Tuesday, March 01, 2005

What Conservatives Should Look For in Supreme Court Justices
The often perceived too-liberal-incoming Attorney General Gonzalez is making a big effort to be perceived as conservative enough for a Supreme Court Judgeship.

In his first lengthy address since becoming attorney general in early February, Gonzales said people who distribute obscene materials do not enjoy constitutional guarantees of free speech.

"I am committed to prosecuting these crimes aggressively," he said to a Washington meeting of the California-based Hoover Institution.

As Jayson Javitz predicts, this does not make me (a non-doctrinal libertarian) feel all that happy. However, it comes with the territory of supporting Republicans, and I can't say that I am all that surprised.

What does concern me is that this move may burnish Gonzalez credentials to be placed on the high court. In my eyes being a firebrand on obscenity cases does not make the attorney general a judicial conservative. What does? Well, when Rehnquist steps down, here are three things to check for. Does a Supreme Court nominee:

(a) Believe enshrining racism in the pursuit of diversity is permissible because it meets a compelling government interest?
(b) Believe that all activities (even gardening home vegetables) fall potentially within a comprehensive scheme that regulates interstate commerce?
(c) Believe that Roe v. Wade is truly different from Lochner? Both cases found hidden rights in the clause of "Due Process".

If a Supreme Court judge answers yes to any of these three questions, he or she is not a judicial conservative.

Why this test? Well part (a) permits compelling government interests to be invented largely out of thin air, jeopardizing our constitutional framework. For the most basic constitutional rights can be overridden when a compelling governmental interest is found. With these stakes a judicial conservative would have an incredibly high standard in finding such an interest, which the desire for diversity never met. Part (b) tests the commitment of a judge to the enumerated powers scheme. Our Constitution is supposedly a document which gives Congress only certain enumerated powers to pass laws, yet outside of violating the bill of rights, Congress is largely able to pass any law it desires. This is made possible through a misreading of interstate commerce which permitted home-grown and home-consumed produce that never left home to be regulated as part of interstate commerce. A true judicial conservative would never permit this. Finally, part (c) deals with two cases that found substantive rights within the due process clause. One is celebrated by the legal academy (Roe) one is condemned as the worst example of judicial activism because it largely forbade governmental regulation of the economy before the New Deal (Lochner). A judicial conservative would ask for consistency on this point.

So even if you cheer Gonzalez's recent move, be hesitant before believing he might be conservative enough for the Supreme Court. He has much yet to prove.

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