George Will’s column today in the Washington Post on Supreme Court nominees raises the question of whether conservatives should favor or oppose “judicial activism.” Will argues that “The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?”
Fortunately, classical liberals have been interested in just this issue for some time and provide substance to Will’s terse argument. Indeed, James Huffman, Professor of Law at Lewis and Clark Law School and candidate for U.S. Senate in Oregon, made a compelling case for principled judicial activism and against the traditional conservative doctrine of judicial restraint back in 1993. See it here.
The bottom line for Huffman:
The federal courts should be restrained in the review of actions which are constitutionally undertaken by the other branches and levels of government. Indeed once the court concludes that government has acted within its constitutional powers, there is no further role for the court. This means there is no room for judicial utilitarianism, … la Judge Richard Posner, or for judicial communitarianism, … la Justices Douglas, Rehnquist, and Scalia. But in deciding whether or not the government is acting within its constitutional powers, as defined by constitutional definitions and allocations of power and by constitutional guarantees of individual rights, the courts should be unabashedly activist.
Damon Root of Reason had a later piece on the subject that is also worth reading. See it here.
My bottom line: Be very skeptical of claims of judicial restraint as they are frequently made by those who would have you fail to protect individual rights against state encroachment (and who will gladly abandon restraint when it would stand in the way of their policy objectives).
PILEUS 
“Be very skeptical of claims of judicial restraint”
Conservatives are superb at coming up with very useful maxims just 8 years too late for it to seem honest.
Trust me, if we had been blogging, we would have been hammering the administration on a regular basis. We aren’t partisans.
Just to speak for myself, I am committed to a certain philosophical position and support those who will best advance or secure it. Those who are a threat to it do not receive my support.
And I think it would be useful to go back and look at Marc Eisner’s post about fiscal policy —- you’ll see that he doesn’t have a lot of kind things to say about Republican spending either.
Ok, fine, happy to take your word for it. 🙂
Allow me to amend my remark to say:
“Conservatives are superb at coming up with very useful maxims just 8 years too late to prevent a foolish system of kabuki from becoming entrenched.”
I agree with the content of your concern, it is very valid (and progressive!). Perhaps we need to reboot the confirmation process with more openness and honesty. However, as a practical matter, wouldn’t it be more reasonable to consider this in a less acrimonious and obstructionist climate? At some point, obstructionism determines what political reforms are possible, and I believe that Obama’s nominees must play the kabuki part…