A Polemic for Conservative Judges

This is in response to the discussion started by Nies on judges by his July 3 and July 6 posts and the attending comments. Let me begin by clarifying that I use the word "conservative" not in a political sense. This is not an argument in favor of judges who agree with conservative political views. This is an argument for judges who are slow to change and narrow in their interpretation. Americans must separate judicial decisions from political decisions. I would prefer a judge that makes a decision I believe is bad policy as long as that judge did his or her best to apply the constitution or law as written to the facts of the case than a judge that ruled on the side that favors my political beliefs. For example, I am against the death penalty, yet I do not believe the US Supreme Court should find it unconstitutional. I even think that their decision that executing a minor is cruel and unusual is wrong, yet I fully supported the state legislature when it banned it the year before the USSC did. I do not want to implement my political beliefs through the courts. That is totally against their purpose.

Public policy in a democracy is to be enacted through the democratic process. The purpose of the legislative branch is to turn the will of the people into law. It is not physically possible for the will of the people to be made clear for every single situation, so we write down laws. The courts then get the fun job of applying what was written down to every single possible scenario that comes before them. It is not an easy job. Laws are not always clear on their face, and the facts are usually not so clear that the law can be easily applied to them. The judge has to do his or her best to take what the law says and then apply it. The judge is not supposed to skip over the law and attempt to divine the will of the people. Only electorally accountable officials get to do that. What if a judge does his or her best to implement the will of the people but gets it wrong? The people have no recourse to change it except by getting the legislature to implement their will again.

The problem is ten times worse when we are taking about a constitutional decision. If a judge misinterprets a law, the legislature does have the power to correct it. If a judge misinterprets a constitution, then the only remedy available is constitutional amendment. When that constitution is the US Constitution, amendments do not come easy. Therefore, a judge should not takes risks when interpreting the constitution. He or she should not try to implement the best policy or what he or she thinks the people want. He or she should be very strict when construing the language of the constitution (hence, "strict constructionists"). Only the text itself or the history of the making of the text should be used in determining what it means.

"Living constitutionalists" believe that the constitution should evolve with the time. As society progresses, its constitution should progress with it. I believe this is true, but it is not the province of the judiciary to evolve it. The amendment process (as cumbersome as it is) is how it should evolve. Living constitutionalists have no problem with the evolution happening through decisions of the courts. This is dangerous in a democracy because now unelected judges are making decisions as to how public policy has evolved. They are deciding what is good and right. Although they may do it with a good heart, it is not their role in our society. The public policy of the Framers may not be the public policy we want today. The Framers said that senators should be elected by state legislatures. We grew, decided that was wrong, and amended the document. It was public policy to not allow women to vote, but we eventually figured out it was wrong. We didn't need judges using the vague Due Process clause or Equal Protection clause to tell us what was right. I will admit that many bad public policies continue for a long time until we figure out what is right, but it worse for a democracy in the long run to allow judges the power to tell us what is really right.

Strict constructionism is a superior method of interpretation. Unlike Will's assertion, it is not judges giving up their full claim to 33% of the power. It is judges acknowledging the real limit on their power. This is why the president should appoint strict constructionists. I too hope President Bush means it when he says he will not appoint people who will legislate from the bench.