It's the Judicial Philosophy Stupid...Pt II

The left openly advocates nominating justices based on their political ideology or policy preferences. This is nothing new, and this insistence on ideological purity or "litmus tests" for judicial nominees and the resulting actions by the Court of implementing their policy views over and above the plain meaning of the Constitution is what is slowly eroding the authority of the Constitution as a written document that enumerates and limits the power of the Federal government. This is nothing new and there are volumes written about it. I will surely have more to comment on by the left's disregard for written constitutionalism.

However, it is similarly disturbing that in their zeal to restore the Court to its Constitutional moorings, some conservatives lapse into "policy speak" and seem to be evaluating potential justices based on the results of their rulings rather than the philosophy that undergirds them. Again the debate over the next justice should focus on whether or not they will be a "trustee" of the Constitution rather than an "activist." Here are some examples of Conservatives using a policy criteria to evaluate potential nominees over at Confirm Them.

From someone commenting on Confirm Them:

"I am surprised I have not heard more about Senator Reid’s comments regarding Mel Martinez for SCOTUS. He is Hispanic (Cuban), the same age as Garza (58), and devoutly pro-life (his wife as given an award by a crisis pregnancy center if I remember correctly). He also backed the marriage amendment and is against the government use of racial classifications. Most importantly, POTUS is comfortable with him and likes his life story."

Here is a conservative arguing the Martinez should be considered as a potential nominee because he has the correct policy views. He is pro-life, backed the marriage amendment, and is against racial preferences. Those are apporpriate criteria for a Senator, but not good criteria for a Justice to the Supreme Court. What are Martinez's views on how to properly interpret the Constitution? Does he believe he is bound by a plain meaining of the text of the Constitution when making rulings? It is important to make these arguments based on Martinez's judicial philosophy and not his policy views.

Here is another one from Confirm Them via RedState

"Well placed sources are telling RedState that various business interests are lining up in opposition to Michael Luttig as a possible appointment to the Supreme Court.

According to the sources, Luttig tacks too much to the Scalia position when it comes to government regulation. The source says that business interests are concerned that Judge Luttig might be too willing to accept government regulation — more so than the business community would like. Luttig, it seems, sees eye to eye with Scalia on the United States v. Mead Corporation decision and would give, in the opinion of certain business interests, too much deference to an adminstrative body’s regulations arising from ambiguous legislation under a Chevron analysis."

By all accounts Luttig would be a fine Justice who would be a trustee of the Constitution however conservative business interests oppose him because he might not have the correct policy views on government regulation? This is absurd. If conservatives do not reject policy preferences as a basis from which to evaluate potential Justices, then who will? I am certainly not naive; as a political scientist I know that interests exist and they seek to influence governmental policy if they can. I am not surprised that business interests are seeking to oppose a given conservative nominee, but I simply reject their shortsightedness. Americans left, right, Republican, Democrat, of whatever stripe, must return to a standard for Justices that holds their judicial philosophy as the most important criteria for a position on the Court. We must articulate the importance of nomiating Justices who will be trustees or we will slowly see the Constitution recede into the swirling waters of activism and petty policy debates. We are already seeing this cancer eat away at the confirmation process. When just 20 years ago Scalia was confirmed 98-0 and now he could not get nomiated without a bloody and expensive confirmation "campaign." Something has gone terribly wrong.

As we have let our Court engage in policy making. As the Court has be come a sitting legislature, and at times a sitting Constitutional convention the stakes have become too high for both the left and right to allow the process to proced along congenial lines. The United States are still a democratic republic and Americans are demanding that the Court be more accountable given its policy making posture. This implicit move towards accountability is putting immense stress on a confirmation process not designed to be engulfed in a nationwide political campaign with all of its excesses and corseness.

I will continue to hammer this point as much as necessary. Americans must reject political ideology as a basis for choosing Supreme Court nominees. We need trustees of the Constitution, not activists (either liberal or conservative) and conservatives of all people need to elevate their discussions about the next nominee. They need to avoid talking in terms of political ideology and elevate the discussion to focus on judicial philosophy.

If conservatives won't then who will?