Michael Kinsley has a typically clever column in SLATE on the upcoming Alito-provoked debate over judicial philosophy. He easily ridicules the arguments of both Republicans and Democrats, but especially Republicans, and winds us arguing … well, nothing:
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.
Kinsley never quite says what would make a debate “honest,” but along the way he does repeat one common charge that, though not actually dishonest, is much in need of serious qualification — the charge that Republicans/conservatives are hypocritical since they call for judicial restraint even though they would bar legislatures from enacting, say, affirmative action policies.
On some hot issues—such as affirmative action, or property rights, or gun control—it is Republicans calling for judges to interfere and Democrats who want them to keep their hands off.
Kinsley is smart enough to recognize that “[r]estraint isn’t always good, and activism isn’t always bad,” but beyond that the affirmative action hypocrisy accusation usually misses the mark. First, there isn’t much actual legislation, state or federal, that implements racial preferences. On the contrary, the clear text and intent of the leading statute, the Civil Rights Act of 1964, explicitly bars any racial discrimination. If the courts had followed that act rather than ignored or circumvented it, there would have been no racial preference policies.
But there’s still more. The leading rationale behind arguments for judicial restraint is that judicial activism is undemocratic, substituting as it does the judgment of unelected judges for the desires of the people as expressed through their elected representatives. With that in mind, take a look at the debate over the Michigan Civil Rights Initiative (MCRI). Democrats have tried feverishly and frantically, and so far unsuccessfully, to keep that issue off the ballot, to deprive the citizens of Michigan of the opportunity to decide whether or not they want their state agencies to practice racial favoritism. (On the active efforts of the Michigan Democratic Party to block a vote on this matter, see this excellent report by MCRI official Chetly Zarko.)
In California, the ACLU tried, unsuccessfully, to overturn the popularly passed Proposition 209, banning racial preferences. In Michigan, Democrats have tried to prevent people from being able to vote on the issue. Polls consistenly show that a substantial majority of the public opposes racial preferences. Does Kinsley, or anyone else, really believe that the Democrat’s support for racial preferences is more democratic than Republican, or rather conservative, opposition?
Of course, as Kinsley seems to recognize, something can be both popular and unconstitutional. Perhaps a necessary prerequisite to an “honest debate” is clarity as to what the debate is about.
He picks three very odd issues to make his point about “judicial activism” by Republicans.
Affirmative action, or property rights, or gun control.
Each issue is where judicial activism has already occurred by squishy judges, with perhaps the exception of property rights where both parties seem more than will to engage in Kelo-like takings.
Is it judicial activism to want to roll-back judicial activism (within the confines of the rules of stare decisis, decisions like Grutter, unlike Lawrence v. Texas or Roe v. Wade, appear to have left plenty of room in them for later changes)?