Who is violating the spirit of the Constitution? Are liberal judges reaching beyond its limits and using the bench for social engineering? Or are conservatives the real activists, striking down laws and making rulings to match their political colors?
A heated debate about the likely impact of this year’s presidential race gave intellectual spice to Constitution Day at Washington College of Law as law professors and a conservative activist wrangled over the proper role of judges.
Underpinning the debate was the controversy over two ways of approaching the Constitution: the “strict construction” viewpoint championed by conservatives and the “living Constitution” approach favored by liberals.
The panel discussion, titled “Constitution Day and Election Day: The Stakes for Justice in 2008,” was much appreciated by the law students, who later pronounced it “surprising” and “awesome.”
On Constitution Day, schools across the country that receive federal funding must devote time to studying and discussing the Constitution. The brainchild of Sen. Robert Byrd, D-W.Va. and WCL ’63, the day marks the signing of the Constitution on Sept. 17, 1787.
Taking the conservative side was the executive director of a major Washington-based advocacy organization, Curt Levey of the Committee for Justice. He charged liberals with pursuing social engineering by bypassing the amendment process, where they couldn’t achieve goals, such as gay marriage, that are far to the left of public opinion, and choosing to work instead through the judicial system by promoting activist judges.
Nonsense, said his liberal counterpart, Nan Aron, president of the Alliance for Justice.
Bush appointees have consistently voted to depart from precedent in cases that promoted conservative policies, she said. “What we’re seeing is more than strict construction. It’s judicial activism,” she said.
WCL professor Jamin Raskin said that Bush v Gore, which effectively ruled that Bush was elected president, “was the most brazen judicial activism we’ve ever seen.”
Those are the stakes of the upcoming election, said Raskin, who also serves in Maryland’s Senate as a Democrat representing parts of Silver Spring and Takoma Park.
“Certainly the stakes couldn’t be higher,” Aron agreed. “Judges and justices make decisions that affect every aspect our lives, from the water we drink to the air we breathe,” she said. “The battle lines are clearly drawn.”
That’s just more liberal fearmongering, Levey said. While liberals raise the specter of a right-wing Supreme Court, he said, “The truth is the court is very moderate right now, even to the left of the American people—and by the American people I don’t mean the opinion elite.”
Law school professors, he said with a nod to the panel, are part of that opinion elite.
“For McCain there are encouraging signs for those of us who believe in strict construction,” he said, “but nobody can accuse McCain of being a conservative ideologue, so who knows?”
He praised McCain for saying in a speech this year that “the proper role of the judiciary has become one of the defining issues of this presidential campaign.” McCain went on in the speech to critique judicial activism.
Obama has said that his criteria in judicial selection would be, at least in part, that they have “the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”
To Levey, “that’s just unbridled judicial discretion.”
Raskin said he was glad that Obama would care about judge’s views, because attitudes always inform interpretation. “The Constitution is a piece of parchment. All of us bring our attitudes and values to interpret that piece of paper,” he said. “It’s not the Constitution that lives. It’s society that lives. All of us have to apply the Constitution to the facts of the time.”
Let’s face it, said WCL professor Herman Schwartz, “All judges are activists when they get to the Supreme Court level, because it only takes a very few, most difficult cases. One man’s judgment is another one’s activism. There’s no escaping interpretation.”
School of Public Affairs professor Jennifer Segal Diascro noted that research on past appointees show that Democratic presidents and their judges, at least on the lower courts, don’t rule as liberally as might be thought. Clinton-appointed judges have been “quite moderate in their decision making,” she said. Judges on the whole make conservative rather than liberal decisions, at least on the lower court level.
At the end, they agreed on one thing: the next appointment to the Supreme Court, whether it’s made by a president McCain or Obama, is likely to be a woman. If Obama wins and liberal justices retire, he’ll appoint more liberals, leaving the court essentially as it stands today.
And if McCain wins, he’d be unlikely to nominate hardcore conservatives in the current Democrat-dominated Senate environment, or “there will be a bloodbath in the Senate that will make Bork and Thomas look like a garden party,” Levey said.
A moderate Republican, though, would likely pass because there would be enough Republicans and moderate Democrats to approve the nominee. A McCain Supreme Court, he said, would be unlikely to overturn Roe v. Wade, but could well chip away at it by allowing more restrictions.
Whether that was acceptable or unacceptable, and where the Constitution fit into all of this, remained a matter of hot dispute. At any rate, Aron told the audience of law students, “what you’re seeing is what happens whenever you have a fight on this issue”—two views of the role of the judiciary, and two views of the direction that country should go in the future.