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“A democracy is two wolves and a small lamb voting on what to have for dinner. Freedom under a constitutional republic is a well armed lamb contesting the vote.”     Benjamin Franklin

August 2, 2007

Fred Thompson — Strict Constructionist?

by Brad Warbiany

Fred Thompson is flogging the dead horse of judicial appointments, pointing out that Democrats will pull out any trick in their arsenal to block conservative appointees. I know he’s been out of the Senate for a while, but the fact that he seems shocked by this makes me wonder if he’s been paying attention at all over the last few years.

But it brings up an interesting question regarding his beliefs on the role of the Supreme Court. Most Republicans would agree that the Court shouldn’t “legislate from the bench”, and such things as when the Court puts mandates out that basically force legislatures to comply, it’s probably not right. But what about striking down legislation from the bench? Here, sadly, he seems to want to give Congress free reign:

From the beginning of his Administration, President Bush was committed to appointing judges who understand the appropriate limits on their role and seek to interpret the law as written by Congress — rather than revising it to achieve their own preferred goals. Too many Democrats, though, prefer judges who, under the guise of interpreting the Constitution, will impose their policy preferences on the citizenry.

These are two very different notions of the appropriate role of judges. On this issue, I stand with the President, along with the kinds of judges he appoints, like Chief Justice John Roberts and Justice Samuel Alito.

(Emphasis added.)

He doesn’t suggest that the role of the court is to determine whether legislation passed by Congress is Constitutional. As my post last week suggests, he pays lip service to things like federalism while calmly explaining exactly how it should be trimmed and curtailed and toned down. I wonder whether he thinks it is the role of the Court to intervene in the legislative process when the Congress oversteps their Constitutional bounds.

Those on the Right want you to believe that judicial activism only occurs on the Left. But modern Republicans don’t want to go back to the days where the Constitution means what it says, they want to get their own conservative judicial activists on the bench. It’s not a respect for small government that they’re after, it’s to get their own team in power.

Think about it. If Thompson were elected, can you seriously see him nominating someone who takes the Constitution seriously— like Janice Rogers Brown— to the high court?

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16 Comments

  1. Most Republicans would agree that the Court shouldn’t “legislate from the bench”, and such things as when the Court puts mandates out that basically force legislatures to comply, it’s probably not right. But what about striking down legislation from the bench?

    What’s the difference?

    It’s not a respect for small government that they’re after, it’s to get their own team in power.

    Indeed.

    Comment by Jeff Molby — August 2, 2007 @ 12:24 pm
  2. I’m not sure I understand your objection to what Thompson said. The Court is supposed to interpret how the law (as written) applies to specific situations – situations where reasonable people disagree. If one of the parties presents the argument that a law (as written) is unconstitutional, then the Court has to make the determination of constitutionality. That’s one of its possible interpretations of the laws that Congress has written.

    I do agree when you say that some Republicans don’t want to go back to the days where the Constitution means what it says, they want to get their own conservative judicial activists on the bench, but I’m still deciding how much Fred Thompson fits into that category.

    Comment by Wulf — August 2, 2007 @ 12:28 pm
  3. Jeff,

    The difference is that one is trying to supplant the role of the legislature, the other is acting as a check on the power of the legislature. The system is designed so there are two potential checks on the legislature, one being a presidential veto, the other being judicial review.

    Wulf,

    Based on the way he wrote the statement, I am inferring that he gives wide latitude to Congress. I think it also fits in with his sense of watered-down federalism I posted about last week. In addition, he highly praises Roberts and Alito in the sentence immediately following the section I quoted, who have proven in short order that they can be big-government social conservatives, willing to proscribe our liberties as long as it’s in the guise of “fighting drugs” or another “compelling government interest”…

    I’ll admit I’m reading into it a little bit, but that’s about all I can do with what I have to work with.

    Comment by Brad Warbiany — August 2, 2007 @ 12:43 pm
  4. I know what you’re saying, Brad, but I don’t think there is actually a difference.

    Please provide an example of a “Court put[ting] mandates out that basically force legislatures to comply” that isn’t simply “striking down legislation.”

    The only difference I can think of is that judicial review is usually considered the former when the legislation in question has been around for awhile and the latter when it is relatively new. I don’t see that as a particularly relevant distinction.

    Comment by Jeff Molby — August 2, 2007 @ 12:53 pm
  5. Anyone who thinks that conservatives don’t like “activist judges” should look no further than former Alabama Supreme Court Justice Roy Moore.

    Comment by Stephen Littau — August 2, 2007 @ 1:44 pm
  6. Brad:

    I think the term “strict constructionist” is one of those terms that have lost its meaning (much like “conservative” and “liberal”). I would have to look more into Thomas’ background before I could make a determination of whether or not he would appoint a Janice Rodgers Brown (who would unfortunately never get confirmed by the Senate). I was pretty disappointed when Bush didn’t take the opportunity to appoint her.

