Arlen Specter, Pennsylvania's senior senator in age, tenure and intelligence, will question John Roberts on the application of the Commerce Clause (CC) and his respect for Congressional authority. Specter's rationale is solid: Roberts' interpretation of the CC, the broadly interpreted bedrock for every expansion of Federal Authority since 1932, is the REAL issue facing this nomination. Liberals have used the CC to impose harsh penalties on wife beaters: Abused women, "...can't effectively participate in the workforce, thereby harming interstate commerce." Conservatives use the CC to exorcize their favorite societal peeves too: "A fetus whose brain has been sucked through a straw cannot participate in the workforce...." Roberts position will have far-reaching applications, and we need to know now.
Dovetailing this issue, Specter rose an equally compelling, and not wholly unrelated, issue. He is angry at the Supreme Court's derisive tone towards Congress. Though I can sympathize with anyone's frustration over the Congress of 'Terri's Law,' I likewise respect Specter's frustration with the smug Ivory Tower intellectualism on the Court. Equally smug Brad Grantz argues a court stacked with legal scholars is a good thing, but that Scholars are often ideological and dogmatic is evident on any college campus. Practicality and pragmatism, with a healthy respect for public will, are critical to good judgement and good judges.
The past 100 years of CC rulings reflect the court's willingness to stay in step with the public rather than holding too closely to the exact wording of the Constitution. Ironically, doing so seems the best method of keeping the Constitution a functioning document. When the Court struck down several provisions of the New Deal, popular opinion nearly permitted FDR to stack the court, thus dangerously expanding Executive power. The Warren Court, considered radical at the time, fostered 30+ years of divisive cultural infighting that percolated to the surface in the form of Jerry Falwell. Holding the Constitution too closely smothers its ability to be a "...living & breathing document," that reflects the changing nature and needs of our Republic.
The Court needs to be pragmatic and assess the climate of the nation. However, the Court must maintain itself as a bastion of impartiality immune to the fickle winds of public opinion. It can neither be a bulwark of fringe special interests nor rule on abstract legal principle alone. It must remember it is an institution of the people, not a college of Oracles. Sandra Day O'Connor struck this balance more than any other justice. Where Roberts falls on the Commerce Clause will provide insight as to whether he is able to do so as well. One opinion about frogs, written on behalf of another Judge, is simply not enough to know where he stands.