Perhaps I should have written something about the Roberts and Alito nominations before this, but I just haven’t been able to get very excited one way or another about either nomination. I will admit to a certain obscene pleasure in watching Miers go down in flames, she was so clearly not qualified and a real embarrassment to Bush, who could use a few more embarrassments, in my opinion. Ah, if only he recognized them as such. But I digress.
I have no particular problem with conservative jurisprudence, depending on how you define conservative. To over-simplify, I see two very different camps that support “non-activist” judges.
The first of these camps genuinely believe that the constitution should be taken seriously, that the federal government is fairly limited in what it can legislate. If the congress wants to pass laws that are not “enumerated”, they should have to obtain constitutional amendments before passing them. This camp probably feels this way because they are great respecters of precedent and tradition. They are making an implicit assumption that long-lasting rules that have been accepted by many generations of Americans have value in them that ought not be overturned too quickly by our generation. As examples, this camp may agree with the results of Roe v. Wade (abortion) and Brown v. Topeka (schools) but they think there was no constitutional basis for these decisions. My main complaint with members of this camp is one of practicality. As a practical matter, it might be impossible or take too long to pass an amendment enabling something that really needs to be done. Of course, people will differ on what “really needs to be done”.
The second camp mostly disagrees with the decisions themselves. Businesses might not like all the regulations, so they attack the process by which the regulations were passed. Pro-lifers want to outlaw abortion, and would like to get rid of R v. W so they can do so. This camp may sound just like the other camp, but in reality they are very different. The only reasons they don’t like “activist” judges are the decisions themselves. If they controlled the judiciary, you can bet they’d be using it to push their own agenda. Needless to say, I have a great deal of difficulty with this camp. Even if they were pushing an agenda that I agreed with, I’d get nervous with the exercise of power. I may generally agree with the results of R v. W, but I’m a little nervous about how it was done.
If Bush had nominated judges who seemed to come from the second camp, I’d be screaming about it. But neither Roberts nor Alito seem to be of that camp. They both seem to be interested in strictly applying the constitution. Although that isn’t my preference, I can certainly live with it. Thus I haven’t been able to get too excited one way or another about either nomination. Of course, I can’t be sure that they really aren’t in the second camp. They are both far too clever to expose themselves as fire-breathing fundies, for example. The one concern I do have about them is the new overall makeup of the supreme court. Of the nine, 7 are white males, and 5 are Catholics. As history has shown, the catholic church has a habit of using governments to press it’s agenda. Go back 50 years and recall Sundays, birth control and abortions. I trust that the judges, like Kennedy, won’t be pushing a catholic agenda upon us. As always, time will tell.
November 15, 2005