The Failure of Conservative Judges

by Gerald R. Thompson

Next: A Truly Conservative Judge Pt. 1

In an op-ed column, Jay Ambrose noted the threat to our constitutional republic posed by two recent decisions of the U.S. Supreme Court. One decision held “the Civil Rights Act of 1964 said what it did not say,” and a second held that President Obama’s DACA (or “Dreamers”) order “though illegal, should be granted legal standing.” The op-ed was titled, “The U.S. Supreme Court oversteps its authority.” Oh, if only that was the extent of the problem.

I endorse Ambrose’s scathing appraisal of the court, but I think his headline rather misses the point. It reminds me of Roe v. Wade, the case legalizing abortion. Writing in dissent, Justice Byron White characterized the majority’s opinion as an exercise of “raw judicial power.” Sorry, no – that’s too generous. The court’s decision was, in reality, not an exercise of judicial power at all. It was an exercise of legislative power by a branch of the government not having any such power. It’s exercise was not raw, it was illegal and unconstitutional.

Similarly now, the court’s recent decisions are not merely overstepping. The court is fully usurping both legislative power (by re-writing the Civil Rights Act) and executive power (by declaring one President’s order wasn’t good enough to repeal a former Presidential order). The overt usurpation of two branches of government even a few decades ago would be recognized for what it is – tyranny. Few people today realize that Resistance to Tyrants Is Obedience to God almost became the official motto of the United States. If only that spirit were still alive among us today.

So, the obvious question is why? How did this happen? Many people hoped the appointment of “conservative” judges to the Supreme Court would help solve this problem of judicial supremacy. But have you ever stopped to consider what it is that makes this or that judge conservative? How does anyone know a conservative judge when they meet one?

The basic problem is that federal judges are lawyers, and all lawyers go through a pretty uniform law school experience. It doesn’t matter where you go to law school, or who the professors are. Thanks to the American Bar Association and the American Association of Law Schools, who have a lock on 99% of all law schools in America, the regulatory process, and the collective bargaining process, ensure that all law schools pretty much teach the same things the same way.

And if, by chance, you manage to graduate from one of the few (small, underfunded, no-name) law schools not under the thumb of the ABA and AALS – don’t worry, you will never get appointed to the federal bench. You are of no concern. Only people who graduate from the “right” schools will ever be appointed to the federal bench. And by doing this, they will have submitted their minds to an unforgiving and unrelenting ideological grid.

You can enter law school any way you like – ideologically – but when you come out, you will think about law exactly like every other graduate. Of course, you may retain those personal views when you graduate. But you won’t know how to translate them into a legal framework except for the irreligious, far-left ideological way that was constantly hammered in your head. Because the core belief of that ideology is that there is only one way to think about legal things.

Alternative legal theories and alternative textbooks? They will never be recognized or even acknowledged, must less studied. And you will be buried with so much schoolwork that you simply never will have time to come up for air, much less chase down alternate viewpoints. Not that any of the many resources at your disposal would even tell you where to look.

Which means all of the conservative lawyers have the same essential legal viewpoint as all of the liberal lawyers. So your pool of judicial candidates is a choice between those who heartily embrace the leftist agenda, and those who are reluctant. But eventually they all end up marching towards legal progressivism because there simply is nowhere else for them to go. Which, for you newbies, means ever increasing judicial supremacy, and always expanding the scope of governmental power.

So, why are there no truly conservative judges? The initial answer is that legal academia does not encourage, allow, or even hypothesize the existence of diverse legal philosophies or viewpoints. Diversity as to race, gender and economic status – good. Diversity as to legal viewpoints – bad.

Of course, that failure ultimately traces back to the ideologically non-diverse ABA and AALS, who control legal academia. How did the ABA and AALS get put in this position? By the inept and/or corrupt state legislatures who made laws granting the ABA the exclusive right to accredit law schools, and the AALS the exclusive body to speak for law school faculty. (We used to call these monopolistic privileges, back when there were still conservative lawyers.)

A number of us saw this problem for what it was decades ago. We had the bright idea to start a law school which would actively cultivate an alternative legal viewpoint, based on historical sources and the laws of nature and nature’s God. We thought the ABA would be our enemy, but it turns out the enemy was much more subtle. If only the ABA had been our main adversary.

In this case, it was the problem of “where do law faculty already trained in an alternative legal viewpoint come from?” We thought we had that covered – there were several of us who actually had been trained as lawyers in this historical and lonang legal viewpoint. But, we were young, unknown, and graduates of lesser law schools. We could have made a huge difference in the academic world. However, although we were each there at the founding of the school, working in and around the university and in direct contact with the hiring officials, none of us were hired into the law faculty.

You see, the system was always against us and our law school vision. We assumed the university board of trustees and Chancellor, who very much wanted this new law school, supported the lonang alternative legal viewpoint. We were wrong. The university just wanted peer acceptance, to be able to attract large donations, and to be mainstream. They didn’t give a damn about what was being taught. In the end, from an ideological standpoint, the entire project was a colossal failure.

In fact, every similar effort attempted in the last 50 years also failed ideologically.

Religious institutions active in the educational field, legal associations of religious lawyers, and churches (who are charged by scripture with teaching God’s laws) have done diddly squat. Conservative think tanks and conservative publishers have done even less. They have all utterly failed to act as a check on the legal progressivism of the legal profession or law schools.

Keep this in mind the next time the President has an opportunity to appoint a new Supreme Court justice. Ask yourself – where do these lists of “conservative” judges come from, anyway? You already know the supposedly conservative judges have all been trained exactly like the liberal judges. So who makes up these lists? Are those people themselves lawyers who have been trained exactly like every other lawyer? Or are the lists prepared by non-lawyers, who wouldn’t know a historic or lonang legal viewpoint from a hole in the ground? Do you see the real problem?

Let me just save you the trouble. There are no truly conservative judges. And I’m going to prove it.

Next: A Truly Conservative Judge Pt. 1


ENDNOTES

*     Copyright 2020 Gerald R. Thompson. All rights reserved. Used by permission.