The Judicial Philosophy question

I think Chris is being a little overly idealistic here.

Certainly, becoming an appointed Federal Judge injects a political filter into the judicial philosophy of a person, but the philosophies themselves almost certainly exist already. It’s not a liberal v. conservative philosophy per se, but rather how one views the powers enumerated in the constitution. Often this is viewed as ‘strict constructionalist’ vs. ‘living document’, though clearly those aren’t the only two possible views. While Souter may claim that he had no settled views (and claim that honestly), he most likely had a philosophy of how to interpret the law. The problems come, of course, when those philosophies are applied to specific cases – forcing a viewpoint. That’s what the Senate tries to do (on all sides). Specifics aside, though, they are really trying to figure out the judicial philosophy of the candidate – and at this stage, they all have one.

In fact, I would argue that both Chris and I already have a judicial philosophy. Certainly, not as sharply honed as Scalia, Souter, or presumably Miers. But, certainly one nonetheless. I would love to believe that none of the personal beliefs of any of the Justices would play into their decisions, but history (since pretty much the beginning of the court) has shown that’s not the case. The question comes, though, how do we deal with that in the nomination process – a clearly political process. I would argue that the problem stems from the other end of the issue – we have come to a point where nominees have to hide their philosophy in order to get approved (a tactic which is not new to Roberts or Miers, though both of them brought the lack of paper trail to an extreme, I think), which is unfortunate. As divisive as the process is, it has worked out pretty well all in all. Sure, conservatives might point to Bork as an exception, but for the most part Presidents have gotten the nominees they wanted. Even in today’s political climate, which seems to be the most antagonistic in recent memory, Roberts got in and Meirs will probably get in.

Chris is right that the ‘screams of judicial activism’ from the right is hypocritical. As I’ve argued before, there is no judicial role which is not activist – in that it either expands or restricts rights, or possibly both at the same time. The right loves to scream about’ judge made law’, and wanting things left to the legislature, but the ‘conservative’ justices have overturned the legislature just as much as the ‘liberal’. It’s just over different issues. I don’t see conservatives clamoring to appoint a justice to the bench that would overturn Printz v. United States,in which Scalia and the majority restricted Congress’s implementation of the Brady Bill (via the 10th amendment). Or the cases which restrict Congress’s power under the 14th amendment.

Because, they don’t want a non-activist court, they want a court to be activist in a way they agree with.