Instapundit (Law Professor Glenn Reynolds) has a new column up on FoxNews.com, Conservative Court Could Be Dems' Best Friend , co-written with Brannon Denning.

They posit that "Democrats might want to consider that a "conservative" U.S. Supreme Court with a renewed interest in limiting the power of Congress might be their new best friend." Two examples they cite are the Lopez decision, requiring an interstate commerce connection before allowing a federal sentence enhancement for using or carrying a gun during a drug crime or crime of violence, which requirement has since been extended to other crimes in federal court, and limits placed by the Court on congressional power through its holding that "Congress cannot commandeer state legislatures or state executive officials to pass or implement Congress’s mandates. If Congress wishes the states to do something, they must make it a matter of federal law (which prevails over conflicting state laws.)"

We agree with the Professor on the federalism issue, but we don't agree that democrats should believe that a conservative judiciary is supportive of their ideals. Taking them one at a time, first off, like Prof. Reynolds, we are definitely against the recent move by Congress towards mass federalization of crimes traditionally left to the states to decide how to prosecute. Here's why, from the Legislative Priority page of the National Association of Criminal Defense Lawyers:

NACDL urges Congress to reject its tendency to federalize crime and repeal legislation that is contrary to our system of federalism and sound crime control policy.

Increasingly, crime bills grant federal prosecutors greater and greater authority by creating more federal crimes out of historically state and local crimes. For example, domestic violence, carjacking and failure to pay child support, the subjects of recent federal measures, are traditionally the prerogative of state and local governments; federal jurisdiction is unwarranted, unwise and contrary to the Constitution. Regarding these and other federalized crimes, Chief Justice William H. Rehnquist observed that "one senses from the context in which they were enacted that the question of whether the states were doing an adequate job in this particular area was never seriously asked."

Before enacting federal criminal legislation, Congress should consider whether a federal interest is implicated and whether the state or local remedy is shown to be inadequate to address that interest. The impact on federal law enforcement and court resources should also be assessed.

A blue ribbon task force sponsored by the American Bar Association concluded "that inappropriately federalized crime causes serious problems to the administration of justice in this country. It generally undermines the state-federal fabric and disrupts the important constitutional balance of federal and state systems." American Bar Association Task Force on Federalization of Criminal Law (1998) (task force included former Attorney General Edwin Meese and several other present and former prosecutors and law enforcement officials).

Likewise, in the collaborative article, Justice That Makes Sense (1998), the then-leaders of the nation's three largest criminal justice groups — NACDL President Gerald B. Lefcourt, National District Attorneys Association President William L. Murphy, and ABA Criminal Justice Section Chair Ronald Goldstock — agreed: "Criminal and social problems are increasingly being addressed by the Congress with what many have come to regard as a purely political response — calls to federalize more criminal activity and to lengthen already unwieldy prison terms. . . . There can be little doubt that increased federal prosecutive authority has adversely affected the Department of Justice's ability to fulfill its role of enforcing traditional federal offenses."

But we cannot support a right-wing, conservative judiciary. They are more of a menace than a positive force. Anyone concerned with criminal justice issues cannot realistically view a conservative court in a postive light, even though, in addition to the issues set out by Glenn, we appreciate conservative judges' support of privacy rights, opposition to laws providing increased punishment for hate crimes, and views on matters pertaining to asset forfeiture.

Looking at the big picture, a conservative court will not issue an opinion requiring: the repeal of mandatory minimum sentences for drug offenses; a moratorium on the death penalty; abolition of the death penalty; the elimination of racial disparities in sentencing; fair procedures (as exist in many states) regarding discovery, guilty plea colloquy, jury selection, and judicial disqualification; grand jury reform; adequate funding for indigent defense; restoration of full habeas corpus rights that were taken away by the "The Anti-Terrorism and Effective Death Penalty Act of 1996"; meaningful checks and balances and oversight of law enforcement powers through increased scrutiny of requests for even more powers and resources; fair treatment of juveniles as juveniles, not adults; fair treatment of immigrants and restoration of discretionary relief from deportation.

Conservative judges only support some constitutional rights for some people. By and large they do not support constitutional rights for the citizen accused or convicted of crime. Thus, while Prof. Reynolds is correct that we should appreciate a conservative judiciary for the positive effect it will have on issues involving intrusions into privacy and federalism, we think any such benefit is far outweighed by the detrimental effect it will have on our principles of justice and on what until now has been the best and fairest criminal justice system in the world.

Our advice to the Democrats, therefore, is different from that of Professor Reynolds and Mr. Benning. Instead of capitulate and embrace, and hold the conservative jurists to their promise of more great rulings restricting Congress and the federal courts, we advise the democrats to filibuster, early, loud and often. The only way to prevent these right wing jurists from imposing their narrow and unjust views on the rest of us is to keep them from attaining the bench in the first place. Take note of political action alerts, write your elected officials and tell them to oppose the nomination, and remember, grass roots efforts can be successful. A Senator can only serve his or her constitutents if he knows their position on issues. By writing to them, you become heard, and your opinion counts. We neither need nor want more Scalia's, Kennedy's or Clarence Thomas'. Do you?