    Comment by Stephen Littau — August 2, 2007 @ 1:48 pm
  7. Brad,

    The power of “judicial review” is not explicitly enumerated in the Constitution. As strict Constructionists, we could argue that the Supreme Court has no right to strike down the laws of the land.

    But personally, I think judicial review is a way for the courts to keep Congress in check, but recently that hasn’t happened often. Props for pretty much condemning McCain-Feingold!

    But Janice Rodger Brown on the bench would write lots of concurrence or dissenting opinions that would strike the current crowd in Washington as radical/revolutionary.

    Comment by TanGeng — August 2, 2007 @ 2:36 pm
  8. TanGeng,

    The Court’s power of judicial review is clearly implied in the wording of Article III and in the fact that the Constitution designates itself as the Supreme Law Of the Land.

    More importantly, though, if judicial review didn’t exist, then then there would be no branch of government with the authority to review Acts of Congress that may be at variance with the Constitution.

    Comment by Doug Mataconis — August 2, 2007 @ 2:55 pm
  9. Brad,

    I see where your concerns are coming from, but I think that Thompson isn’t really saying anything that Republicans haven’t said since the 80′s.

    Strict constructionism does not necessarily lead to libertarian outcomes, but it does ensure that the Court confine itself to its proper role under the Constitution.

    Even though I might agree with the outcome, I wouldn’t like a libertarian judicial activist any more than I like an authoritarian one. Both of them would be substituting their own preferences for the plain language of the Constitution.

    Comment by Doug Mataconis — August 2, 2007 @ 2:57 pm
  10. TanGeng,

    The power of judicial review is a contentious issue. It’s not really an explicitly defined power. I believe it should be an explicit power and would support a Constitutional Amendment in order to define such power. As it is, you’re right that it’s a gray area, and one that should be cleared up if possible.

    Doug,

    Personally I think the Constitution is a fundamentally libertarian document. It was written by classical liberals who had just fought to throw off a government, and were very wary of giving a new government widespread power. So a libertarian judicial activist is simply enacting the plain language of the Constitution.

    Comment by Brad Warbiany — August 2, 2007 @ 4:16 pm
  11. Brad,

    The Constitution probably isn’t the best libertarian document one might have. The Articles of Confederation might be said to be better. I see the Constitution as a compromise rather than completely founded on libertarian ideas. The document gives Congress many powers a libertarian might object to.

    However, a strict interpretation of the Constitution would greatly reduce the powers supposedly implied by the elastic clause, and bring about a more libertarian government.

    Comment by TanGeng — August 2, 2007 @ 4:32 pm
  12. Um… didn’t George W. Bush appoint her to where she is now? If that non-conservative would promote her, why wouldn’t avowed federalist Fred consider her for the Supremes?

    Comment by CosmoReaxer — August 2, 2007 @ 4:32 pm
  13. TanGeng,

    You’re right on that point. It’s not the best libertarian document one might have, but it’s a lot closer than our current government to where we want to be.

    Cosmo,

    At that level, Bush has people to recommend who he should and shouldn’t appoint to the next level, and he probably just reviews and rubber-stamps their recommendations. I think there were several hundred who got promoted throughout his tenure, so I doubt he’s all that involved.

    It’s a lot different for the Supreme Court, and I think Bush’s choices there reflect exactly what he believes.

    Comment by Brad Warbiany — August 2, 2007 @ 5:11 pm
  14. Funny, isn’t it. Fred blogs on the stalled nomination of Judge Southwick and Diane Feinstein blinks. So now we will have an up or down vote in the Senate.

    Was it just a mere conincidence that Fred writes, and Diane votes, or did his spies hear that she was about to move the matter to the Senate floor and he leaped in to be able to claim a feather in his hat.

    Either way you look at it, Fred is demonstrating he’s a guy that is doing a commanding job, which helps to underline he is a perfect candidate for Commander in Chief.

    Comment by Bob Barney — August 2, 2007 @ 10:41 pm
  15. I like a guy to have a nice track record of staying inside Constitutional limits before he talks about how important it is to do so. Cf. Ron Paul

    Fred, though a better candidate than Rudy or Mitt, simply does not compare on this matter.

    http://www.lewrockwell.com/raskin/raskin20.html

    Comment by Matt C — August 7, 2007 @ 1:23 pm
  16. “If Thompson were elected, can you seriously see him nominating someone who takes the Constitution seriously— like Janice Rogers Brown— to the high court?”

    Yes, I do. That’s why I am supporting him. There will be no Harriet Myers type-nominees. I think he’s aware of the fact that when you don’t pick a strict constructionist with a solid conservative temperment, it’s a waste of a nominee that sets back the Federalist movement decades. I think you’re a bit overly cynical about Fred and who he would appoint to the bench.

    Comment by Vince — August 7, 2007 @ 9:54 pm

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