” come to mind when pondering the idea that anyone else with his credentials will be allowed anywhere near a seat on the high court). For libertarians to work themselves into a frenzy over the possibility of change is, once again, foolish and naïve in the extreme.