November 4, 2005

Kinsley frames the debate we should be having about Alito.

Michael Kinsley frames the Alito debate superbly. There's only one serious argument, he concludes: "Alito is simply too conservative."
The Republican counterargument will be fourfold: A) He is not very conservative; B) no one knows how conservative he is, and no one is going to find out, because discussing his views in any detail would involve "prejudging" future issues before the court; C) it doesn't matter whether he is conservative—even raising the question "politicizes" what ought to be a nonpartisan search for judicial excellence; and D) sure he's conservative. Very conservative. Who won the election?
It's quite admirable of Kinsley to state those arguments clearly and fairly. He even talks about something I was just saying people need to address: the fact that there are different kinds of conservatives. He identifies three kinds:
First, conservatism can mean a deep respect for precedent and a reluctance to reverse established doctrines....

Second, a conservative can mean someone who reads the Constitution narrowly and is reluctant to overrule the elected branches of government....

The third meaning of conservative as applied to judges is a conservative judicial activist: someone who uses the power of the courts to impose conservative policies, with or without the benefit of a guiding philosophy.
He concludes:
Judicial power is like government spending: People hate it in the abstract but love it in the particular. That makes an honest debate hard to have, and harder to win. Nevertheless, it would be nice to have one.
Well said.

14 comments:

Meade said...

Judicial power is like government spending: People hate it in the abstract but love it in the particular.

I think it would have been better said if he had used the word "concrete" instead of "particular" or "general" instead of "abstract."

Matt said...

As usual, Kinsley is on the mark. Let's have a discussion and a debate about judicial power and judicial philosophy that goes beyond name-calling ("Scalito"), fundamentally meaningless catchphrases ("strict constructionist"), and the like. Sadly, that will never happen (and that's the fault of people on BOTH sides of the debate).

Goesh said...

I still like the notion of term limits - 8 yrs. and you're out - We the People should not tolerate much tottering and dawdling and infirmity at such a high level.

Scott Lemieux said...

But, of couse, liberals understand perfectly well that there are different types of conservatives, which is why Kennedy was approvbed unanimously, Bork was rejected, and Roberts had some negative vites but was never in danger. The problem is that Alito was widely perceived by his supporters as a very staunch conservative until Monday morning, and systematic analyses of his voting record appear to bear this out. It's certainly possible that Alito is in fact a moderate, but so far your arguiment that Alito is a significantly more moderate conservative than Scalia comes down to one case that social conseravtives was as outraged about as liberals. I think liberals are open to the argument that Alito is Kennedy-like moderate, and understand the difference, but where's the evidence?

Ross said...

Hmmm ... as I read the column, Kinsley didn't himself conclude that Alito was simply too conservative. He said that was the Democrats' only "serious argument."

Sam said...

The only problems with Kinsley's characterization is that the third prong of "judicial conservatism" is inadequate, or it leaves out a fourth prong. This fourth prong is the type of justice I might be: an "activist" in the sense that I would be completely willing to roll back precedents (such as the "everything affects commerce" philosophy) dating back to the New Deal. This would not be because I am seeking a "conservative" outcome without a guiding philosophy; rather, I would be acting in the strictest accordance with a theory of Constitutional interpretation that in my view is *correct*. This could very well lead to outcomes that are non-conservative and that support policies I personally disagree with, therefore I consider it a principled approach.

EddieP said...

I'd like the court to get the commerce clause out of my victory garden.

Pastor_Jeff said...

Sam,

Yes, I agree. I think that's something like the second position Kinsley outlines, but with a different emphasis - conservatism that is based on deep respect for the law itself, even laws we don't like; a conservatism that values playing by the rules because we are nation of laws.

Jonathan said...

WRT what Meade wrote, SC confirmations are extremely contentious nowadays for the same reason that so many other political controversies are: the govt is bigger and more intrusive than ever, and consequently many more people have stakes in govt decisions than was formerly the case. That's the big issue and Kinsley comes closer than most commentators do to grasping it.

Simon said...

I join in full Sam's comments. I think this article is a very facile and misleading ("Republicans have been waving this flag for decades, reverencing . . . the framers' 'original intent'"? Really?), a liberal puff piece to reassure Slate's readers that they're the good guys.

vbspurs said...

Kinsey is speaking as if using Monarch Notes from George Lakoff's:

George Lakoff
Moral Politics: How Liberals and Conservatives Think


Only, the Left Side still haven't been able to reframe the arguments.

I don't see Kinsey as faring any better here.

Cheers,
Victoria

ziyahaaq said...

Bush said he was going to pick a conservative and he did and Alito is. Get it? Not much science here, folks. And more power to him.

Balfegor said...

W/ respect to Sam's comments, I think another way to, ah, frame the issue is that with number 2:

"Second, a conservative can mean someone who reads the Constitution narrowly and is reluctant to overrule the elected branches of government...."

Kinsley is stealing a base, intellectually. What's the "and" doing there? Reading the Constitution narrowly doesn't *always* mean being reluctant to overrule the elected branches of government. Not all the provisions to be narrowly-read *limit* Congressional (or executive) power. Many of them expand it.

Sam said...

Balfegor: That's exactly what I meant. In the FDR showdown with the Court, conservatism meant precisely the opposite of being "reluctant to overrule the elected branches of government". It meant enforcing fidelity to Constitutional restrictions upon two elected branches that wanted no such constraints.