Friday, May 27, 2005

The Left View Of The Judicial Debate -- Off Base

As the judicial filibuster deal works its way out until the Democrats breach it, I thought I would say a word or two about the whole judicial philosophy thing. It is required if you are a blogger.

I generally lean conservative in judicial philosophy, though I am not as conservative as some. To generalize, the left will read the Constitution and find all kinds of rights in the "due process" and "equal protection" clauses, and sometimes the 9th Amendment. Lino Graglia has a nice article on the subject in this week's WSJ.

The conservative may find nothing substantive in the 9th Amendment.

I think both of those positions are wrong. Nonetheless, the left's portrayal of the views of Bush's filibustered judicial nominees, conservative judicial minds all, in being treated as though they were just like liberal activist judges, only conservative. The threats posed by the two are entirely different.

To explain where the left is coming from, I refer you to this article on a protest of Scalia's presence at NYU. One bright scholars had this to say about Scalia:

"Scalia has got such a backwards world view and he wields so much power," said
Dave Hancock, a Gallatin sophomore who joined the protest mid-march. "To be
honored at a so-called progressive school is sickening."

What is telling about this quote is that Mr. Hancock thinks Scalia wields power. In truth, Scalia does have power to wield. He seldom does, however, because of his judicial philosophy. The risk from the conservative judge, if the left is correct, is that he or she will not be vigilant enough in protecting our rights.

The risk from the leftist activist judge, however, is that he will usurp the role of the legislative branch in an ever growing hubris to find new rights and obligations of government.

The Left is accusing Bush's most conservative nominees of being Judges that "will take us back into the dark ages" and "impose a theocracy on the country." These accusations are not true and, it is clear, could not be true. A conservative judge is arguably more likely to let stand laws passed by legislatures. If these laws "take us back to the dark ages" or "impose a theocracy" then this was done by the legislature. If the conservative judge let the laws stand, well, maybe the judge was wrong. But the judge did not impose the system on the people. The people's representative government did.

If a liberal judge sees a public policy position that the judge doesn't like, the liberal activist judge does not feel constrained to change it. Applying the words "due process" or "equal protection" and whola -- a law is struck, or a right is created in a vacuum of laws. The legislature hasn't recognized that right or how its affects ripple into other laws? No problem, in a vacuum the activist judge makes the laws for us.

The real life examples are easy enough. Abortion is now such a right that every single health and parental regulation that affects it is a case to be decided by a Judge.

The Courts have taken over all death penalty rules. If a state wants to impose the death penalty, which is certainly constitutional with "due process," it must basically let the Court imposed its will in the due process requirements.

Some Judges have even tried to force governments to raise taxes to support programs that the Court deemed Constitutionally required. This is activism, and it comes from the left.

The real irony is that the judicial activists on the Left often let legislatures go too far on issues actually in the Constitution. The campaign finance reform law was allowed to stand, 5-4, because of the more "liberal" wing of the Court. The First Amendment, directly assaulted by this law, was only being protected by the conservative wing of the Court.

The owner of private property facing burdensome regulations that arguably result in a taking has never found a sympathetic ear from the liberal justices of the SCOTUS. Government that takes property must do so only for a public purpose, and the owner must be justly compensated. This is actually stated in the 5th and 14th Amendments. This provision has never been read expansively, i.e., in a way in which government power was limited, except by conservative justices.

The leftist judges are now more than ready to make gay marriage, an oxymoron by definition and a "right" never recognized in the United States by a legislature not forced to by court order, a new right. It is suddenly found in state Constitutions' "equal protection" provisions, and Federal Courts will no doubt try it next.

Do not misunderstand me. It is not good for a conservative justice to not uphold the constitution and strike an unconstitutional law. The power of the Federal and, to a lesser extent, the state governments, were intended to be limited by the specific enumeration of powers in the Constitution and the Bill of Rights. But when abuse comes from the legislative brach, we have remedies even if the Courts fail us. We do not, today, have remedies from the Courts (though the power of the Executive and Legislative branches to ignore a Court decision exists -- with the political will to do so).

The risks to our government are much greater with the leftist judge. No matter how conservative a judge reads the "establishment clause," the judge will not "require" a school to have school prayer or lead Bible classes. No matter how conservative a judge is, he or she will not force a state to ban abortion. The conservative judge is simply going to leave these issues up to the legislature. That may result in a good or a bad law -- even an arguably unconstitutional law. But the people still have a remedy to change the law. The public policy preferences of the Bible thumping theocratic judge only become law if the legislature passes the law. The judge is otherwise impotent to make it happen, and his only sin would be to not strike the law down.

The leftist judge, however, takes over the legislative process. The issue is removed from public debate, the legislature is powerless to act in what should be a broad range of public policy preferences, and legitimacy to the activist's new discovery of law is lacking.

The Left is not at risk from the Conservative judges except in one way. Because the left cannot get its agenda passed in the legislature, the conservative judge takes away the only way that agenda is made law -- by imposition on the people by people wearing black robes.

One Judge, if wrong, leaves us being ruled by our democratically elected legislature. The other Judge, if wrong, end up as pseudo-dictator. Now, which is more consistent with our Constitution and history?


At 11:41 AM, Blogger Brad Warbiany said...

I agree, to a point. Too much is being made of conservative vs. liberal judges. It is just as easy for a conservative to be a judicial activist, although sometimes it doesn't look so bad because they're "on our side". I think Scalia is an example of a true strict constructionist (or "originalist").

You see in the recent ruling on wine direct shipment that it was Scalia, in conjunction with the liberals on the court, that made that decision. Conservatives like Clarence Thomas were against the decision, and it seemed that it was more due to his anti-alcohol bias than any rational reason. He said that it would increase underage drinking, which is pointless. The decision said that if a state allows direct shipping from in-state wineries, they must allow it from out-of-state. It has nothing to do with underage drinking, and most underage drinkers are not buying nice Sonoma Zinfandels or Napa Cabernets anyway.

I think it is a reaction to the liberal judicial activists that make us think that "conservative" equals "strict constructionist". We need more Scalias, not more Clarence Thomas'. (That being said, I don't think Thomas is bad just not as good as a Scalia).

At 11:55 AM, Blogger KJ said...


While I prefer the Scalia decision, I think Thomas' review of 21st Amendment jurisprudence was well done and relevant. He is right that the State's interest is to prevent underage drinking, which is rational. You and I agree that such a rational is poorly achieved with the law at issue. The wisdom of the law, though, is irrelevant to most constitutional jurisprudence. I have heard well reasoned arguments why Scalia was wrong and Thomas was right (by spd rdr, a regular here, though the discussion took place elsewhere).

But you and I agree that the right side won the wine debate. Thomas' dissent notwithstanding, and his disputed nomination as well, he has proven to be a very capable justice.


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