Last night, John and I interviewed Mark Smith, author of Disrobed, which he touts as an action plan for using the courts to advance the conservative agenda. Note that carefully. He does not want to "retake the courts." He wants to file targeted lawsuits in judge-shopped districts to find judges willing to impose the conervative agenda on the citizenry.
This is a profoundly bad idea, no matter how emotionally satisfying it may be.
The problem, the dispiriting truth, is that Smith is right in many of his premises. Liberals have misused the courts for 50 years. Liberals have refined judge-shopping and lawsuit-tailoring to a fine art. Conservatives have failed to make progress in reclaiming the courts, despite a generation of electoral success. So many core conservative agenda items - vouchers, repeal of racial quotas - are still annulled by the courts, no matter whether passed by referendum or by legislation, no matter how many times rewritten to satisfy the micromanagers in robes.
Facing this, and mindful that national moods may change over time, Smith sees an appeal to conservative judicial activism as the only way to play the game now. After all, if judges are going to be activists, they may as well be our activists. He sees this as raising the bar. It's actually just giving up.
First, it's lousy politics. Emotionally delicious as it might be to hang the leftist judiciary on the rope they've sold us, it's not the kind of thing most Americans are going to vote for. After all, if the best you can offer is a choice of dictators, that's not much of a menu. Principled conservatives - the majority of those who vote for a president based on the judges he'll apoint - will be confused by this kind of a U-turn. And surprising though it may be to some, while many conservative policies are quite popular, imposing them by fiat, not so much. Much conservative progress on judicial nominations has been won with the help of the vast middle who are persuaded not by this policy or that, but by democracy.
More importantly, though, Smith's proposal is essentially an abandonment of Constitutionalism, and it is the Constitution and the Declaration - not school vouchers - that is America's great gift to the world, and what sets us apart from what came before. Smith argues that "it will take 50 years of conservative judicial activism to undo the damage of 50 years of liberal activism." He might be right. But by then, we'll be 100 years removed from courts that behave Constitutionally, and really, do we think that conservatives, whatever that might mean 50 years from now, will give up that kind of power any more readily than liberals would today?
In fact, this reminds of nothing so much as the late Roman Republic, with greater and greater political forces being brought to bear on fewer and fewer offices with more and more power. The Founders were well aware of this history, and sought to distribute power in three ways: federalism, separation of powers, and enumeration of powers. To spend vast sums on a continuous poliical battle for the control of five seats on the Court is to invite lawlessness and violence in pursuit of that control, and to acquiesce in the lawlessness of Courts that rule at their whim.
There is one way in which Smith's ideas might conceivably work. If enough judges were to start imposing ideological quotas at law schools, affirmative action for conservatives, the liberals at those faculties might rediscover the virtues of Constitutionalism.
