Judicial conservatism is a misnomer

In the discussions about judicial nominations, I have occasionally spoken of “judicial conservatism,” as when I noted that Harriet Miers is “neither a political conservative nor a judicial conservative.” However, the latter is not a correct concept, as the below remark of Robert Bork’s makes clear:

Liberal, moderate, conservative shouldn’t apply to judging. The correct philosophy is to judge according to the intent of the legislature or the intent of the Constitution’s framers. Judges are overwhelmingly from a very narrow segment of society, and if they begin to read their own ideals into the law, then most of society isn’t represented.

Now, this doesn’t mean that a politically conservative president shouldn’t look for judges who are political conservatives. Of course he should, as he has the right to choose judges who will be in sympathy with him on policy matters and politics. Also, whether a person is a political conservative or a political liberal may be a guide to his judicial philosophy. At least some political conservatives believe in interpreting the law and Constitution according to the original intent of the legislators and the framers (or, alternatively, as Justice Scalia would have it, according to the original meaning of the law as it would have been understood at the time of enactment), while all political liberals favor the re-writing of the Constitution in order to advance the liberal agenda. This is because much of the liberal agenda is opposed by a majority of the people and cannot be passed by legitimate, democratic means. For example, support for Roe v. Wade, the classic example of a judge-written law, is a required position for liberals. But the point here is that insofar as the act of adjudication itself is concerned, “conservative versus liberal” does not accurately describe the respective positions in the constitutional debate. The correct terms are Originalism versus the Living Constitution.

Posted by Lawrence Auster at October 28, 2005 05:11 PM | Send