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Tuesday, July 05, 2005

You never know

I'm reading a profile of Sen. John McCain from the May 30, 2005 edition of The New Yorker. Here's a very interesting bit from pages 61-62, discussing the South Carolina primary in 2000:
Somewhat surprisingly, McCain had the support of Gary Bauer, the social conservative, who had dropped out of the race by that time. "I wanted a commitment from either George Bush or John McCain that if elected he would appoint pro-life judges to the Supreme Court," Bauer [said]. "Bush said he had no litmus test, and his judges would be strict constructionists. But McCain, in private, assured me he would appoint pro-life judges."

As I noted in one of yesterday's posts, this sort of thing is another reminder that religious rightwingers care about judicial results, period -- all this talk about interpreting the law, not making it is just meant to confuse people. It doesn't mean a thing.

The other interesting thing above is the Bush position. Notwithstanding his repeated declarations that Scalia and Thomas are his models for SC Justices, Bush evidently refused to do the easy thing with Bauer on this issue. Who knows if the reason was that he wanted to preserve his freedom to appoint Gonzales (though foolish consistency has never plagued Bush's mind, so who knows if he was worrying about making a promise and then going back on it).

At the same time, John McCain -- every Moose's favorite guy -- was apparently very willing to promise results.

My point isn't that no one should ever make positions on constitutional issues a litmus test (after all, the constitution gives SC Justices enormous power, and it makes their appointment process quintessentially political). Nor is it that I think Bush will nominate Laurence Tribe or Cass Sunstein. Rather, it's that things this delicate aren't always exactly what you might think they are.

Update: Here's an interesting article by Jeffrey Rosen at The New Republic on the distinction between results-oriented conservative activism and methodologically conservative judicial orientation. It's subscription-only, and I've read only the first part, but it looks interesting.

2 Comments:

Blogger strategery4 said...

On the McCain thing, at least he is being consistent and honest -- he really is pro-life, notwithstanding the swooning of Democrats.

On the hypocrisy of many conservatives about interpreting the law vs. legislating from the bench, a nice example is John Tierney's op-ed from yesterday's Times. (He's the conservative brought in to replace Safire, right?) Basically he thinks the Supremes should have rejected eminent domain because politicos in his hometown of Pittsburgh have mucked it up so much by asserting that power. But isn't the proper response to vote in new politicos, and not have the Supremes find new rights? Hmmmm.

And what's with this claim about the gov't "seizing your home and giving it to someone else"? The conservative critics are leaving out the key part of the bargain -- "just compensation." Assuming markets work -- as conservatives usually do, at least when it suits them -- aren't folks being given enough money to buy an equally attractive property somewhere else? Perhaps they should be given a bit extra to compensate for the hassle. But to paraphrase Holmes, now we're just haggling over the price.

7/06/2005 11:07 AM  
Blogger Jonah B. Gelbach said...

But isn't the proper response to vote in new politicos, and not have the Supremes find new rights?

That's certainly (supposed to be) Scalia's position!

On your second point, regarding Kelo, I think you've made some good points that others have missed. I am still pretty ambivalent about Kelo, I guess because the question of what compensation is "just" really is the rub---if you wouldn't sell at the market price, that could be because your reservation price is higher. In that case, is it just to pay you market price? On the other side we have the issue that the Coase Theorem breaks down when you have to worry about asymmetric information, so you could wind up with a holdout problem if you do insist that local govts have to pay enough to convince people voluntarily. I think this issue is much more complicated than its detractors have made it out to be. There's a very interesting post by Eugene Volokh on another facet of the issue.

7/06/2005 11:26 AM  

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