Senator Schumer's Double Standard

Richard Epstein's editorial entitled Who Will Judge the Inquisitors? notes that Senator Schumer's behavior toward Supreme Court nominee John Roberts is hypocritical:

…Hence I should like to take up the gauntlet thrown down by Sen. Schumer to identify three recent Supreme Court cases that I disagree with…

…I think we have to play by a different set of ground rules. Hard debate is a two-way street. Every time I defend my views, I am rightly at risk for criticism and refutation. But Sen. Schumer thinks his views set the gold standard for constitutional interpretation. But he, too, should be at risk to questions about his deeply held beliefs. Here is how I would start.

From the get-go, I would insist that we view with suspicion the oft-hurled epithet of "judicial activism." Judicial review, which allows the Court to strike down federal and state legislation, is an indisputable part of the Constitution. The structural and substantive prohibitions the Constitution contains are large. One can be a "strict constructionist" and still believe that major legislative initiatives, executive orders, and administrative rules are unconstitutional. By the same token, the government should be accorded a wider degree of discretion in running its own affairs -- the military, courts, schools, etc. -- a view that is largely permissive of government affirmative action programs that parallel those which comparable private institutions adopt on a voluntary basis. In these cases the private benchmark offers a useful measuring rod for state discretion.

But for Sen. Schumer my questions address the coercive use of government power. What presumption should attach to the constitutionality of the use of state force? This vexed question of the "standard of review" is nowhere stated in the Constitution, and thus ultimately derives from a sense of its basic purposes, which I take to be the preservation of "ordered liberty" -- with a state strong enough to rule, but not so strong as to snuff out the liberties of ordinary people to own property, enter contracts, worship, and speak as they please.

Given that view, the proper response to all forms of state regulation of private activities should be to subject them to serious judicial scrutiny, in order to see that they achieve their legitimate objectives. Judged by this twin standard, many decisions come out badly...

[Epstein then goes on to comment about three specific cases, comments which are worth reading in detail for the full impact of his argument.]

Note that my three cases all involve situations in which responsible constitutional interpretation requires some strong acts of judicial intervention [which Sen. Schumer would oppose in the three cases]. Liberals like Sen. Schumer think that this presumption [of judicial intervention] works in cases like gay marriage (where they have a strong case) and abortion (where their case is far weaker, owing to the interest of the unborn child).

…My main point here is that Sen. Schumer's own views are subject to powerful intellectual counterattack, so that before he and his allies cast stones on John Roberts, he should recognize that he and his ilk also live in a glass house.

But, then again, we know what Senator Schumer's agenda has always been - even before John Roberts was nominated.

For the Left, this nomination battle is a raw power struggle focused on sustaining the recent practice of the Supreme Court to legislate on policy issues from the bench in ways that would never be endorsed by the public in state and local legislative bodies.

Here are some previous postings which contain further suggestions for the proper role of the judiciary:

Judicial Activism: Commandeering the Public Debate & Violating the Founding Principles of America
"The Supreme Court Has Converted Itself From a Legal Institution to a Political One"
Are You an Originalist?
How Original Intent Does Not Equal Conservative Judicial Activism
"Restoration of Judicial Restraint Assists the Restoration of Good Will, Because Democratic Governance Gives Everyone Their Say"
Rediscovering Proper Judicial Reasoning
Orrin Hatch: Don't Overstate "Advise and Consent"
The Ginsburg Precedent
Senator Santorum: Judicial Activism is Destroying Traditional Morality
Relinking Constitutional Law & Jurisprudence to the Constitution
The Kelo Decision: When Private Property Rights are Eroded, Our Freedom is Diminished

Here are two examples of how the Left views the same issues:

Viewing the Supreme Court Nomination Battle From the Far Left
"We Are Going To Go To War Over This"

ADDITIONAL INFORMATION:

Here are other postings on this site about the related issue of the judicial filibuster debate:

The Filibuster...Continued
The Injustice of Smearing A Fellow American For Political Gain
The Senate Judicial Filibuster: Power Politics & Religious Bigotry
Mac Owen's open letter to Senator Chaffee
Senator Mitch McConnell on the Judicial Filibuster
The Foolish Fourteen: An editorial by the former Dean of BU's Law School
A Power Line overview of the filibuster debate
Revisiting the Case for Janice Rogers Brown