AT FIRST BLUSH, not much happened during the first day of John Roberts’s senate confirmation hearings to replace William Rehnquist as chief justice of the Supreme Court. Senate Judiciary Committee chairman Arlen Specter swung his gavel and began the hearing right on schedule–12 o’clock noon, in the Caucus Room of the Russell Senate Office building–and he brought matters to a close four hours later–again, right on schedule. Roberts’s kids, Jack and Josie, were cute, as expected; Chuck Schumer argued that a judge’s ideology mattered more than his qualifications, as expected; and Joe Biden hammed it up for the cameras, as expected. Toward the day’s close, Roberts, without notes, delivered a short and eloquent speech. Specter called Roberts’s soliloquy “profound.” This, too, might have been expected.
And yet it was possible to discern, through the whirr of the cameras, the shape of the next week or so of testimony. The senate is moving, albeit slowly, toward a substantive debate on the meaning of the Constitution. This debate, it seems, will center on two questions.
First: What is the relationship between the judiciary and the other coequal branches of government?
As anyone who took high school government knows, the Constitution establishes three coequal branches of government: the executive, the legislative, and the judiciary. Each branch seeks to increase its own power at the expense of the others. The Republicans, who control the executive and the legislature, voiced complaints about the “activist”–read liberal–judiciary. The courts, the Republicans on the committee said again and again, should follow the law, not make the law.
And, in a way, the Democrats agreed with them. They said that the Court should defer to the legislature, but also restrict the presidency. “Chief among emerging concerns,” said Vermont Democrat Pat Leahy, “are whether the Supreme Court will continue its recent efforts to restrict the authority of Congress to pass legislation to protect the people’s interests in the environment, safety, and civil rights; and whether the Supreme Court will effectively check the enhanced presidential power that has been amassed in the last few years.” Massachusetts Democrat Edward Kennedy agreed: “Our system of checks and balances was drawn up in full awareness of the principle that absolute power corrupts absolutely, and was designed to make sure that no branch of government becomes so powerful that it can avoid accountability.” Watch for both Republicans and Democrats to question Roberts on his view of the judicial power.
The other question that will dominate discussion in the days ahead: Do Americans derive their rights from the Constitution, or from somewhere–or someone–else? Put another way: Is the Constitution simply a document, a blueprint of government, that exists at the pleasure of the people, who derive their rights from nature or “Nature’s God”? Or is the Constitution itself sovereign? Because if the document bestows rights, then the rights it bestows are fluid. It’s just a piece of paper, after all. It–and the rights it grants us–can be amended and expanded as we see fit.
What’s striking is that this philosophical question has partisan implications. Here’s the Democratic position: “Our democracy, our rights, and everything we hold dear about America are built on the foundations of our Constitution,” said Kohl. “Our Constitution is . . .” said Leahy, “the foundation of our rights and liberties.” “Herein lies the crux of the debate I referenced at the outset,” said Biden. “Whether we will have ever increasing protections for human liberty and dignity, or whether those protections will be diminished.”
And here’s the Republican position, put most succinctly by Cornyn: “The Constitution does not guarantee everything that is good, and it does not prohibit everything that is bad.” In this view, the Constitution doesn’t grant rights–indeed, the Bill of Rights is a series of amendments to the original document. In this view, the Constitution is just a rule book, and we would still have rights if tomorrow it ceased to exist.
This week’s hearings, in other words, may end up looking like an advanced course in political theory. Lucky for Roberts that he has classroom experience.
Matthew Continetti is a staff writer at The Weekly Standard.
