August 19, 2005, 8:19 a.m.
The Uphill Fight
Can John Roberts restore the constitutional order?

By Robert H. Bork

EDITOR'S NOTE: This piece appears in the August 29, 2005, issue of National Review.

The nomination of John Roberts brings up the recurrent and crucial question of who is to govern America and, therefore, what is to be the course of our culture and morality. It is hardly surprising, then, that the power seekers of the left-wing wolf pack are on the prowl, attacking Judge Roberts with their customary mendacity.

"With every passing day, it is becoming clearer that John Roberts is one of the key lieutenants in the right-wing assault on civil-rights laws and precedents," proclaims Ralph Neas, the far-left ideologue who heads People for the American Way. Not to be outdone, Sen. Ted Kennedy asserts that in doubting that Congress's power over interstate commerce extends to preservation of the arroyo southwestern toad — a homebody that never moves out of California and is not engaged in commerce — Roberts is somehow endangering Social Security, Medicare, civil rights, and, for all we know, the Declaration of Independence and the Emancipation Proclamation. Listening to the absurd Kennedy and Neas accusations brings to mind an old Irish ballad: "Johnny, we hardly knew ye."

WHAT KIND OF JUSTICE?

It's true that, such blatant nonsense aside, there has been some doubt even among supporters of the nomination about how John Roberts will vote on crucial constitutional issues. The mists began to dissipate somewhat, though by no means completely, with Judge Roberts's written answers to a questionnaire from the Senate Judiciary Committee. He disparaged legal activism, saying that the judge's role, "while important, is limited" and does not extend to "areas of policy making reserved by the Constitution to the political branches." Judges "do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law."

These are admirable generalities, so far as they go, and it would have been politically unwise for the nominee to go beyond them. That said, it may be useful to speculate about what these sentiments will mean in operation once the judge becomes a justice...

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