"“Presidential candidates should explain the criteria by which they would select judicial nominees.” A discussion from Mohler

“Presidential candidates should explain the criteria by which they would select judicial nominees.”

While that is certainly true in the more general level of all federal judicial nominees, when it comes to the Supreme Court these issues take on an unbelievable importance in terms of our current political pattern. That’s because both other branches of government have been increasingly deferential to the Supreme Court and a part of that is their own cowardice, especially when it comes to Congress. Congress has deferred acting on many big issues of public policy, including issues of tremendous moral importance letting the Supreme Court basically decide these issues and then on the other side of a Supreme Court decision, both of the other branches of government have been generally quite subservient to the Supreme Court and we’re looking at nine unelected human beings sitting on this court and thus five people, that is a majority of the nine, can decide and they often do decide some of the issues of greatest importance, issues in which the Congress and the president should indeed have a very important role as well as a very direct political accountability. The problem with the United States Supreme Court in that sense is that it is virtually impossible to hold the court to account. The only influence by and large anyone has, whether liberal or conservative on the court directly, is by the nomination process in terms of the appointment to the Supreme Court, and that can come only from the President of the United States. Though the United States Senate must give advice and consent and that is confirmation to federal court appointments made by the president, the reality is that the power of appointment and nomination comes exclusively from the President of the United States. So in one sense, every time we elect a president we are electing the future of the U.S. Supreme Court and that in this case is particularly apt with the 2016 presidential election with four of the nine sitting justices of the Supreme Court, either right at age 80 or almost there, or in the case of Ruth Bader Ginsburg actually aged 82 already.

Leslie and her possible favourite book

At this point, as is so often the case, George Will gives a deeper analysis that also deserves our attention. He says that the justices of the court on the left and the right, the liberals and the conservatives are basically divided over how they understand that government is supposed to work, how they understand that courts are supposed to work and how they understand a document like the Constitution is to be interpreted and applied. He refers to these two different trajectories as the Hobbesians versus the Lockeans, he’s talking about the philosopher Thomas Hobbes on the one hand and John Locke on the other. He says that the Hobbesians are basically the group that favors big government and the expansion of government and they look at the courts primarily in terms of the process by which the courts operate. They want the courts to follow a process that comes out with the result that they intend and that they hope for and they strive for. The Lockeans on the other hand, are those who believe in a more limited government and they believe that the courts should be limited to operating on the basis of principles. Now this also gets to the fact that when it comes to reading the Constitution, the Hobbesian so to speak, suggests that the Constitution is a living document to be interpreted anew in a generation present without any particular accountability to what came before or for that matter, any particular accountability to the actual words of the Constitution. The Lockeans on the other hand, are traditionally the more strict constructivist, they are those committed to judicial restraint to the actual strict constructionist understanding of the Constitution that means the words are to be interpreted on the basis of their vocabulary and their grammar and the intention of those who wrote the words and ratify the Constitution in the first place.

Ron and his possible favourite book

When you look at those two trajectories you understand that the liberal wing of the court basically sees the court as a vehicle, as a mechanism of political change to get the country where they believe it should go. Meanwhile, the Lockeans, the more conservative on the court, they believe that the court’s role is rather humble, it is indeed to prevent government from overstepping its bounds and to make certain the government operates within the confines of the Constitution. So the 2016 presidential race in the United States will pit two political worldviews over against one another, but the worldview issues go far deeper than politics and furthermore, the American people will be electing an understanding of the courts and of the Constitution in terms of how they vote for president.

-Albert Mohler 

The false promise of ‘judicial restraint’ in America- George Will (or a study on the difference between Hobbeseans and Lockeans or Ron and Leslie)

From George F. Will and the rest at the Washington Post

...Barnett, a professor at Georgetown University’s law school, recently took to a place that needs it — 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 that in many respects, American life “feels freer” than ever, and that we have more choices in living as we wish. In many other ways, however, the sphere of freedom is too constricted, and individual rights are too brittle, because for decades America’s 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.”

Not all Hobbesians are progressives, but all progressives are Hobbesians in that they say America is dedicated to a process — majoritarian decision-making that legitimates the government power it endorses. Not all Lockeans are libertarians, but all libertarians are Lockeans in that they say America is dedicated to a condition — liberty. It is, as Lincoln said, dedicated to the proposition that all people are equal in possession of natural rights."

Lockeans favor rigorous judicial protection of certain individual rights — especially private property and freedom of contract — that define and protect the zone of sovereignty within which people are free to act as they please. Hobbesians say the American principle is the right of the majority to have its way. Last year, 54 Democratic senators (including two so-called independents), Hobbesians all, voted to amend the First Amendment(“Congress shall make no law . . . abridging the freedom of speech”) to empower majoritarian government to regulate the quantity, content and timing of political speech.

Lockeans say the Constitution, properly construed and enforced by the judiciary, circumscribes the majoritarian principle by protecting all rights that are crucial to individual sovereignty. Lockeans say the Constitution codifies the Declaration of Independence, which, in its most neglected word, says governments are instituted to “secure” natural rights... 

...And, Barnett argues, a nonpassive, properly engaged judiciary bears the burden of saying when the government has not justified its restrictions as necessary and proper.

So, Barnett says, yes, the Constitution — “the law that governs those who govern us” — is libertarian. And a Lockean president would nominate justices who would capaciously define and vigorously defend, against abuses by majoritarian government, what the 14th Amendment calls Americans’ “privileges or immunities.” 

Today, Democrats’ intraparty arguments are dull as ditchwater because they concern nothing fundamental, only how rapidly and broadly to expand Hobbesian government’s redistributive and regulatory reach. Republican presidential aspirants must be forced to join their party’s intramural arguments about the judiciary’s proper function. Then we can distinguish the Lockean constitutionalists from the merely rhetorical conservatives whose reflexive praise of “judicial restraint” serves the progressives’ Hobbesian project of building an ever-larger Leviathan.