I find myself quite puzzled by Brad Smith’s suggestion that conservative law professors are not likely to support John McCain because belief in the constitutionality of McCain Feingold is somehow inconsistent with “general respectfulness” for the Constitution. Maybe I’m missing something, but I thought that judicial restraint was one of the traditional core principles of legal conservatism. The notion, as I recall hearing someone say — can’t remember who — was that judges should be “strict constructionists” who don’t “legislate from the bench.”
Perhaps a foolish consistency is the hobgoblin of little minds, but I would think that this methodology as applied to campaign finance would lead a truly consistent conservative judge to be inclined to uphold McCain Feingold under old fashioned Thayeresque principles of judicial restraint, regardless of the merits of such legislation as a matter of policy. Of course, conservative legal thought comes in many diverse strands, so of course it’s not the only result a conservative judge could reach. But if you believe that legal principles should be applied consistently, without regard to which party’s ox is being gored, I would think this would be a strong and principled conservative approach.