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From his response to a questionnaire submitted to the Senate Judiciary Committee, it has been reported Supreme Court nominee John Roberts has pledged to honor established precedent if confirmed as a jurist to the nation’s highest court. While such posturing might be an elaborate rhetorical ploy to throw off the snarling liberal jackals off his trail, it does not bode well for the nation if such sentiments are actually an accurate summation of his legal philosophy.
In defense of his position, Judge Roberts continued, “Precedent plays an important role in promoting the stability of the legal system. A sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges...They do not have a commission to solve society’s problems...but simply to decide cases before them according to the rule of law.”
But what precedents are you going to abide by, Mr. Roberts? And if he lacks the courage to step out from behind the judicial shadow, should he be entrusted with a position that requires a backbone beneath the black robe?
While he is correct that it is not the role of judges to solve all of society’s problems, that pony has been out of the gate for quite a while now. One might be able to make an argument that it’s been all downhill since Marbury v. Madison.
When Judge Roberts pledges to uphold precedent, exactly where does his fealty to the rulings of his predecessors end? Should a case come before the Court in need of clarifying the extent of the case allowing municipal authorities to snatch private property on behalf of developers, will Roberts have enough manhood in his gavel to sweep away this appalling ruling or will he stand by the figure he has cut for himself as a wimp and obsequiously adhere to a decision simply because some other judge more confident about asserting themselves ethically handed down the decision whether or not the decision has anything to do with the Constitution as originally envisioned?
In other statements, Judge Roberts contends he has no opinion one way or the other regarding law that has already been decided. Perhaps he should be reminded that history does not look kindly upon men that hide behind skirts, even if the dress in question happens to be a judge’s robe.
Had Judge Roberts lived in other times, one wonders if he would have possessed the courage to break with decisions now considered to be infamous tragedies of American jurisprudence. At one time Dred Scott was precedent; at one time Separate But Equal was precedent. And in this time of war, anyone concerned about the abridgements of liberties that breakout in such turbulent periods such as the curtailment of speech and internment camps should be deeply concerned about any jurist so eager to enunciate a go-with-the-flow-go-along-to-get-along mentality.
Rulings such as Dred Scott or Plessy v. Ferguson were not right at the time they were handed down nor did they somehow magically become wrong with the passage of time. They were always wrong because they violated an eternal, transcendent standard and not because of their failure to conform to changing social sensibilities.
Francis Schaeffer observed in A Christian Manifesto of the contemporary judicial climate, “By sociological law we mean law that has no fixed base but law in which a group of people decides what is sociologically good for society at the given moment; and what they arbitrarily decide becomes law (41).” Thus it is from within such an intellectual framework that Judge Roberts is capable of claiming a fidelity to legal precedent while lending his legal expertise to the efforts to mainstream sodomy.
The standard in such a legal context is no longer so much right and wrong or good and evil as it is “stability” in Robert’s words or “peace and affluence” as Dr. Schaeffer use to warn. But if these are to serve as the highest legal ideals, would the slaves have ever been freed since the Antebellum world might have remained “stable” if it hadn’t been for those pesky abolitionists and those insisting upon their God given right to live free.
And this is ultimately the crux of the entire debate: do we see rights as coming from God or do we see rights as coming from the state? For if our rights come from God, they cannot be legitimately taken away from those living within His revealed standards since God is perfect, all knowing, and unchanging. But if we see our rights as coming from the state, they are dependent upon alterable conditions and the fluctuating whims of magistrates since government is flawed, dimwitted, and changeable.
Realizing this is the only way to overcome America’s crisis in jurisprudence. Although contemporary establishmentarian conservatives have an inkling something is out of whack, their proposed solutions will do little to halt the ongoing decline of this great Republic.
This disturbing shortcoming was particularly evident in a April 28, 2005 White House press conference when President Bush responded to a question about what he thought about comments by Tony Perkins of the Family Research Council that Democrats oppose Bush’s judicial nominees on religious grounds. The President responded he did not think his nominees were being opposed on religious grounds but as a matter of judicial philosophy. But where does the President think one’s judicial philosophy comes from exactly?
One is not going to want babykillers to assume the highest legal offices in the land if one truly loves God and strives to keep His commandments. Likewise, if one does not think God exists or merely does as some kind of celestial buffoon for human amusement smiling upon anything and everything that titillates our basest passions, one is going to do everything within one’s power to curb the influence of jurists not seeing such debaucheries as some kind of innate liberty or the effort to curb such an infringement upon those freedoms that are.
Throughout the course of his ministry analyzing Western culture in light of Biblical principles, Francis Schaeffer warned that a conservative Humanism is little better than a liberal Humanism. For whereas liberal ones seek to recast all of society in their own radical image, the conservative ones --- though not as abrupt with their agenda of cultural transformation --- are so sold out to the spirit of the age that they eventually come to endorse positions they would have considered scandalous just a short time ago. And where Justice Roberts decides to stand amidst this grand struggle will determine the future of America for decades to come.
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