Just because it is impossible for judicial nominees to openly discuss the principles of jurisprudence doesn't mean that an argument about those principles isn't going on before the Senate Judiciary Committee. Liberals often criticize conservative thinkers on and off the bench for being insensitive to the rights of women, minorities, etc. Conservatives are likely to respond that judges ought to read and interpret the law as it is, and not make it up as they go along. In both cases the boilerplate is misleading.
Conservatives are just as capable of compassion and concern as their liberal colleagues, and it is unavoidable that judges make up a lot of constitutional law as they go along. The Constitution is the DNA of the Republic, and all three branches must construct and reconstruct the flesh and bones.
The real difference between the two sides today concerns the role of politics in jurisprudence. Conservatives recognize that politics plays a role, and would like the bench to be stocked with folk from their side. But they think that there is something more than ordinary politics at play. The Constitution contains principles that ought to be respected, regardless of whether those principles stand in the way their political agenda. A conservative might well vote for a law that put limits on abortions (say, by requiring spousal notification). But he or she would object if any judge declared that spousal notification was constitutionally required, for there is no such principle in or derivable from the Constitution.
Liberals, guided by the idea of a "living," which is to say evolving Constitution, have to come to believe that Constitutional interpretation is nothing but politics. The right decision in any case is the one that produces the right political outcome: protecting abortion rights, preserving the right to die with dignity, etc. There are no principles or institutions that trump these political outcomes. This is indicated by the following observations in the Wall Street Journal. Alito's critics made a big deal out of the idea of precedent. You do respect precedent, they kept asking. But do they?
As Judge Alito noted, some rulings deserved to be overturned, such as Plessy v. Ferguson, which sanctioned the separate-but-equal doctrine in 1896 and was superseded by Brown v. Board of Education in 1954. Dred Scott was also deservedly overturned, though it took a Civil War to do it.
No liberal would argue that those precedents ought not to be overturned. Nor would any conservative that I am aware of. But consider more current issues.
Certainly, liberals don't mind overturning precedents they don't like. In Lawrence v. Texas, the 2003 ruling that banned state sodomy laws, a 6-3 Supreme Court majority eagerly overturned Bowers v. Hardwick, a 5-4 decision from 1986 that had declared such laws to be the prerogative of the states.
And in Roper v. Simmons, last year's decision banning the death penalty for juveniles, the Court's liberal bloc (assisted by the protean Anthony Kennedy) was only too happy to overturn Stanford v. Kentucky, which was decided in 1989. In justifying this reversal, moreover, the Court put less reliance on American case law than on foreign legal precedent.
For conservatives, precedents are something to be taken seriously. They should be overturned only when there are very strong reasons for doing so, and not willy nilly a few years later, because the Court is feeling more senstitive. One can imagine Alito preserving a rule that he found to be politically repugnant and judicially unsound. One cannot imagine a Judge Schumer doing so. Precedent for Schumer is merely a weapon to be deployed when convenient, and ignored when not. Of course, Senator Schumer may have the right idea about the Constitution, but that is his idea.
Recent Comments