To some extent, we don't really know what anybody's going to do, and we're really in a position where we have to trust George Bush. He says he knows her, and she will be conservative. Let me add...you know, we talk about conservative. I'm very conservative, more conservative judges, not because I want judges who will give conservatives victories, by holding things unconstitutional that conservatives don't like, like minimum wage laws or rent control. No, I think that important thing is to have a judge who believes in democracy, a judge who trusts the people more than he trusts his or his own...his or her own judgment, and is willing to let the political process operate. That has not been the Court of the last fifty years. The Court of the last fifty years doesn't trust the people. The Con law professors that support it have a very low opinion of democracy, and they feel they need the Court. If you left the decisions to the people for goodness sakes, you'd have prayer in the schools, you'd have capital punishment, you wouldn't have busing for racial balance, you'd have enforcement of criminal law, and who can live in a country like that? Not these liberals...HH: Now, what is your opinion of adding a practitioner, as opposed to an Appellate judge to the Court, Professor Graglia?Wow!
LG: Well, I think there's maybe a lot to be said for it. As her supporters have been saying, she should have more real world experience, and more real world understanding that should be a valuable contribution. But again, I think that the main thing in a Supreme Court justice is do they trust democracy? Are they reluctant to intervene and say that, for example, Ruth Bader Ginsburg wrote the opinion that Virginia can't have an all-male military school. Well, why can't they have an all-male military school? Does the Constitution forbid that? Nowhere that I've ever seen. But they're perfectly...but she doesn't like it. Any discrimination that involves sex, she's going to hold unconstitutional. So to me, it doesn't matter whether I'm for or against all-male military schools, or whether I'm for or against abortion, control of pornography, prayer in the schools, and so on.
HH: Same sex marriage even.
LG: Or same sex marriage. My position is that these decisions, if you read my article in that book, my position is these decisions should be made by the people.
HH: And is that not the true originalist position?
LG: Of course. That's the genius, the very genius intent of the American Consitutional system, was one representative self-government, that the idea, the original, radical idea at the time that people can be trusted to govern themselves, there's no improving on that. Secondly, federalism. Leave most decisions to the local level, so you can have different positions on any issue in different states. What they're doing in Maine you don't have to do in Arizona. And third, separation of powers. When the Supreme Court makes the policy judgments, it's by a majority vote of nine lawyers, unelected, holding office for life, deciding for the nation from Washington, D.C., and the judges perform the legislative function. It violates every Constitutional provision.
It's what I was trying to suggest here.