William Bernhardt - Capitol Threat

Bless you, Ben thought, as he took the mike. “As I was saying before: no hypothetical cases, no questions about political positions or issues, no prying into personal matters.”

“Why, Mr. Kincaid,” Senator Matera said, flashing a smile that could have belonged to a woman thirty years younger, “you’re taking away all the fun stuff.” Laughter filled the gallery, easing much of the tension. She was good, Ben realized as he gazed across the dais at her twinkling eyes. Be afraid. Be very afraid.

“Judge Roush, let me ask you a question I think won’t bother even Mr. Kincaid. As I said, I’ve been reviewing your record,” which of course meant her staff had been reviewing his record and had provided her a summarized coverage, “and it appears to me you fancy yourself something of a judicial activist. Why do you—”

“Excuse me,” Roush said, interrupting, “but I’d like to correct that.”

“Judge,” Matera said, still smiling, “I haven’t asked you a question yet.”

Roush spoke over the laughter. “Maybe not, but you’ve made a statement that is patently incorrect. I am not a judicial activist. To the contrary, I am a judicial conservative. If I had to label myself with a single judicial philosophy, it would probably be fundamentalist positivism.”

“Well…you’re using words too big for a simple country girl like myself. Perhaps you could explain the difference.”

“The theory of judicial activism—and here I use that phrase as it is used in legal and academic circles, not as it is bandied about by politicians—is that a judge can interpret the law so as to advance political beliefs that are not currently enshrined in established law. A fundamental positivist recognizes that society does change over time and that occasionally the law requires modification, but nonetheless considers it a judge’s foremost duty when interpreting the law to ensure continuity. To follow precedent. To recognize that the law must be a knowable, predictable entity.”

“So you don’t think judges should usurp the role of legislators?”

“Certainly not. I don’t know anyone who does. That’s a charge leveled by critics who don’t like a decision. Rather than simply acknowledging that intelligent people can still have different opinions, they blame ‘activist judges’ and imply that they have done something illicit or improper, something judges aren’t supposed to do.”

“And what exactly are judges supposed to do?”

“Enforce the Constitution, and the lesser laws to the extent that they do not conflict with the Constitution.”

“And nothing more.”

“Nothing more.” Roush smiled. “Believe me, that’s plenty enough to keep a man busy.”

Ben eyed Senator Matera carefully. She had a way of looking out the corner of her eyes that reminded him of Brer Rabbit in the Disney cartoon—the look of the trickster. He kept waiting for the other shoe to drop.

“Well, then,” Matera continued, “how do you feel about these so-called penumbral constitutional rights?”

“For starters,” Roush said, “I think it was a terribly poor choice of language. When Justice Brennan wrote that a woman’s right to choose was a constitutional freedom that could be found in the penumbra of the Constitution, he implied to some readers that it wasn’t really there.”

“That is what the word ‘penumbra’ means, isn’t it? Something on the outside, like an aura. But not contained within the entity itself. One of my clerks was kind enough to bring a dictionary.”

“Exactly my point. I don’t think that’s what Justice Brennan meant. I think he meant to say that there are rights squarely embedded in the Constitution that are not expressly delineated.”

Matera wagged her head. “I must tell you, Judge, this is sounding very activist to me.” More laughter. She may not say much, Ben thought, but she does know how to entertain.

“With respect, ma’am, I disagree. A firm tenet of the fundamental positivist’s judicial outlook is the fact that the world changes. We all know that. Tempus mutantor. The founding fathers could not have anticipated developments like the automobile, television, the Internet. The increased ability of the government to oversee, and potentially control, our lives. The widespread technological innovations that have made invasion of privacy so easy. That being the case, we have two choices. We either admit with resignation that the Constitution is no longer relevant—or we look to the core values that underlie the Constitution and apply them to new issues as they arise. The individual’s right to privacy was clearly one of the fundamental concerns of the Constitution. You can see it in the First Amendment, the Second, the Fourth—almost everywhere, especially in the Bill of Rights. The founding fathers never contemplated that a government would attempt to ban abortion; women had quietly been obtaining abortions since the first European settlers came to this country. All Justice Brennan did in Roe v. Wade was apply the fundamental principle of privacy to a new issue.”

Matera peered down through her glasses. “I take it then that you support Roe v. Wade ?”

Ben grabbed the mike. “No specific cases, remember?”

Roush smiled. “It’s all right, Ben. I can answer that. The truth is, as a judge, I neither support nor fail to support any individual decision. I review the facts of an individual case and apply the law. So long as there are no other intervening considerations, I apply precedent.”

“And Roe v. Wade is one such precedent?”

“Yes, ma’am. Has been for more than thirty years.”

“But it could be reconsidered?”

“Any decision can be revisited in a subsequent case, if there are grounds. New issues. But that can’t be based on anyone’s—any judge’s—personal beliefs. It must be based upon new consideration presented by the case at bar.”

“So you wouldn’t strike down Roe v. Wade. ”

“Ma’am—”

“Right, right. No specific cases.” She paused, then turned a page in her notes. Ben mentally commanded his fingers to stop drumming on the tabletop. This little exploration into legal philosophy had been fine, possibly dry enough to persuade a large portion of the audience to switch channels, but Ben knew that Matera had other more malevolent goals for the first day of the hearing, and waiting for her to show her true colors was giving him an ulcer.

As it happened, he didn’t have to wait much longer.

“Judge,” Matera continued, “if you won’t talk about Roe v. Wade, perhaps the single case of greatest interest to everyone in America, would you consent to discussing Powers v. Georgia ?”

Ben felt his heart drop. They had known this was a possibility, of course. But somehow, he had thought that even Senator Matera wouldn’t have the effrontery to try this tactic.

“What about Powers, sir? Would you have any interest in repealing it?”

Roush licked his lips, pulled the microphone a little closer, all the while doing what Ben thought was a magnificent job of keeping his emotions in check. “I can’t address any ruling in the abstract. I have to know the circumstances of the case at bar.”

“Oh, come now, Judge. You must have some personal feelings about this.”

Ben winced; it was the least emotive facial expression he could manage. Powers v. Georgia was the infamous 1988 Supreme Court case which, in a decision written by Justice Rehnquist, upheld a Georgia sodomy law, declaring that it did not offend the Constitution to criminalize consensual relations between male homosexuals. What the Dred Scott case was to African Americans, Powers v. Georgia was to the gay and lesbian community.