During yesterday’s Supreme Court confirmation hearing, Senator majority whip Dick Durbin provided an inadvertent illustration of the intellectual rigor of Democratic Judiciary Committee members.
Quoting a remark made by the late Paul Simon, a former Illinois senator, during the 1993 nomination hearing for Ruth Bader Ginsburg, Durbin attempted to put the entire nomination process in perspective: “You face a much harsher judge than this committee, and that’s the judgment of history. And that judgment is likely to revolve around the question, ‘Did she restrict freedom or did she expand it?’”
The idea that the goal of the judiciary is to expand freedom is nonsense on stilts. In fact, it’s virtually impossible to expand freedom without simultaneously restricting it. Take, for example, the Supreme Court’s landmark 1954 decision in Brown v. Board of Education of Topeka, which declared racial segregation illegal in public schools — a ruling now deemed sacred by liberals and conservatives alike. In one sense, Brown expanded the freedom of African Americans to send their children to previously all-white schools. In another sense, however, Brown restricted the freedom of communities in Kansas, and across the country, to keep their schools segregated along racial lines.
Likewise, the Court’s still-controversial Roe v. Wade decision of 1973 expanded the freedom of women to seek legal abortions in the first two trimesters of their pregnancy. But it also restricted the freedom of communities nationwide to ban abortions in those first two trimesters. Again, with the expansion of individual freedom comes a restriction of collective freedom.
But even if we interpret Durbin’s comments in a more narrow sense, and assume he meant that the goal of the Supreme Court is to expand individual freedom, does that mean that he’d favor the repeal of highway speed limits? What about restrictions on buying, owning, and carrying guns? Should prostitution be legalized in all 50 states?
If Durbin’s remarks are typical of the thoughtfulness of the Democratic-controlled Judiciary Committee, we’re in for an especially vapid next few days.
– Mark Goldblatt writes from New York.