How Conservative Is “Too Conservative”?

Rules for the Alito Games.

Alito: Right, righter, rightest

The Democrats have declared war on President Bush’s latest Supreme Court candidate, Samuel Alito, 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 persuaded 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. Alito seems like a fine fellow, personally. His credentials and qualifications are beyond dispute. Unlike Robert 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: 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 is going to find out, because discussing his views in any 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?

Actually D), the most valid argument, is one you will never hear, although the Harriet Miers detour showed what happens if Republican activists suspect that a nominee really might not be onboard the ideological train.

The other Republican arguments are laughable. Of course Alito is very conservative. That’s why he got nominated. The process of choosing justices is no more political in the Senate than it is in the White House. Alito has been a judge for 15 years and has 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 be replacing 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. President Bush needn’t nominate a compromise candidate just to show he’s a good sport.

“Too conservative” may just mean anti-abortion. Maybe this is all about Roe v. Wade and nothing more. But 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, and so on—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 are “legislating 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 President Bush to insist that he does not impose any ideological litmus test on judges, as long as they agree with him.

The truth is that Republicans do not have a simple machine that turns the framers’ words into instructions for judges, and Democrats are not entirely bereft of judicial philosophy either. It is probably true that if you rated all constitutional rulings on a scale of literal-mindedness, it would show that, on average, Democratic appointees are more inclined than Republican appointees to take metaphorical leaps from the framers’ exact words. It may even be true that judges picked by Republicans are on average less likely to tell the elected branches what they may and may not do.

But only on average. On some hot issues—such as affirmative action, or property rights, or gun control—it is Republicans calling for judges to interfere and Democrats who want them to keep their hands off.

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.