You’d think Christmas was coming early to our nation’s capital given what several Members of the Senate Judiciary Committee have been doing.

It started with Charles Schumer, continued with Arlen Specter and now Patrick Leahy is getting in on the act.  They’re each “making a list and checking it twice” — a list of questions, that is, to “find out” if President Bush’s nominee for Chief Justice is “naughty or nice.”

All three Senators claim they need to know what Judge John Roberts thinks about every word in the Constitution — and even some that aren’t — before they can confirm him to the highest court in the land.  And, they’re not alone.

Not only have numerous special interest groups “released” their own questions for the nominee, but seven female Senate Democrats put up a website asking anyone and everyone, “What would you ask Judge Roberts?”

And then there are the liberal academics.  This week, University of Chicago Law Professor Cass Sunstein — author of Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America — suggested question after question that Judge Roberts “should be expected” to answer to “show what sort of Supreme Court justice he would be.”  That came a month after another legal scholar, Duke Law Professor Erwin Chemerinsky, instructed Senators to “insist that Roberts answer questions about his views and indicate that he cannot be confirmed without full and honest replies.”

So what’s behind this push for a grand inquisition into what Judge Roberts thinks?  After all, the Administration released more than 50,000 pages written or even merely reviewed by the nominee when he worked in the White House and at the Justice Department.  And, that’s not to mention the numerous legal briefs he filed and judicial opinions he issued, which have always been public.  The answer is simple: The Left believes that Justice Roberts — or any other judge, for that matter — will be bound by nothing other than what he believes.  Not the laws enacted by our elected representatives, nor the Constitution ordained and established by “We the People.”

In other words, liberals don’t understand the limited role for unelected and unaccountable judges in our representative government, which derives its legitimacy and “just Powers from the Consent of the Governed.”

This mistake was obvious on the night the President nominated Judge Roberts.  Indeed, just minutes after the announcement, Senator Schumer, along with Senator Leahy, took to a podium to say the nominee would have “to answer questions about his views” because he had been “nominated for a position where he can … make law.”

This fallacy has been repeated over and over again ever since, most recently and notably by Professor Chemerinsky and his colleague Duke Law Professor Catherine Fisk.  The two claimed this week that both “[c]onservatives and liberals believe judges should make law that invalidates undesirable action by elected branches of government.  They just disagree about when judges should exercise that power.”  As a result, pointed questioning is necessary to “debate the kind of law John Roberts would make as a member of the country’s most powerful court.”

That’s fine, except the professors’ premise, that “judges make law — it’s their job,” is not only historically but also philosophically wrong.

You don’t have to reach very far back to demonstrate the historical falsity.  A little more than a decade ago, when a more liberal justice faced confirmation, then-Judge Ruth Bader Ginsburg refused to answer numerous questions about her beliefs because, in her words, “my own views and what I would do if I were sitting in the legislature are not relevant to the job … of a judge.”  In fact, the Senate Judiciary Committee Chairman back then, Democrat Joseph Biden, explained that Supreme Court nominees historically never appeared for questioning and, as late as 1949, Justice Sherman Minton had been confirmed overwhelmingly even when he refused “to testify at the hearing on his nomination to the Court.”

Philosophically, the proposition fares no better.  It is true that judges must “interpret the broadly worded provisions of the Constitution and decide the meaning of vague terms” in complex statutes, as Professors Chemerinsky and Fisk put it.  But that is a far cry from asserting, as the professors do, that “judges should make law that invalidates undesirable action by elected branches of government” whenever and however they choose.

Judges can’t and shouldn’t make law when they personally believe a particular duly enacted law or constitutionally ratified provision is “undesirable.”  Unelected and unaccountable judges are bound by the Constitution and laws just like the rest of us.  If they weren’t how could ours continue to be a “government of the people, by the people, for the people”?

That doesn’t mean there’s nothing the Senators should ask Judge Roberts.  It just means they should be asking whether he understands that “We the People” have chosen someone else to do our lawmaking.