Speaking of Judicial Philosophies…

The Washington Times has the latest on the John Roberts nomination. Contrary to some press reports, Hillary Clinton says she has not made up her mind to vote for Roberts’ confirmation. The Democrats say they want to drag out the beginning of the Senate Judiciary Committee hearing until September–the administration wants it to begin in August–and it appears that they have Arlen Specter’s support as to the schedule.
But here’s what I really want to comment on: The Democrats say they need more time so they can “learn more about Judge Roberts’ judicial philosophy, especially on whether he will defer to precedent or seek to undo modern American jurisprudence that many conservatives say has been wrongly settled.” We hear this a lot; the Democrats worry that Roberts and other nominees might not adhere to the doctrine of stare decisis, which, in general, holds that courts should follow their own precedents rather than revisiting settled principles.
But the Democrats’ loyalty to the principle of stare decisis is highly selective. In fact, most of the decisions most beloved by liberals have overturned precedents that held the opposite. For example, in Lawrence v. Texas, which in 2003 discovered for the first time a Constitutional right to homosexual sodomy, the Court expressly overruled its own decision in Bowers v. Hardwick, which was decided as recently as 1986. So as far as the Democrats are concerned, stare decisis applies only after the Court has made a liberal ruling. Liberal rulings are carved in stone, whereas “conservative” rulings–those that represent the traditional understanding of our Constitution and laws, as written–can and should be overturned freely.
As Paul has noted, we aren’t sure exactly what Roberts’ judicial philosophy is. But we’re pretty certain it is more principled than the Democrats’.


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