The compassionate conservative chooses a justice

Since President Bush ran for office as a supporter of Compassionate Conservatism, it’s not surprising that in announcing his first Supreme Court pick, he seemed— rhetorically if not in his actual choice—to be advocating something we might call Legislate-from-the-Bench Strict Constructionism. “When a President chooses a Justice,” he said,

he’s placing in human hands the authority and majesty of the law. The decisions of the Supreme Court affect the life of every American.

With all due respect, Mr. President, Supreme Court justices and other appellate federal judges are not supposed to reach decisions based on their possible effects on the life of every American. Thinking about how the laws may affect people’s lives is the responsibility of the elected legislators who make the laws. The work of a judge is to determine the meaning and intent of the laws that the legislators have passed, not to make the laws, a function for which, as Justice Scalia has said, judges have no mandate and no competence.

Yet a bit later in his remarks, in his best let’s-have-it-both-ways manner, Bush said of his nominee, federal judge John Roberts,

He will strictly apply the Constitution and laws, not legislate from the bench.

Much better. Correctly applying the Constitution (as ordained by the people of the United States and amended from time to time by the Congress and the states) and the laws (as passed by the Congress) is indeed a judge’s true job. It cannot be emphasized too strongly: the job of a constitutional appellate judge is not to attend to people’s needs or even to what he sees as the good of society. If he attempts to do so he has usurped the function and authority of a legislator and is operating outside the Constitution, something that federal judges have been doing, with increasing frequency and audacity, for the last 70 years.

One can only hope that Judge Roberts understood—even if President Bush did not—that the president’s second comment was correct, the first comment dangerous hogwash.

Posted by Lawrence Auster at July 19, 2005 11:18 PM | Send