When I was a conservative, naturally I would read many conservative critiques of liberalism, including especially liberalism’s alleged affection for the courts, to accomplish what liberals could not accomplish “democratically.”
The courts weren’t supposed to be used for anything other than interpreting the law and interpreting it in such a way so as not to “legislate from the bench,” went the typical conservative line.
My how things have changed.
In George Will’s recent column, he openly admits that conservatives don’t give a damn about judicial restraint, only conservative results. In one stunning piece, Will forever foreclosed any respectable conservative criticism of an “activist” court. We’re all activists now.
The column features right-winger Clint Bolick’s new book, “Two-Fer: Electing a President and a Supreme Court,” in which he points out the obvious: the executive’s prerogative to nominate federal judges has become “the grand prize in presidential elections.”
Well, liberals have always known that judicial appointments have a long-term significance, and if conservatives are just now learning it then it is too bad for the country. But the thrust of Will’s piece is that it is okay—more than okay, it is necessary—for “conservative” justices to rectify “long-standing judicial mistakes” by overturning laws displeasing to, uh, conservatives.
I want you to absorb the following paragraph, which is crucial to understanding how conservatives really look at judicial restraint:
One hopes that Romney knows that on today’s court the leading advocate of judicial “restraint” is the liberal Breyer, who calls it “judicial modesty.” Contemporary liberalism regards government power equably, so the waxing of the state seems generally benign. Yet Romney promises to appoint “restrained” judges. If, however, the protection of liberty is the court’s principal purpose, it must not understand restraint as a dominant inclination to (in the language of Romney’s Web site) “leave the governance of the nation to elected representatives.”
No, no, no. We can’t let the people’s representatives do the governing, as that might leave us with, well, democracy. Will has made it clear that judicial restraint is for suckers, if Congress happens to pass laws that conservatives don’t like. He ends with this:
Although Hamilton called the judiciary the “least dangerous” branch because it has “neither force nor will, but merely judgment,” it is dangerous to liberty when it is unreasonably restrained. One hopes Romney recognizes that judicial deference to elected representatives can be dereliction of judicial duty.
Get that? “Judicial deference to elected representatives” is not the stance a proper conservative jurist should take these days, what with so many “long-standing judicial mistakes” to correct.
I recommend that all liberals and Democrats digest what Will is saying so we won’t have to tolerate any longer the bullshit about judicial restraint that used to be on the lips of every conservative.
Edmund Burke is dead, and so is his conservatism.