[Mb-civic] What's Too Conservative? - Michael Kinsley - Washington Post Op-Ed

[William Swiggard]

What's Too Conservative?

By Michael Kinsley
Friday, November 4, 2005; Page A23

The Democrats have declared war on President Bush's latest Supreme Court 
candidate, Samuel Alito, without much in the way of weapons. Only two, 
really: the filibuster and the power of persuasion. And the filibuster 
-- because it seems (and is) unfair and anti-democratic -- will backfire 
unless people are convinced that it is saving them from something really 
bad.

And to make the challenge even more daunting, most of the usual tools of 
persuasion aren't available this time. Alito seems like a fine fellow, 
personally. His credentials and qualifications are beyond dispute. 
Unlike Robert Bork, he is not scary-looking. And another Anita Hill is 
too much to hope for. Those are the cheap shortcuts. All that's left is 
a serious argument: Alito is simply too conservative.

The Republican counter-argument will be fourfold: (a) He is not very 
conservative; (b) no one knows how conservative he is, and no one is 
going to find out, because discussing his views in any detail would 
involve "prejudging" future issues before the court; (c) it doesn't 
matter whether he is conservative -- even raising the question 
"politicizes" what ought to be a nonpartisan search for judicial 
excellence; and (d) sure he's conservative. Very conservative. Who won 
the election?

Actually (d), the most valid argument, is one you will never hear, 
although the Harriet Miers detour showed what happens if Republican 
activists suspect that a nominee really might not be on board the 
ideological train.

The other Republican arguments are laughable. Of course Alito is very 
conservative. That's why he got nominated. The process of choosing 
justices is no more political in the Senate than it is in the White 
House. Alito has been a judge for 15 years and has written opinions on 
hundreds of subjects. If that is not "prejudging," answering questions 
at a confirmation hearing certainly is not.

So how conservative is "too conservative"? Democrats like the phrase, 
"outside the mainstream." They also like to emphasize that the next 
justice will be replacing Sandra Day O'Connor, an icon of swing-vote 
moderation.

The notion is that presidents of all stripes are under some kind of 
vague, floating obligation to keep the court in ideological balance. 
This, unfortunately, is a party-out-of-power fantasy. There is no 
requirement of moderation in the abstract. President Bush needn't 
nominate a compromise candidate just to show he's a good sport.

"Too conservative" may just mean anti-abortion. Maybe this is all about 
Roe v. Wade and nothing more. But if you're really looking for a 
standard to judge whether someone is too conservative to sit on the 
Supreme Court, you need to distinguish between three different kinds of 
judicial conservatism.

First, conservatism can mean a deep respect for precedent and a 
reluctance to reverse established doctrines. All judges are supposed to 
be bound by precedent, and it's a bit of a mystery when and why they 
feel empowered to change course. But this meaning of conservatism is 
mainly advanced by liberals, who like the idea that conservatism itself 
will stay the hand of conservative judges in reversing great liberal 
precedents.

Of course each of these liberal precedents -- school desegregation, 
Miranda warnings, abortion choice and so on -- was a precedent-buster in 
its day, making the argument a bit hypocritical. But recent Supreme 
Court nominees have found that asserting a deep respect for precedent is 
a great way to reassure senators that they won't overturn Roe , whatever 
they might think of it on the merits and whatever they actually intend.

Second, a conservative can mean someone who reads the Constitution 
narrowly and is reluctant to overrule the elected branches of government.

Republicans have been waving this flag for decades, reverencing "strict 
constructionism" and the Framers' "original intent" while condemning 
"activist" judges who "legislate from the bench." It's not just that the 
conservative theory of constitutional interpretation is better than the 
liberal theory. It's that conservative judges have a theory, while 
liberal judges are just on an unprincipled power grab. This conceit is 
what allows Bush to insist that he does not impose any ideological 
litmus test on judges, as long as they agree with him.

The truth is that Republicans do not have a simple machine that turns 
the Framers' words into instructions for judges, and Democrats are not 
entirely bereft of judicial philosophy either. It is probably true that 
if you rated all constitutional rulings on a scale of 
literal-mindedness, you would find that on average Democratic appointees 
are more inclined than Republican appointees to take metaphorical leaps 
from the Framers' exact words. It may even be true that judges picked by 
Republicans are on average less likely to tell the elected branches what 
they may and may not do.

But only on average. On some hot issues -- such as affirmative action, 
property rights or gun control -- it is Republicans calling for judges 
to interfere and Democrats who want them to keep their hands off.

The third meaning of conservative as applied to judges is a conservative 
judicial activist: someone who uses the power of the courts to impose 
conservative policies, with or without the benefit of a guiding philosophy.

A judge who preaches judicial restraint but practices activism would be 
a good example of how to be "too conservative." But so is a judge whose 
philosophy of restraint leaves injustices unrectified. Restraint isn't 
always good, and activism isn't always bad.

Judicial power is like government spending: People hate it in the 
abstract but love it in the particular. That makes an honest debate hard 
to have and harder to win. Nevertheless, it would be nice to have one.

http://www.washingtonpost.com/wp-dyn/content/article/2005/11/03/AR2005110301739.html?nav=hcmodule
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://www.islandlists.com/pipermail/mb-civic/attachments/20051104/20542fdf/attachment.htm