Chief Justice John Roberts must stay out of the Merrick Garland debate Sometimes I think Justice Roberts is the most dangerous man in America.

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Mar 22, 2016 No Comments ›› admin

By Lynn Woolley

Sometimes I think Justice Roberts is the most dangerous man in America. With absolutely no regard for the constitutional separation of powers, this man rewrote Obamacare from the bench, handing over the nation’s healthcare to Big Government.

Conservatives, noting that Roberts was a George W. Bush pick, are left to scratch our heads.

Chief Justice John Roberts (Photo: AP)

Chief Justice John Roberts (Photo: AP)

The Constitution clearly prevents the courts from writing law. But that’s what Roberts did. Now, based on a speech he made just ten days before the untimely death of Justice Antonin Scalia, it is entirely possible that Roberts might insert himself into the debate over Obama’s pick. Frankly, it’s none of his business. The Senate has the constitutional authority to approve Judge Garland – or not. Roberts believes legal qualifications are all that matters.

He’s wrong and he should butt out.

What Justice Roberts said just before Scalia passed away.

The Chief Justice inserted himself into the confirmation process, obviously not knowing that just ten days later, an opening on the court would occur. Roberts said…

“…the process is not functioning very well.”

He’s right’ it’s not.

But that’s not the point. The point is that he has nothing to do with it. Based on his amazing, out-of-the box performance with regard to the Affordable Care Act, he doesn’t seem to be in tune with the Constitution. The President has the duty of selecting a qualified appointee. The Senate provides “Advice and Consent” – or not!

“Advice and Consent” comes from Article II, Section 2, paragraph 2 of the United States Constitution:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

This article was a compromise, drafted as a “separation of powers” clause. I do not detect a role for any sitting Supreme Court justice in the appointment and approval of a new justice. Nevertheless, Roberts seems confounded by the fact that politics has entered the process.

He notes that Scalia was approved 98-0. Ruth Bader Ginsburg by a vote of 96-3. But in more modern times, 42 senators voted against Sam Alito — 31 against Sonia Sotomayor, and 37 against Elena Kagan.

Roberts seems to believe that “judicial qualifications” should be the main qualifier.

The Roberts theory goes something like this: a vacancy pops up, the President searches for a nominee that is experienced and qualified under the law, and the Senate consents. The ideology of the nominee will typically mirror the sitting president, but that‘s OK. That’s what the people voted for.

That’s pretty much where I used to be. Other than the idea that “qualified” usually means the nominee attended law school at Harvard or Yale – I could be on board with this method of selection. Then, the people would essentially form the court by virtue of whom they elect president. There’s just one fly in this ointment…

…Edward Kennedy.

In this Tuesday, Aug. 15, 2000 picture, Sen. Edward Kennedy, D-Mass., speaks at the Democratic National Convention in the Staples Center in Los Angeles. (Photo: Ron Edmonds, AP, File)

In this Tuesday, Aug. 15, 2000 picture, Sen. Edward Kennedy, D-Mass., speaks at the Democratic National Convention in the Staples Center in Los Angeles. (Photo: Ron Edmonds, AP, File)

If qualifications matter, the late Robert Bork should have been on the Supreme Court soon after President Reagan nominated him. But Ted Kennedy stepped in and (as Trump has done to Rubio and Cruz) destroyed Bork’s reputation. Kennedy’s attacks were so vitriolic that the nominee’s last name became a verb. Now, demagogues can actually bork a nominee.

[Note that this type of political attack is my primary objection to Donald Trump.]

Reagan made the appointment on July 1, 1987. Bork was supremely qualified. But he did not fit ted Kennedy’s left-wing ideal. Kennedy went on the Senate floor to denounce him:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy … President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

Video: Sen. Ted Kennedy’s “Robert Bork’s America” Speech from BillMoyers.com on Vimeo.

Not a word of this was accurate with regard to Bork, but it didn’t matter. The Hollywood left and the ACLU didn’t like him either, and it all culminated in a rejection. Like Scalia, Bork was an “originalist” and he saw no right to privacy in the Constitution. That explains the “back-alley abortions” comment in Kennedy’s rant.

Video: A small portion of Edward Kennedy’s rant against a most qualified candidate for the U.S. Supreme Court

Robert Bork

Robert Bork

It also explains why Roberts is out of his mind when he suggests that judicial qualifications are what matters.

It’s nice for appointees to know the law. But Kennedy and his band of demagogues forever changed the way Supreme Court nominees are selected and approved. After Bork, no nominee will open up and actually give answers during Senate hearings; they are schooled to avoid giving any concrete answers on anything.

That’s because, following Kennedy’s tirade against Bork, it’s ALL about politics. Furthermore, if Republicans were to make it about qualifications – it would still be all about ideology to Democrats.

And that’s why Chief Justice Roberts should shut up.

lynn@BeLogical.com

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