Sen. Diane Feinstein (D, Cal.) has stated that because she’s the only woman on the Judiciary Committee
she has a “special role and a special obligation” in grilling Roberts – particularly on his views about the 1973 Roe vs. Wade decision legalizing abortion.
“I happen to feel that it would be very difficult for me to vote yes on a nominee I thought would overturn Roe vs. Wade,” she said.
She plans, in other words, to grill Roberts on abortion in a way that Republicans did not grill Ruth Bader Ginsburg in her nomination hearing. What has happened to the disdain liberals used to feel for “litmus tests”?
I suppose this should no longer be surprising, despite Feinstein’s reputation (treated as fact in this article) as “a moderate Democrat.” Where abortion and racial preferences are concerned, it very difficult to distinguish “moderate” Democrats from mainstream Democrats.
Something else Feinstein said in her remarks to Silicon Valley business executives, however, was quite revealing, although again not so surprising when you think about it.
She said the Rehnquist court had used the Constitution’s interstate commerce clause and the equal protection clause of the 14th Amendment to weaken or invalidate at least three dozen federal laws in the last decade. She said those included the Violence Against Women Act and the Brady handgun law.
She described those two constitutional provisions as the “the primary sources of congressional power” to enact social policy.
Whether Roberts favored such an approach would heavily influence her decision on whether to vote for him, Feinstein said.
“I would like to come away with the view that he was not going to be one who would further restrict and bind lawmakers’ hands and keep them from enacting legislation that the people of this country want,” she said.
There was a time, not yet altogether lost to memory in the foggy mists of the past, when liberals looked to the courts as a bulwark to protect the rights of individuals against misguided legislative majorities and unbridled executive power. Sometimes they still do, when the executive or the legislative majority is Republican, but they haven’t yet come up with a principle to justify their partisan zigs and zags.
Feinstein is upset that the Rehnquist Court ” used the Constitution’s interstate commerce clause and the equal protection clause of the 14th Amendment” to limit Congressional power. Excuse me, but what is a Constitution for if not to use?
It never seems to have occurred to Feinstein that perhaps it was the Constitution that imposed limits on what Congress can do, not “the Rehnquist Court.” That’s no doubt because, as a good Democrat, Feinstein assumes (and assumes everyone assumes) that, as someone wrote recently, that
interpretation is everything, the law — as a separate, objectively existing entity — is nothing, a blank canvas on which interpretation paints the picture the interpreter prefers.
It is also of more than passing interest that Sen. Feinstein regards the equal protection clause of the 14th Amendment, which states that “no state” shall “deny to any person within its jurisdiction the equal protection of the laws,” as one of the two “primary sources of congressional power” to enact social policy. (Section 5 does give Congress the power to enforce the provisions of the Amendment “by appropriate legislation,” but I think it’s quite a stretch to see Section 5 as one of the two primary sources of Congressional power.)
“I would like to come away with the view that he was not going to be one who would further restrict and bind lawmakers’ hands and keep them from enacting legislation that the people of this country want,” she said.”
As you have indicated, it is perhaps the primary function of the Supreme Court (and the Bill of Rights), to restrict legislative majorities, and keep them from passing laws that the people want — when those laws violate individual or minority rights.
The primary purpose of the Bill of Rights, and the Supreme Court, is to act as a check on the majority, and to ensure that individual/minority rights are not trampled by the majority.
Where did feinstein go to law school?