Confessions of A National Review Editor: Conservatives Have Abandoned Both “Originalism” and “Judicial Restraint”

In a powerful and courageous op-ed in this morning’s NY Times, Ramesh Ponnuru – senior editor of the staunchly-conservative National Review – concedes the central point we at CAC have been making since our inception: many central planks of the conservative legal agenda cannot be squared with the text and history of the Constitution.

Ponnuru’s piece also identifies the emptiness of the conservative claim that Supreme Court nominee Sonia Sotomayor is a “judicial activist” based on her rulings in race cases such as Hayden v. Pataki (a Voting Rights Act case involving New York’s felon disenfranchisement law) and Ricci v. DeStefano (a case brought by New Haven firefighters invoking the Equal Protection Clause). As Ponnuru explains, when it comes to race cases and the Constitution, “too many conservatives abandon both originalism and judicial restraint.”

A perfect example of this came just yesterday. As CAC’s Judith Schaeffer chronicled in a post here, Sen. Jeff Sessions (R-AL), ranking Republican of the Senate Judiciary Committee, took to the Senate floor yesterday and had the audacity to criticize Judge Sotomayor for following the plain text of the Voting Rights Act in the Hayden case. (The horrors!) Senator Sessions recognized that Judge Sotomayor would defend her action as a “strict construction” of the VRA – indeed, in her opinion itself Judge Sotomayor states plainly that “it is the duty of a judge to follow the law, not to question its plain terms” – but that wasn’t enough for Senator Sessions, who wanted a “fair” construction (i.e., one that he likes) that would exclude felon disenfranchisement laws from the reach of the VRA.

Ponnuru makes a similar critique of a dissenting opinion issued by Justice Clarence Thomas earlier this week in NAMUDNO v. Holder, advocating that the Court should strike down a separate provision of the Voting Rights Act. Channeling assertions made by CAC in our brief in that case, and in our associated report on congressional enforcement powers, Ponnuru writes:

It is hard to believe that, back in 1870, [the ratifiers of the 15th Amendment] wished to empower courts to determine which voting rights laws were necessary…. To invalidate laws without a strong argument that the Constitution requires doing so is precisely what conservatives usually mean by “judicial activism.”

Similarly, as Ponnuru notes (and CAC’s Elizabeth Wydra recently explained in exhaustive detail), widespread conservative condemnation of Judge Sotomayor’s decision in Ricci v. DeStefano on the grounds it constituted judicial activism is deeply misguided. In that case, Sotomayor joined a unanimous Second Circuit panel in rejecting Frank Ricci’s claim for a simple reason: New Haven had a pretty compelling argument that it had to scrap the promotion exam passed by Mr. Ricci because the exam had a severely disproportionate impact on minority test-takers and therefore may have run afoul of federal employment discrimination law. Ponnuru writes:

Mr. Ricci probably deserved his promotion and had a right to his day in court. But contrary to what many conservatives insist, that does not mean he should win the case. The legal arguments for his position… are not absurd: they include reasonable readings of Supreme Court precedent. They just aren’t originalist arguments.

To conclude that New Haven acted unconstitutionally is to assume that the Constitution’s 14th Amendment mandated a policy of strict colorblindness by state and local governments. Maybe it should have. But the historical evidence that it did is weak. Certainly the conservatives on the Supreme Court have not tried to argue that it did: originalist analysis has been notably absent from their opinions in affirmative-action cases.

These are bold words from a conservative leader, deserving of our applause.