Don’t Apologize, Governor Romney!

Monitoring radical mosques is exactly what we should be doing.

Radical mosques are the spark lighting the fuse that can kill Americans. That has killed Americans. That will kill more if we let it. Such killing sprees, moreover, are plotted by young, male, Muslim militants who often enter to the United States on student and other visas from places known to sponsor or export terrorism.

None of this is news. But it is cloaked in taboo. Thus, controversy was stoked last week when Mitt Romney, the Massachusetts governor and potential Republican 2008 presidential hopeful, did something that you should never do in this country. Not, at least, if you want to escape the caterwauling of civil liberties extremists and a cacophony of activist Muslim organizations whose knee-jerk approach to "opposing" terror is indignant spewing at every effort made to prevent it.

He told the truth.

Gov. Romney suggested that in the ongoing war, we ought to be investigating mosques that preach Islamic militancy and the young men who come to this country from rogue precincts of the Islamic world.

For giving voice to such a notion, Romney's comeuppance is to have the usual suspects screaming for an apology..

Instead, we should be giving him a medal.

Andrew C. McCarthy
National Review Online
http://www.nationalreview.com/
mccarthy/mccarthy200509190947.asp

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Expanding Rights vs. Protecting Rights

Judge John Roberts’s Senate confirmation hearings last week were only the opening salvo in a broader war over the future of the Supreme Court. Most observers expect Justice O'Connor's replacement to generate far more contention than Judge Roberts did, since that nominee could substantially change the Court's ideological composition. As the war for the Supreme Court heats up, it's important for conservatives to understand why the nominations matter. Many conservatives have seized on issues where the Court has played, or might play, a decisive role--such as abortion, gay marriage, or the separation between church and state. While these issues are important, they're only part of a broader trend: The left has been fighting the culture wars through the courts for more than three decades. Its agenda has been advanced not through sound legal reasoning, but through political philosophy masquerading as constitutional interpretation. Unless conservative jurists can change our country's legal trajectory, the left may win the culture wars through clever use of the least democratic branch of government.

While the left agrees that the culture wars are being fought through the courts, its portrayal of how this is occurring clashes with reality. For example, an editorial in the September 19 issue of the Nation claims that Judge Roberts "has established a twenty-five-year track record as foot soldier in a legal revolution profoundly destructive to the public interest. Indeed, his views are among the most extreme to emanate from a cohort of partisan Republican activists intent on reversing decades of settled policy on civil rights, voting rights, women's rights, privacy rights and access to justice."

The two major misleading portrayals in this passage are that Judge Roberts has been part of a destructive "legal revolution" and that Republican activists have been scrambling to reverse "decades of settled policy." The real legal revolution was led by the Warren Court, which began interjecting the Supreme Court into policy questions in an unprecedented manner. That revolution continues to this day, and the agenda it has advanced is decidedly left of center. And while the Nation can legitimately claim that decisions such as Roe v. Wade have been "settled policy" for decades, that fact, too, is deployed in a misleading way. That the Supreme Court "settled" an issue does not make it good law, and leftist publications are not known for defending policies simply because they're "settled." After all, prior to Lawrence v. Texas it was settled policy that states could constitutionally pass legislation outlawing homosexual sodomy, but the left hardly decried Lawrence.

Daveed Gartenstein-Ross
http://www.weeklystandard.com/
Content/Public/Articles/000/000/006/077ldnzy.asp

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Chief Justice Roberts

ON THE FINAL DAY OF the Roberts hearings, Sen. Richard J. Durbin of Illinois tried one last time: "If you've made one point many times over . . . the course of the last three days," he told the judge, "it is that as a judge you will be loyal and faithful to the process of law, to the rule of law." But "beyond loyalty to the process of law," he asked Roberts, "how do you view [the] law when it comes to expanding our personal freedom? . . . That's what I've been asking."

And so, in various ways, had Durbin's Democratic colleagues been asking about such matters--ones "beyond loyalty" to the rule of law. In response to Durbin, Roberts stuck to the point he had indeed made "many times over." Reframing the senator's question so as to reach the core issue, Roberts said, "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 is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is 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.'  The oath is to uphold the Constitution and laws of the United States, and that's what I would do."

