Judicial conservatives come in many varieties

July 17, 2005|By Michael Hill | Michael Hill,SUN STAFF

Everyone knows that George W. Bush is going to appoint a conservative (or two) to the Supreme Court.

The question is, what's a conservative?

Is it, for instance, someone who wants to let you, the individual, make as many decisions free of government encumbrance as possible? Or is it someone who wants to make sure that the decisions you make conform to traditional values?

That dilemma always dogs the Republican party to some extent.

"The traditional distinction is between social conservatives and economic ones," says James Gimpel, a political scientist at the University of Maryland, College Park. "The economic ones emphasize markets and limited government. The social ones emphasize morality."

At election time, those differences usually get papered over by candidates who take socially conservative positions - say, against abortion rights - and keep economic conservatives happy by favoring tax cuts and similar positions, fudging more problematic issues like immigration policy and relations with China.

But it gets a bit more complex with a Supreme Court justice.

"It's a balancing act that emerges its ugly head at times like this," says Melissa Deckman, a political scientist at Washington College in Chestertown. "In an election campaign, it's very easy for Bush to combine appeals to social conservatives who come out to vote in droves with stances that traditionally are of interest to the business community.

"But when you are dealing with a lifelong appointment to the federal bench, especially the Supreme Court, the differences among these groups begin to come to light," she says.

As Thomas Keck, a political scientist at Syracuse University says, "There are a variety of different types of judicial conservatives. The big choice president Bush is faced with is which kind to choose, or not choose.

"The way most of the coverage puts it is in terms of a conservative or a moderate," he says. "That tells you a little bit, but the more specific question is what kind of conservative does he pick?"

Religion and politics

Deckman has studied the effect of religion on politics in recent years, especially the religious right.

"When I think about the word `conservative,' I think of the demand from the religious conservatives," she says. "That would mean judges willing to think about turning over Roe v. Wade, putting a stop to gay marriage, exactly what the religious conservatives are looking for."

But a justice who would do that might be violating tenants of other brands of conservatism. Overturning Roe v. Wade - the decision that gave constitutional protection to abortion - would mean going against a judicial precedent, and traditionally conservative judges are supposed to respect precedent.

"I think the principle of respecting precedent has always been only one of a number of principles that have been part of anyone's judicial philosophy," Gimpel says. "A judge is willing to set that aside whenever he finds it politically convenient to do so."

And stepping into the gay marriage issue would mean putting the federal court into a matter - licensing marriages - that has been the exclusive province of the states. That would be counter to a major thrust of the conservatives on the current court who have sought to limit the influence of the federal government and return more powers to the states. Indeed, the Federalist Society - which advocates a return to states' rights - is considered the incubator of much of the judicial philosophy that now emerges from the Supreme bench.

Again, Gimpel says that a lack of consistency on this issue is not surprising. "There is nothing inherently conservative about states' rights," he says, asserting that notion arose in the 1950s when those trying to protect segregation in the South were claiming states' rights as their philosophy.

"It happened to be aligned with conservative issues in the middle of the 20th century, but now you see the states' rights argument used to promote things like physician-assisted suicide and the medical use of marijuana," Gimpel says. "It's really pretty empty as a principle that is filled with whatever states happen to be putting in it at the time."

Dividing lines

But, again, those issues bring up the social conservative/libertarian conservative divide. One would want the court to interfere with states to enforce traditional principles while the other would say let the states do what they want without interference from the Big Brother in Washington.

"Another big divide among conservative judges is between the ones I would call pragmatist judges and judges who emphasize sweeping constitutional principles," Keck says.

"On the current court, Justice Thomas is known for issuing very clear statements of conservative constitutional principles and urging the court to adhere to them regardless of the consequences," he says.

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