Newspaper article The Topeka Capital-Journal

George Will: Candidates Should Choose Judicial Muse

Newspaper article The Topeka Capital-Journal

George Will: Candidates Should Choose Judicial Muse

Article excerpt

An important issue is being neglected because Democrats have nothing interesting to say about it and Republicans differ among themselves about it.

Four Supreme Court justices are into the fourth quarters of their potential centuries -- Stephen Breyer, 77, Antonin Scalia, 79, Anthony Kennedy, 79, and Ruth Bader Ginsburg, 82. Presidential candidates should explain the criteria by which they would select judicial nominees.

Regarding jurisprudence, Democrats are result-oriented, interested in guaranteeing three outcomes: Expanding government's power to prevent protection of unborn babies, expanding government's power to regulate speech about the government ("campaign finance reform") and expanding government's power to discriminate for the benefit of certain government-preferred groups ("race-based remedies").

Republicans cannot speak their minds about the judicial supervision of democracy because their minds are unsettled. Fortunately, they are being urged by such thinkers as Randy Barnett to adopt a vocabulary disconcerting to conservatives who have grown comfortable with "judicial restraint."

Barnett, a professor at Georgetown's law school, recently took to the University of California at Berkeley this message: "The judicial passivism of the Supreme Court has combined with the activism of both congresses and presidents to produce a behemoth federal government, which seemingly renders the actual Constitution a mere relic, rather than the governing document it purports to be."

In his lecture "Is the Constitution Libertarian?," Barnett acknowledged in many respects American life "feels freer" than ever and we have more choices about living as we wish. In other ways, however, the sphere of freedom is too constricted and individual rights are too brittle, because for decades Lockeans have been losing ground to Hobbesians: "The Lockeans are those for whom individual liberty is their first principle of social ordering, while the Hobbesians are those who give the highest priority to government power to provide social order and to pursue social ends."

Hobbesians say America is dedicated to a process -- majoritarian decision-making that legitimates the government power it endorses. …

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