Mr. Roberts

The John Roberts confirmation hearings are underway, and while my heart wants to be positive about his nomination, the actual evidence still keeps going the other way.

Yesterday, in his opening statement (after the usual blather about "judicial restraint" to which all nominees, conservative or liberal, pay lip service), Roberts said:

Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open to the considered views of their colleagues on the bench.

Slavish devotion to precedent (stare decisis, as the lawyers call it) has ruined our legal system, with bad ruling built upon bad ruling until the U.S. Constitution has become unrecognizable. In fact, it's the very opposite of humility. Rather than being subject to the Constitution, this view says that judges ultimately trump the Constitution, and that we dare not overrule them when they do because "stability" is more important than the rule of law.

The late Chief Justice William Rehnquist, while fairly conservative, will ultimately go down as a middling chief because of his own unwarranted devotion to "settled law." The reason most conservatives did not consider him to be on the level of Justices Thomas and Scalia is because, while frequently conservative, he'd ultimately jettison an originalist reading of the Constitution when the incorrect ruling of some addled judge (or previous Supreme Court) came into conflict with it.

Roberts has already, in less than seven minutes of testimony, indicated that he too will sill submit the Constitution to the judges. It certainly doesn't make him unusual--that's the dominant judicial philosophy in the legal profession today. But unfortunately President Bush promised us a Thomas or Scalia, a promise he has quite evidently welshed on.

(UPDATE: Even as I write this, Judge Roberts is facing questions on day two of his hearings. We're not even an hour in, and in response to a question on Roe v. Wade from Arlen Specter, Roberts has said Roe is "..entitled to respect under those principles"--i.e. stare decisis. He also said that it is “a jolt to the legal system when you overturn precedent. It is not enough that you may think that a prior decision was wrongly decided." Hmmm. And finding, say, a right to abortion in the Constitution after nearly 200 years of nobody finding it isn't a jolt to the legal system? Funny how liberals are quite satisfied to "jolt" the legal system--repeatedly--when it suits their ends. Only "conservatives" do this silly fiddling while Rome burns.)