That exchange crystallized the fundamental difference between John Roberts and the eight Democrats on the Senate Judiciary Committee. The Democrats believe a good judge will move "beyond loyalty" to the rule of law, if necessary, and seek to advance certain political outcomes--in Durbin's question, the expansion of personal freedom. Roberts dissents: He believes a good judge will distinguish between law and politics and stick resolutely to the law, regardless of the result. Roberts will go not with the little guy because he is the little guy, or the big guy because he is the big guy, but with the guy the Constitution says should win. He'll not look out for "particular interests" because his oath obligates him to support not this or that interest but the Constitution and the laws of the United States.

As for just how Roberts will go about interpreting the law--and thus carrying out his oath--his testimony last week confirmed his earlier observation that he does not have "an overarching judicial philosophy." Roberts finds merit in textualist and originalist methodologies but does not hold to them exclusively. For example, he (unlike Justice Antonin Scalia) may sometimes find it necessary to consult legislative history in interpreting a statute of Congress. He also believes that certain broadly worded provisions in the Constitution--such as the due process clauses--effectively call on judges to declare their meaning. On the issue that sunk the Robert Bork nomination, Roberts holds that the Constitution encompasses "a right of privacy," even though it is not spelled out in the text. During the hearings, not incidentally, Roberts denied that the right of privacy was "a general right of privacy" and declined to say whether that right, first recognized in 1965 in the Griswold case, includes the abortion right constitutionalized eight years later in Roe v. Wade. Roberts's testimony also suggests he has a high regard for stare decisis and may well be reluctant to overrule a precedent he concludes was wrongly decided.

Terry Eastland
The Weekly Standard
http://www.weeklystandard.com/
Content/Public/Articles/000/000/006/092cavxd.asp  

Judicial Tourism
What's wrong with the U.S. Supreme Court citing foreign law?

By Mary Ann Glendon

References to foreign law in Supreme Court opinions have become controversial. Nevertheless, it was startling when Sen. Tom Coburn suggested in the Roberts confirmation hearings that justices who cite foreign authority might deserve impeachment. At first glance, it is hard to see why these side-glances at what other countries do have provoked such alarm. True, the references have increased somewhat, but they remain rare, and no one suggests that the court has directly based any of its interpretations of the Constitution on foreign authority.

As the issue was framed recently in a debate between Justices Stephen Breyer and Antonin Scalia, it comes down to this: The former says that if a judge abroad has dealt with a similar problem, "Why don't I read what he says if it's similar enough? Maybe I'll learn something." Yet the latter would exclude such material as wholly without bearing on the meaning of the Constitution; and quite apart from originalism, the different political, constitutional, procedural and cultural contexts in other nations drastically limit its relevance. Justice Breyer counters that the experience of others "may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem."

The Breyer view may sound sweetly reasonable; but when one looks at the cases where foreign law has figured prominently, it is evident that the practice is more problematic than proponents have let on. Earlier this year, in Roper v. Simmons, a 5-4 majority struck down the death penalty as it applied to persons over 15 and under 18. Justice Anthony Kennedy stated for the court that "the overwhelming weight of international opinion [is] against the juvenile death penalty," and that "the opinion of the world community, while "not controlling our outcome, does provide respected and significant confirmation for our own conclusions." In its effort to delegitimate state laws in question, the Roper majority, including Justice Breyer, not only reached out to "international opinion," but selectively cited various social science materials.

There is, of course, no such thing as a "world community." As Eleanor Roosevelt and her fellow drafters of the Universal Declaration of Human Rights well understood, universal rights are premised on the acceptance of a legitimate pluralism in forms of freedom. Human rights become real only when brought to life in concrete cultural settings. In our system, rights are protected not only by courts, but by the structure of our government--designed to give us citizens a say in the kind of society we wish to bring into being, limited only by constitutional text and tradition. But neither our design for government nor our model of judicial review has been widely copied. "International opinion" usually means the opinions of likeminded judges, academics and journalists who wish to use the courts to impose their vision of the good society.

Mary Ann Glendon
Opinion Journal
http://www.opinionjournal.com/
editorial/feature.html?id=110007265