catallaxy files

catallaxy in technical exile

Conservative Dilemma

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I wouldn’t want to be a conservative at all, but more particularly, I wouldn’t want to be a conservative making judicial appointments. These days, there is an inherent contradiction in conservative judicial appointments.

So what do conservative governments look for in the judiciary? Above all else, they want an impotent judiciary. A judiciary so staunchly conservative, that it refuses to even consider social issues, or other questions of public policy. Conservative governments (indeed, all government, but more so the right side) howl murder when a Court makes a radical social decision (think National party in 1992, or Dyson Heydon’s “job-application speech”).

Yet on the other hand, conservative governments want the Court to endorse their, at times, radical agenda, particularly within the context of security policy. Judge Alito told the Senate Judiciary Committee today that he did not consider executive power to be a “blank check” (a phrase Justice O’Connor used in the Guantanamo litigation). With that, the problem in conservative nominations are apparent. While Judge Alito is conservative with respect to social issues, he is also legally conservative. So at the same time as Bush needs a Court which would “loosely” read the Constitution, and grant him wire-tapping powers, he is nominating a socially and legally conservative judge.

The problem is even more evident at home. If we look at the Howard appointments: Gleeson, Hayne, Callinan, Heydon, Crennan – all conservative (although Crennan is an unknown factor). All fine lawyers, but black-letter through and through. A bench stacked with black-letter, states-rightists is the last thing Howard needs as he tries to get his iffy IR laws through on the corporations power. In the same way, the last thing Bush needs is his arch-conservative appointment trumpeting that the Constitution is “a living thing in the sense that matters” (i.e. its underlying principles do not change or move, regardless of circumstances [see here for info]).

The inherent problem is that if you appoint conservatives, they come with a manic attachment to stare decisis. This attachment will then comes back with a vengeance when a government wants to “stretch the rules”. It wouldn’t be a problem if conservative government still meant unobtrusive government, but with the odd “socially conservative, otherwise radical” governments in the US and here, it will be interesting to see how the now right-leaning highest courts will respond.

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Written by Admin

January 11, 2006 at 10:16 am

Posted in Uncategorized

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