Judge John Roberts and Two Senators

Judge John Roberts should easily be confirmed as the next Supreme Court Chief Justice. He is obviously a brilliant, decent man with an impeccable background and exceptional experience in the law. We were happy with the choice of John Roberts once we heard him say he would treat all that came before the Court equally and that he sees the role of a judge an umpire and not a player. All the rest is just political theater.

You can read the transcript of yesterday’s senate hearings here. While the spotlight was on Roberts, we found the following remarks by Senators Graham and Brownback to give us reason to cheer. It was just great to hear Senators express thoughts that have crossed our minds more than once.

Senator Graham - But There Is A Limit

The Kelo case. Of all the things that have been decided, and I haven't been to my office since the recent case about the pledge -- though it may have trumped it -- I have gotten more phone calls about the Kelo case than anything the Supreme Court has done lately.

And for those who may be tuning in, the Kelo case basically said that the government can take your property, give it to someone else, another private person because it could be used at a higher and best use and it may generate more taxes.

I'm not going to ask you to tell me how you decide the Kelo case. But I just want you to know -- as Senator Kyl indicated, this is the only time you can hear from us -- that my phone is ringing off the hook and that every legislature that I know of is going into session as quickly as they can to correct that.

So I want to leave with you -- and when you meet your new colleagues, please let them know that some of the things they do that we watch. And that the courts are able to do their job because the public defers to the court and respects the court, but there is a limit.

Graham’s delivery of that last line was priceless and to truly appreciate the moment you have to see the tape.

Senator Brownback - Doesn't This Strike You As Odd

First Amendment, everybody knows: "Congress shall make no law abridging the freedom of speech."

Well-known, well-regarded, highly -- broadly interpreted by the courts to the point that you would get court opinions -- and I just want to quote these. This is actually in a Supreme Court opinion, that the court would in the past four years when this opinion was issued, in -- I think it was 2003 -- the last four years, the court had sternly disapproved -- sternly disapproved -- restrictions upon certain forms of speech such as virtual child pornography. The court said, can't do that, limit that speech. Tobacco advertising: the court said, can't limit that speech. Dissemination of illegally intercepted communications: you can't limit that speech. Sexually explicit cable programming: can't limit that speech.

All right, so the court has been, it seems to me, very pronounced in this area -- free speech, can't limit it -- basically to the Congress. Can't limit it.

And to the point, you know, where it goes to the issue of virtual child pornography -- and that was the case of Ashcroft v. Free Speech Coalition. And I want to describe this in a little bit of detail, because I want to back it up and ask another question associated with it.

Ashcroft v. Free Speech Coalition, the court struck down a congressional statute regulating pornography, in this case Child Pornography Prevention Act of 1996, expanded the federal prohibition on pornography to include virtual child pornography -- realistic images which were made without the use of actual children.

But the Congress based its opinion on the basis that pedophiles will use this material to recruit, over the Internet, individuals to draw in children into sexual activity.

And so we found out about that, investigated it, did a number of hearings and said, "We've got to stop this stuff."

The court says you can't do it. It's limitation on free speech.

Then, not long ago -- as a matter of fact, the opinion was issued in 2003 -- we had a big debate on campaign finance reform, in front of the Congress. One of the members of our committee, Senator Feingold, was one of the lead sponsors of the McCain-Feingold piece of legislation.

And it came in front of the courts -- McConnell v. Federal Election Commission. And the court largely upheld the McCain-Feingold law, one section of which did this: prohibited corporations, labor unions and other organizations from political advertisement that mentioned a specific candidate or office holder within 60 days of a general election.

You may be -- you're probably very familiar with this. It was a big national debate.

Under the court decision, this congressional action prohibiting speech -- and not just any speech, and not just pornography. This is political speech close to the time when people are making decisions on elections.

The court decided that this congressional action prohibiting political speech was upheld under a First Amendment ostensibly designed to protect this, I would contend, form of political participation and speech.

And I looked at that. I voted on the McCain-Feingold law. I did not think there was any way the court would hold that this is constitutional, because you're limiting political free speech, and right when people are making their decision.

And one of the lead reasons or lead abilities we have in this country is to be able to criticize the government, and certainly at a point in time when it matters the most -- right ahead of elections.

How do you square such a broad interpretation of the First Amendment in these cases and such a limitation on political free speech? Can you explain that to me?

Doesn't this strike you as odd, these two side by side under the same First Amendment?

We could never understand how the Court found the restrictions on political speech in McCain-Feingold to be constitutional. The restrictions on political speech seem even more absurd when the same group of judges found virtual child pornography to be protected under the First Amendment. It was terrific to hear an elected representative take the words right out of our mouths because it sure does strike us as odd.