By Dave Crater "For me, Mr. President, this is a very close question. But I must resolve my doubts in favor of the American people, whose rights would be in jeopardy if John Roberts turns out to be the wrong person for this job," Senate Minority Leader Harry Reid (D-NV) said today in announcing his opposition to the President's nominee for Chief Justice.
Translation: Despite a clear affirmation by Roberts that a "right to privacy" is created by the liberty clause of the 14th Amendment - an affirmation troubling to many conservatives and one that certainly would have been troubling to the authors of the 14th Amendment - Judge Roberts has not sufficiently endorsed the orthodox liberal activism Sen. Reid has grown to expect of American judges. The people, apparently, are demanding such activism and senators who heroically defend it.
Coincidentally, as I type I sit in the courtroom at the University of Colorado School of Law, where a panel of experts is discussing the law as it relates to same-sex marriage. At the center of the discussion is an April 2003 ruling by Denver District Judge John Coughlin not only giving a past lesbian partner parenting rights to the child of her now-heterosexual and now-Christian former partner, but instructing the child's mother not to expose her child to any religious teaching at home that could be considered "homophobic." Though Judge Coughlin likely would claim he was only resolving doubts in favor of the American people, the case led to an attempt by the Colorado legislature to impeach him.
The attorneys who argued the case on appeal are part of the panel; the attorney who argued in defense of Coughlin's ruling sincerely opines that the ruling changed nothing in Colorado law, but only articulated what has been Colorado law for 40 years. She too, it would seem, has resolved her doubts in favor of the American people.
A psychologist on the panel refers to the recent decision by the American Academy of Pediatricians (AAP) to endorse same-sex marriage - a decision he says elicited more intense protest among AAP membership than any other issue in AAP's history. AAP's president subsequently wrote a concerned email to colleagues noting that the issue may undermine the ability of AAP leadership "to use AAP to promote positive change." The AAP was formed as a scientific, medical association; now, in addition, it ostensibly helps resolve its members' doubts in favor of the American people.
The homosexual psychologist who gave expert testimony in the Coughlin case, also a panelist, claims of same-sex marriage, "It doesn't matter what the policy people say; it doesn't matter what the legal people say; this is about technology, diversity, and what's already going on around us. This is a done deal." In appealing to the Old Testament story of God, Abraham, and the city of Sodom, he recalls God's willingness to spare the city if 10 righteous people could be found there. He concludes sincerely that God is on the side of the minority and willing to work with small sample sizes.
Perhaps this panelist is right; perhaps same-sex marriage is a done deal. Perhaps many other senators share Sen. Reid's opinion that decent jurists like Judge Roberts now represent a threat to the American people. But the record of our time read by future generations should show that such views developed not amidst honest deliberation and prudential reflection, but amidst Orwellian newspeak that treated the most radical social and legal innovations as either a simple affirmation of past precedent or a mere resolution of honest doubt in favor of the American people.