The Dearth of Judicial Purity

One of the consequences of a toxic political environment is that there is little integrity in political rhetoric. Not to say there isn’t integrity in individuals (a different discussion), just not in the discussion and application of political philosophy.



One of the joys of a post-election honeymoon is that for a season people drop their guard and tell the truth. But after what is likely to be the shortest post-election honeymoon in history, there is already an eruption of disingenuous debate about the nomination of a new chief justice and, over four years, additional justices. (Of course, Rehnquist may rally and the others granted additional stamina, making all of this theoretical).



There are few purists when it comes to jurists, and none of them would be candidates for legislative confirmation. Over time, the acceptable range of judicial philosophy has included both strict and broad constructionists and varied degrees of recognition of social dynamism or change.



There is no successful strict constructionist who would say that slavery should have been continued because it was implied in the original Constitution; few would call for the vote to be taken from women because the Constitution didn’t grant it. On the other hand, civil libertarians become Constitutional purists when there is an attempt to restrict pornography or to avoid same-sex marriage.



(This just in: President Bush has launched an internal review of the pros and cons of nominating Supreme Court Justice Clarence Thomas as the chief justice if ailing William Rehnquist retires, the Drudge Reported claimed. A top White House source familiar with Bush’s thinking explains the review of Thomas as chief justice is one of several options currently under serious consideration. But Thomas is Bush’s personal favorite to take the position. What an interesting trial balloon.)



Pure judicial philosophy is rare in modern society. If (in theory) abortion had been prescribed by the Constitution, those of us who are pro-life would be looking for the same judicial and legislative activism that outlawed slavery. But the right to an abortion was created out of whole cloth by an activist court; so the pro-life movement needs a pride of conservative tigers on the bench.



The courts have been drifting dramatically left in recent years and legislating from the bench has been commonplace. The need for a return to restraint is seen in many areas where activists have established laws and rights with only incidental reference to the Constitution. (Judge Bork on Hannity Monday night pointed out that in modern history there isn’t an example of a Supreme Court justice drifting right, but many examples of leftward drift).



A court with more strict constructionists may or may not result in the reversing of Roe v. Wade. Nonetheless, preserving the authority of the Constitution and the intent of the founders is important. Strong constitutions are essential in the origin and health of nations.



There shouldn’t be a topical litmus test of any kind. Judges should be chosen for legal competence, integrity, and reasoned judicial philosophy. Not for what their philosophy may lead to in the way of social change. But, of course, that would have real integrity.

--James Jewell