Todd Zywicki excerpts from a Richmond Law Review article by 5th Circuit Judge Edith Jones, considered a potential Supreme Court nominee (especially now that O’Connor has retired).
Jones’ thesis is essentially that the sheer nastiness of the nomination process is a function of the judiciary’s general abandonment of restraint and its willingness to resolve issues best left for the Executive and Legislative branch. If judges behave like political operatives, the argument goes, they will be treated like them–and suddenly the stakes for Supreme Court nominees goes way up (since the Supreme Court remains the ultimate trump card in our constitutional scheme).
An interesting argument, and one I’m not sure I buy, entirely. However, it does give us another insight on Jones’ views on the proper role for the Court–restraint, yes, but also “continuity…moral values…and…limited social aims.” That gives me pause, because I don’t know what “moral values” means in this context–or “continuity” for that matter. Democracy is, after all, in a constant flux, and is characterized by the making and unmaking of moral values and norms. Jones may well be right that it is not the judiciary’s task to change those values itself–but does she understand that it is equally inappropriate to keep dead values on life support? The Kelo opinion would be indicative here–a democratic branch of the government wished to do something considered abhorrent by many conservatives. But like it or not, property rights, as a socially recognized value, have declined in status significantly over the past century–many, many Americans (including, presumably, the politicians of New London) think that in the case at hand they could be limited. One might argue that it is irrelevant what they want–what matters is what rights the constitution grants and what actions it prohibits. Certainly, I find the argument persuasive. But it requires the thwarting of the “will of the people” in favor of the broad social aim of strong property rights–not to mention a perceived continuity with past eras where property was more highly respected than it is now. Bottom line–contra conservatives, judicial restraint and political conservatism are not the same thing. Eventually, they’re going to clash. The question is, what happens then? And Jones isn’t giving us a satisfactory answer.