Tuesday, January 20, 2004

Unfortunately, even many self-described "conservatives" don't understand the concept of judicial conservatism. They are so steeped in the notion of an activist judiciary that they are now intent on getting judges appointed who will impose by fiat a more "correct" agenda.

This is demonstrated by one of the responses to my post from yesterday on the Charles Pickering appointment. The anonymous respondent posted something from what he described as "Log Cabin Republicans - GOP Sodomite Publication":
WASHINGTON -- "I have spoken with Judge Pickering at length, and have reviewed his record and consulted with several people around the country. Judge Pickering reiterated to me his strong belief that all Americans should be treated equally under the law, including gay and lesbian Americans, and his record as a federal judge clearly demonstrates it," said Rich Tafel, executive director of Log Cabin Republicans.
This was posted anonymously, without comment, as if it were some sort of self-standing, knockdown conservative argument against Pickering's appointment to the bench.

It isn't.

Even if the anonymous poster is correctly relaying the article from the Log Cabin Republicans, based on a conversation one of them allegedly once had with Pickering, nothing in this third-hand report militates against Pickering's credentials as a judicial conservative. The reason is that when judicial conservatism is applied, it doesn't matter what a candidate's personal beliefs are. All that matters is what the law says. Indeed, that's the entire point of judicial conservatism--returning the power to make laws back to the electorate.

A true judicial conservative enforces duly-passed laws he doesn't agree with. He applies each law equally, according to its plain meaning, forgoing the opportunity to force his own philosophy (even if his philosophy is noble and correct) on the people, to whom he is not even accountable.

If the people pass bad laws, then we need to work to change those through the democratic process. But lawmaking is supposed to be a political process. Judicial rulings are not. Judges are not supposed to be a corrective to bad laws--they are simply the appliers of them.

I don't care what a judge's personal opinion on homosexuality, abortion, or any other issue is. What I care about is that he will correctly interpret and apply the laws that the legislature has given him. If Charles Pickering will refrain from distorting laws to further his own agenda, then his personal opinion on homosexuality matters little to me. It seems we've gotten so used to judicial activism that conservatives now want their own activists.

Incidentally, I'm also curious as to what Pickering actually said in the quote above that would be disagreeable to a conservative. Note that Pickering allegedly said that all Americans, including homosexuals, should be treated equally under the law. Does anyone disagree with that? He didn't say they should all be treated equally. He said they should all be treated equally under the law. It's a simple statement on due process.

Since a judicial conservative doesn't make laws, Pickering is simply accused here of saying that a judge should apply the law--as written--regardless of a person's race or sexuality or whatever. He says nothing about what kind of laws can exist.

If any "conservative" has a problem with this, he needs to read his Constitution again. It's the Fourteenth Amendment.

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