Using arguments "that range from the unpersuasive to the offensive" (says The Washington Post), Senate Democrats are filibustering the nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit because he is conservative. Those senators should examine two recent writings by Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit.
In "Is There a Distinctive Conservative Jurisprudence?" (University of Colorado Law Review, Fall 2002) he refutes the charge that there is no principled distinction between the "activism" of the Supreme Court under Chief Justice Rehnquist and that of the New Deal and Earl Warren courts. The Rehnquist Court has indeed invalidated many laws. However, Wilkinson says the earlier courts would "constitutionalize freely," meaning "extend constitutional rights to a point that impaired the democratic process." All judicial activism intrudes upon democratic processes, but many of the Rehnquist Court's invalidations have "restructured democratic responsibilities," partially restoring the Founders' understanding of the proper allocation of responsibilities.
In the 1995 overturning of the federal Gun-Free School Zones Act, the Rehnquist Court acted, Wilkinson says, as "a structural referee, not an ideological combatant." Congress justified pre-empting states and regulating guns near schools by citing the usual justification for extending its reach--its power to regulate interstate commerce. But, says Wilkinson, "the proposition that regulable commerce must mean something short of everything is hardly debatable." And the Rehnquist Court's ruling left states empowered to enact gun-free school zones democratically.
In the Rehnquist Court's conservative jurisprudence of balancing, federalism does not always trump competing constitutional values. The states, says Wilkinson, are not the only important "mediative institutions" between the individual and the national government. When state and local governments have imposed intrusive regulations on the Boy Scouts (mandating that they accept gay scoutmasters) and political parties (mandating primaries open to persons not members of the party), the Rehnquist Court has restricted states' powers in the name of the very principle that, in other contexts, caused the court to affirm states' powers--to protect the intermediary institutions of civil society through which our communal, as opposed to our solitary, selves are expressed. Such protection has been, Wilkinson believes, scanted by the "binary" vision of liberal activism, which is committed to "sweeping and virtually limitless national power" and "the recognition of new individual rights," but little in between.
In "Why Conservative Jurisprudence is Compassionate" (to be published in the Virginia Law Review), Wilkinson argues that compassion in jurisprudence is more complicated than merely rendering judicial succor to those with poignant circumstances. Rather, compassion, as judges can properly consider it, begins by understanding this:
Rules--rules that restrict judges' discretion to heed the promptings of poignancy--have considerable virtues. They give people advance notice of what is permitted and required, they produce uniform and consistent treatment of comparable cases and they respect whatever democratic processes have produced the rule.
Wilkinson says liberals and conservatives differ about "the place of compassion in the democratic process." The human condition features myriad misfortunes and devastating conditions. "Victims of social circumstance, however, are altogether distinct from victims of another's violation of a specific legal duty. It is the job of the democratic process to ameliorate the effects of the former. It is the judiciary's charge to rectify the latter."
And "modesty"--for Wilkinson, the cardinal virtue--is required of judges by society's complexity. Are rent controls compassionate, or do they create a shortage of rental units and a disincentive for landlords to spend on maintenance? Does bilingual education, compassionately intended, impede the mastery of English and upward mobility? Such vexing policy questions about applied compassion are quintessentially those to which democratic rather than judicial processes should provide answers.
For judges struggling with what Wilkinson calls "the inscrutability of compassion," a guiding principle should be that individual plaintiffs are not the only focus of compassion. Collective entities often are instruments of society's compassion. Judges must "personalize" social injury, understanding, for example, that inertial law enforcement has its victims. And that although supposedly compassionate malpractice and product-liability awards may increase patient and consumer safety, they also may drive up prices and prevent needed goods from reaching the market.
When next there is a Supreme Court vacancy, Wilkinson's measured jurisprudence might make him the ideal nominee to silence those whose arguments against judicial conservatism range from the unpersuasive to the offensive.