Biden's House built on sand...

The hearings have been at times good theatre and at even better times they have provided very instructive insight into the difference between those who see a strong policy role for the Court and those who do not. One exchange between Biden and Roberts is particularly insightful. This is from the Day Three Transripts...

"BIDEN: See, you've told me nothing, Judge.
With all due respect, you've not -- look, it's kind of interesting, this Kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them.

There's no more possibility that anyone one of us here would be elected to the United States Senate without expressing broadly and sometimes specifically to our public what it is we believe.
The idea that the founders sat there and said, "Look, here's what we're going to do: We're going to require the two elected branches to answer questions of the public with no presumption they should have the job as senator, president or congressman. But guess what? We're going to have a third co-equal branch of government that gets to be there for life; never, ever again to be able to be asked the question they don't want to answer. And you know what? He doesn't have to tell us anything. It's OK, as long as he is" -- as you are -- "a decent, bright, honorable man, that's all we need to know. That's all we need to know."
Look, let's -- I only have three minutes and 45 seconds left -- and by the way, I'd ask permission for the record to introduce the number of questions asked by Senator Hatch and others, very specific questions, as to Justice O'Connor with very specific answers on these very questions. I'd like to ask that they be submitted to the record.

SPECTER: Without objection, they will be made part of the record.

BIDEN: Let me conclude.. "


You see Biden realizes that key policies that he supports and his supporters hold dear, rest on the policy activism by the Court, thus it is inconcievable to him that a Judge's policy views should not be open to public inspection and debate. His ignorance of the Founder's views on the role of judges is astounding for a sitting Senator. Biden suggests lamentably that the Founder's did not mean to set up three coequal branches where one branch would not be subject to public scrutiny based on their policy views. Yet, that is exactly what they were doing and meant to do. Biden is simply ignorant of those facts, or is twisting them. If he were intellectually honest he would say "The Framers meant for judges to be free from public scrutiny regarding their policy views, but the Court now plays a policy role and therefore I see it appropriate for you to answer policy related questions." But Biden doesn't say this he merely incorrectly suggests that the founders expected judges to answer questions on their policy views. Read Federalist #78 and see if you can concievably come to Biden's conclusion. Federalist #78:
.

"The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."
.

Later on in Federalist #78

.

"To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity."

.

How does Biden draw is ruminations from any careful study of the Framer's intent? He simply can't. Let's see how Roberts answered Biden's challenge.

.

"Now, the only point I was going to make earlier, because I do think it's an important one -- you make the point that, "We stand for election and we wouldn't be elected if we didn't tell people what we stand for."

Judges don't stand for election. I'm not standing for election. And it is contrary to the role of judges in our society to say that, "This judge should go on the bench because these are his or her positions and those are the positions they're going to apply."

Judges go on the bench and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed.
That's inconsistent with the independence and integrity of the Supreme Court."

.

Bottomline, Robert's get's it...Biden doesn't. Biden and many other liberals have staked their core policies in the sands of the "living" Constituion. Now he is deathly afraid that Roberts and others will cause the sands to shift and destroy policies he values and his constituents value. Roberts is challenging Biden by asserting that our written Constitution is not and should not be built on the sand of judicial policy preferences, but on the rock of its own text as ratified by a super majority of the people.

.

There is an old sunday school song with a chorus that states "The foolish man built his house upon the sand...the foolish man built his house upon the sand..." the next chorus sings, "The wise man built his house upon the rock...the wise man built his house upon the rock..."

.

Biden was showing clear frustration with Roberts. Biden should be frustrated with himself, vor by the standards of the song above, Biden has built his house on sand and in that sense, he has been a "foolish man."