Likelihood of Success

Ron Coleman’s pretty good blog

Conservatives and McCain-Feingold

Posted by Ron Coleman on January 24, 2008

Orin Kerr about conservatives, judges and the horror of McCain-Feingold:pantheon-interior.jpg

Perhaps a foolish consistency is the hobgoblin of little minds, but I would think that this methodology as applied to campaign finance would lead a truly consistent conservative judge to be inclined to uphold McCain Feingold under old fashioned Thayeresque principles of judicial restraint, regardless of the merits of such legislation as a matter of policy.

He’s taking some heat over this, but it really does come down to the old question of what is a “conservative judge”: A judge whose decisions would be appreciated by conservatives because they hearken back to first principles? Or a judge who judges in a conservative fashion?

Choose which “c”‘s to capitalize yourself.

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One Response to “Conservatives and McCain-Feingold”

  1. Fern said

    I fully admit that my legal pedigree is quite a few (read: hundreds) of notches below Professor Kerr’s, but since when did believing in “strict constructionism” mean that a judge couldn’t strike down a law as unconstitutional? It seems he’s buying in to the latest fad of trying to spin the term “judicial activism” into something that it doesn’t really mean, at least not in it’s original incarnation. Judicial activism refers to those times when the judiciary usurps a role or task assigned to one of the other two branches (i.e. legislating from the bench). Since it is the traditional role for the court to decide whether or not the legislature, executive branch or private actor has broken the law/constitution, I don’t see how doing so could possibly be considered “activist” by a thinking person. A conservative judge has always meant a judge who decides cases according to an original understanding of the constitution and common law, it has nothing to do with restraint or lack there of.

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