Frum Comes Out

David Frum reveals himself fully as a legal positivist in his "Diary" this morning. Frum, an ex-Bush crony, accuses Miers defenders of burning the village to save it.

John Roberts at his hearing refused to answer questions about his personal views on abortion. He argued - as other Republican judicial nominees have argued before him - that he should be judged on his legal philosophy, not his private religious and moral convictions.
This is the right and wise response from a juridical point of view. It is also by the way very important from a conservative point of view. The fact is that 40 years of liberal legalism have filled the law with liberal decisions that conservative judges may personally disagree with - but that do carry the power of precedent. . . .

So for both philosophical reasons and for reasons of self-protection, judicial conservatives have argued that nominees should be judged not on their inward conscience, not on their religion or their personal views of abortion, but on their judicial philosophy and their record. This stance has served both the nation and conservatism well. Now in an effort to salvage the Miers nomination, the White House is jettisoning it.

A thousand times wrong! One of my cronies thinks the "scoring against your own goal" accusation is best saved for Frum himself, and I'll let him speak for me --too sputtering mad to argue at the moment.

Frum's view reflects that of the conservative elite in general. There REALLY is a gaping chasm between the two conservative groups: one of them really wants substantive change on the Court, restoring in some fashion or another the natural rights of the Declaration to constitutional jurisprudence. The other (represented by Frum in an extremist way) wants the law restored in its "magnificent neutrality" toward all moral principles. The conservative elite have swallowed their own half-truths over the last few decades and they are now exposed for all to see as legal positivists.

Half-truths in that what was once a position of convenience adopted strategically in a time of liberal ascendency has now become the entirety of the erstwhile Conservative position. Here's a radical view for you: having been to law school and/or having influential lawyer cronies is not the same as having a judicial philosophy. On the whole, it tends to limit your ability to read the Constitution except through the prism of the wonkosphere. UPDATE: What on earth has Judge Bork had for dinner the past few nights that's left him so dyspeptic? Hugh Hewitt "gets" it (and I note he hints at my crony-disclosure recommendation).