How conservative is `too conservative'?

November 09, 2005|By MICHAEL KINSLEY

The Democrats have declared war on President Bush's latest Supreme Court candidate, Samuel A. Alito Jr., without much in the way of weapons. Only two, really: the filibuster and the power of persuasion. And the filibuster - because it seems (and is) unfair and anti-democratic - will backfire unless people are convinced that it is saving them from something really bad.

And to make the challenge even more daunting, most of the usual tools of persuasion aren't available this time. Judge Alito seems like a fine fellow, personally. His credentials and qualifications are beyond dispute. Unlike Robert H. Bork, he is not scary-looking. And another Anita Hill is too much to hope for. Those are the cheap shortcuts. All that's left is a serious argument: Judge Alito is simply too conservative.

The Republican counterargument will be fourfold: (a) He is not very conservative; (b) no one knows how conservative he is and no one will find out because discussing his views in detail would involve "prejudging" future issues before the court; (c) it doesn't matter whether he is conservative - even raising the question "politicizes" what ought to be a nonpartisan search for judicial excellence; and (d) sure he's conservative. Very conservative. Who won the election?

Of course Judge Alito is very conservative. That's why he got nominated. He has been a judge for 15 years and written opinions on hundreds of subjects. If that is not "prejudging," answering questions at a confirmation hearing certainly is not.

So how conservative is "too conservative"? Democrats like the phrase "outside the mainstream." They also like to emphasize that the next justice will replace Sandra Day O'Connor, an icon of swing-vote moderation. The notion is that presidents of all stripes are under some kind of vague, floating obligation to keep the court in ideological balance. This, unfortunately, is a party-out-of-power fantasy. There is no requirement of moderation in the abstract. Mr. Bush needn't nominate a compromise candidate just to show he's a good sport.

If you're really looking for a standard to judge whether someone is too conservative to sit on the Supreme Court, you need to distinguish between three different kinds of judicial conservatism.

First, conservatism can mean a deep respect for precedent and a reluctance to reverse established doctrines. All judges are supposed to be bound by precedent, and it's a bit of a mystery when and why they feel empowered to change course. But this meaning of conservatism is mainly advanced by liberals, who like the idea that conservatism itself will stay the hand of conservative judges in reversing great liberal precedents.

Of course, each of these liberal precedents - school desegregation, Miranda warnings, abortion choice - was a precedent-buster in its day, making the argument a bit hypocritical. But recent Supreme Court nominees have found that asserting a deep respect for precedent is a great way to reassure senators that they won't overturn Roe, whatever they might think of it on the merits, and whatever they actually intend.

Second, a conservative can mean someone who reads the Constitution narrowly and is reluctant to overrule the elected branches of government. Republicans have been waving this flag for decades, reverencing "strict constructionism" and the framers' "original intent" while condemning "activist" judges who "legislate from the bench." It's not just that the conservative theory of constitutional interpretation is better than the liberal theory. It's that conservative judges have a theory, while liberal judges are just on an unprincipled power grab. This conceit is what allows Mr. Bush to insist that he does not impose any ideological litmus test on judges, as long as they agree with him.

The third meaning of conservative as applied to judges is a conservative judicial activist: someone who uses the power of the courts to impose conservative policies, with or without the benefit of a guiding philosophy. A judge who preaches judicial restraint but practices activism would be a good example of how to be "too conservative." But so is a judge whose philosophy of restraint leaves injustices unrectified. Restraint isn't always good, and activism isn't always bad.

Judicial power is like government spending: People hate it in the abstract but love it in the particular. That makes an honest debate hard to have, and harder to win. Nevertheless, it would be nice to have one.

Michael Kinsley is a commentator based in Seattle. His e-mail is

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