by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef enters the debate about the next U.S. Supreme Court justice with a new Forbes column.
Leftist writers are arguing that President Obama should nominate someone for the vacant seat and the Senate should confirm that nominee. If the GOP-controlled Senate doesn’t cooperate, that will supposedly turn into a potent issue in the election because the Democratic voting base will be so energized at being deprived the sort of liberal judge Obama is certain to pick.
Perhaps that will turn out to be true.
But there is a hidden assumption that deserves examination, namely that “liberal” judges will decide cases in ways that favor Democratic voters, while “conservative” judges will decide cases contrary to their interests.
That idea is generally false.
In truth, conservative judges (i.e., those who consistently take a jurisprudential approach that restricts governmental power) often rule in favor of “the little guy,” whereas liberal judges often rule contrary to their interests. That is not because liberal judges secretly dislike the often poor and powerless litigants who want the government to leave them alone. Nor is it because conservative judges are, despite all the nasty rhetoric about them, actually the friends of such individuals.
The explanation, rather, relates to the great vault line in American politics.
On one side of that line are those who think that more government is presumptively good and therefore officials should be allowed to do what they think best. These people call themselves “progressives” because they believe that progress comes from governmental social engineering to transform the country. …
… On the other side are those who think that the Founders were right in wanting to keep government power limited. The sort of judges that “conservatives” (who are often liberal in the original sense of the word) favor are skeptical about using government to transform society, both because they doubt that it succeeds and (far more important for judges) because doing so usually has no constitutional warrant. Their allegiance is to the rule of law, but that usually results in decisions favorable to “the little guy.”