Roberts hearings

I hereby disavow my prediction that conservatives will scuttle the Roberts nomination on account of his foaming insufficiently at the mouth. Not that there was anything wrong with my logic, mind you; but the opening up of Rehnquist's seat changes the dynamics. Bush now has to decide whether to offer up another consensus nominee like Roberts, or a polarizing nominee like Michael Luttig or Edith Brown. With Bush's poll numbers sinking, I think he's got no choice but to go back to his base and nominate a firebreathing mouthfoamer. In that case, Roberts will get a pass from both sides and all hell will break loose with the new nominee. If he nominates another Roberts, conservative groups and their representatives in Congress will go ballistic.



Let's assume that when the dust has settled we have a Supreme Court that will overturn Roe v. Wade and the other privacy cases the first chance it gets. Shouldn't liberals begin planning for this possibility now by proposing a constitutional amendment defining a right of privacy? Daily Kos talked about this awhile ago. Lots of states have privacy amendments; for example, Montana's constitution says "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest"; Florida's says "Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein." Surely some language could be cobbled together along these lines. In the battle that would follow, liberals could point out that the right to privacy protects not only the right to engage in consensual sexual acts in the privacy of one's own home, and the right to have an abortion, and the right to use contraceptives, but also the right to learn the language of your choice, the right to home school your kids, and a slew of other rights not enumerated in the constitution.



And while we're at it, can we have an amendment to replace the Commerce Clause along the lines of "Congress has the authority to pass laws in furtherance of the national interest", or something like that? Currently, a bunch of important federal laws (such as the Endangered Species Act) are declared constitutional only because of an absurd reading of the Commerce clause in the constitution, which says that Congress may regulate interstate commerce. Roberts and others are likely to push for a narrowing of the interpretation of the Commerce clause. Absent the expansive justification, most of the federal legislation passed since the New Deal will be unconstitutional. Let's protect ourselves!