To demonstrate how this would play out in practice, strict constructionists, irrespective of their personal views on abortion, would conclude there is no federal constitutional right to an abortion and that the legality of abortion should be left to the states. Thus, strict constructionist Supreme Court justices, being effectively neutral on the policy of abortion, would not -- on the basis of a mythical constitutional privacy right -- vote to invalidate state laws that either legalized or outlawed abortion.
But it is axiomatic that those who don't play by the rules are always suspicious that the other side won't either. Since liberals have routinely exploited the judiciary to implement their policy agenda they fear conservative-oriented judges might do the same. Actually, they're horrified at the prospect that conservative judges might simply reverse precedent established through liberal activism, such as Roe.
Mario Cuomo gave voice to this liberal fear during the debate. Kmiec asserted that Pope John Paul II's admonition to public officials to work legislatively to limit abortion did not apply to judges, because they are not legislators. Cuomo vehemently disputed this, saying, "The law today, as we all know, is Roe against Wade. That was made by judges and it can be overturned by judges. To say that the [pope's] rules that apply to legislators shouldn't apply to judges is, it seems to me, wrong."
Quite a damning admission by Cuomo. That he so adamantly rejected the legislative-judicial distinction reveals that he fully embraces the idea that courts are a third policymaking branch.
Ironically, it is only nominees of the type Cuomo would prefer -- liberal activists -- whose faith or lack thereof, might influence their decisions on the bench, because they would not consider themselves strictly relegated to a law-interpreting function.
So perhaps we should suggest to Gov. Cuomo and his ilk that instead of inquiring about the nominee's faith, senators should seek to determine whether he is an activist or strict constructionist. If he's a strict constructionist, his religious and political views should be deemed off limits as irrelevant.
But if he is found to be an activist -- liberal or conservative -- he should be summarily disqualified because his activism will inevitably conflict with his required oath to uphold the Constitution.
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