Hentoff on Roberts....

Nat Netoff asks some good questions about the confirmation of John Roberts to the Supreme Court.

One of the more fatuous instructions to the Senate Judiciary Committee is a July 17 lead editorial in The New York Times, "The Right Kind of Justice." Before Roberts' nomination was announced, The New York Times demanded that, "senators should be pressing the president to choose a candidate who reflects the philosophy of the vast majority of Americans."

First of all, where in the Constitution is the requirement that any federal judge must mirror "the philosophy of the vast majority of Americans?" The New York Times gives no clues about how to determine the "philosophy" of most Americans. Do they mean first hiring a grand consortium of pollsters? If so, how would this question be phrased to the citizenry? What would be the definition of this majoritarian "philosophy" to guide the senators in confirming a judge?

Let's suppose, however improbably, that this challenge could be met and Sen. Charles Schumer (D-N.Y.) will finally be able to tell us, with specificity, how he decides whether any judicial nominee is "out of the mainstream," and is thereby to be tossed aside as flotsam.

If, however, a majority of the Senate eventually agree that a judicial nominee must reflect most Americans' philosophies, a stern voice of one of our founders, James Madison, may be summoned by a nonpartisan historian of the creation of the Constitution and its Bill of Rights.

Madison, a principal architect of the document that distinguishes us from all other countries, warned that our "great rights" must be protected, particularly in times of fear or runaway partisanship — against the storms of shifting popular tides. The greatest danger to our liberties, Madison said, is to be found "in the body of the people, operating by the majority against the minority." Schumer's "mainstream" can run us aground on the shoals of mass apprehensiveness