Tuesday, January 10, 2006

Conservative judges

I've stayed out of the Alito battle because, frankly, it bores me. Democrats will try to find something with which to justify smearing him as a racist, sexist, etc and Republicans will fight back, it's political trench warfare at its ugliest and most tedious.

But I did find a useful nugget in John O'Sullivan's Chicago Sun Times column on Monday's hearings - the difference in how two types of conservative (constructionalist) judges rule as oppposed to liberal (activist) judges:

For practical purposes there are no conservative judges who believe that the Constitution is a "living document" that, when properly interpreted, can be made to yield uniformly conservative solutions to the problems of modern America. All conservative lawyers with realistic Supreme Court ambitions believe the role of a judge is to interpret the laws passed by the legislature rather than to make them. They all respect the written words of the Constitution and reject foreign precedents in constitutional cases. And none thinks his own policy preferences should determine his legal judgments.

Where conservative judges differ is in answer to the question put a few years ago by a distinguished Democrat -- the late Sen. Daniel Patrick Moynihan: "What if the Supreme Court makes a mistake?" And that is an important question when the Supreme Court has been making laws based on the liberal policy preferences.

In effect the first school, conservative in temperament, would entrench the established liberal gains since the Warren Court; the second school, conservative in philosophy, would overturn the judge-made successes of liberalism in the past as well as challenge those in the future. Democrats are hoping to demonstrate Alito belongs to the second and more disruptive school.


Post a Comment

<< Home