The march toward progress

In an op-ed appearing in newspapers around the country last month, Sen. Edward Kennedy (D-Mass.) opened with this thought:

Before entrusting Judge John G. Roberts with a lifetime position on the Supreme Court, the Senate must be able to determine whether he will uphold the fundamental principles of our Constitution and laws to continue our nation's march of progress or whether he will adopt a cramped and contorted view of our Constitution that will turn back the clock.

I've heard the phrase I highlighted — the "march of progress" or, alternatively, the "march toward progress" — several times during the Roberts hearings, and it's struck me as odd every time. Don't get me wrong, it sounds great. After all, who should be opposed to extending progress in America?

But what does it mean? I define it this way: the willingness to let anyone define what makes them happy, regardless of the impact on society, community or family. And the Democrats can't stand it that the nominee for chief justice of the United States isn't willing to play along with their redefinitions of society, their belief in a "living constitution." They can't stand it that Roberts believes it's not a judge's job to "continue the march toward freedom" (nor to restrict the same). A judge's job is to apply the Constitution to the legal question at hand in any given case. Sometimes that will result in expanding or restricting societal reach, but that should not be the objective.

Nowhere was this more obvious than in today's hearings, specifically an exchange between Sen. Richard Durbin (D-Ill.) and Roberts:

DURBIN: I said at the outset that I thought one of the real measures as to whether or not you should be on the Supreme Court goes back to a point Senator Simon had made: Would you restrict freedom in America or would you expand it? When you are defending gays and lesbians who are being restricted in their rights by the Colorado amendment, you are trying, from my point of view, to expand freedom in America. That, to me, is a positive thing. That's my personal philosophy and point of view. But then when you say, If the state would have walked in the door first to restrict freedoms, I would have taken them as a client too, I wonder, where are you? Beyond loyalty to the process of law, how do you view this law when it comes to expanding our personal freedom? Is it important enough for you to say in some instances, I will not use my skills as a lawyer because I don't believe that that is a cause that is consistent with my values and belief?

ROBERTS: I had someone ask me in this process — I don't remember who it was, but somebody asked me, you know, Are you going to be on the side of the little guy? And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that, I'll look out for particular interests, I'll be on the side of particular interests. The oath is to uphold the Constitution and laws of the United States. And that's what I would do.

I loved that answer! The Democrats want a judge who will take sides regardless of the facts, a judge who will continue the party's remarkable 40-year history of shaping society through the courts because they know they will fail (and have failed) through the ballot box. And John Roberts will have none of it. Sometimes the Microsofts and Enrons and flag burners and white supremacists of the world deserve to get slammed. And sometimes they deserve to win. It just depends on what the question is, and what the Constitution says in response.

Durbin gives it one more try:

DURBIN: Would you at least concede that you would take into consideration that in our system of justice the race goes to the swift, and the swift are those with the resources, the money, the lawyers, the power in the system? And that many times the powerless, the person who has struggled and clawed their way to your courtroom, went through a wall of adversity which the power never had to face? Is that part of your calculation?

ROBERTS: Absolutely. And it's, again, what's carved above the doors to the Supreme Court: Equal justice under law. And the judicial oath talks about doing justice without regard to persons, to rich and to poor. And that, of course, is critically important. You do have to appreciate that there are going to be interests who, for one reason or another, don't have the same resources as people on the other side. The idea is not to give the case to the side with the best resources, the side with the best lawyers, the side with the most opportunity to prepare it and present it. It is to decide the case according to the law and according to the Constitution. And as case after case in the Supreme Court shows, that's often the prisoner who's sitting in his cell and writes his petition out longhand. Sometimes the Constitution is on that person's side and not on the side of the corporation with the fancy printed brief. But the judge's obligation is to appreciate that the rule of law requires that both of those be treated equally under the law.

Roberts did a great job of patting Durbin on the back and essentially saying, "Way to champion the downtrodden." But he slyly dispensed with the idea of weighted rights by stating his belief in equal treatment. And that's as it should be.

Albert Mohler saw the same thing I did. Writing on Tuesday, he noted Kennedy's comments about the "march towards progress," and noted that the comments by Kennedy and Roberts represent "an honest difference of opinion — two rival views of the Constitution, the courts, and the rule of law."

He continues:

Sen. Kennedy sees the judiciary in general — and the U.S. Supreme Court in particular — as an engine for "the continued march toward progress." In other words, as an institution committed to the expansion of rights according to modern interpretations of a "living constitution." He opposes any view of the Constitution that is limited by the actual words of the document and the intentions of its framers.

When Judge Roberts speaks of a humble role for the judiciary and describes the role of the judge as an umpire, he is defending a very different vision of the Court, of the Constitution, and of the nation. The battle is joined — and this one really matters.

That's an understatement; it's a critical moment in our country (along with the next nomination), and that's why groups like NARAL Pro-Choice America and MoveOn.org and their friends are so hot and bothered that the Democrats aren't putting up more of a fight.