In my earlier post I offer this as Lesson Three for watching the upcoming Supreme Court confirmation hearings:

LESSON THREE: Watch for an appeal to "precedent" to attack a nominee who may favor reviving the original meaning of portions of the text--e.g. the "public use" portion of the Takings Clause--that have been ignored for far too long.

On Pejmanesque, Pejman Yousefzadeh, observes:

One of the reasons why I like Justice Thomas is that while he respects precedent, he is willing to cast it off if the original precedential decision did not conform with original intent. And why shouldn't he? There is no point in compounding a mistake, after all.

He then links to his interesting Tech Central column, Needed: Thomist Jurisprudence. Here is a taste of that:

Those who -- like me -- are disheartened by the decisions in Raich and Kelo may potentially take heart in the hope that Justice Thomas's powerful dissents will have sown the seeds for the emergence of a Court majority in the future that will reflect Justice Thomas's thinking. Perhaps that new majority will be crafted via help from Justice O'Connor's successor -- who could do worse than to adopt Justice Thomas's approach to the law and to intellectual issues. As law professor Orin Kerr puts it, "The next time someone insists that conservatives like Justice Thomas will do anything to defend corporate interests against the powerless -- and particularly against powerless racial minorities -- feel free to point them to Justice Thomas's eloquent dissenting opinion in Kelo. So much for that idea."

Let me take this as an opportunity to make two points:

First, Justice Thomas is a conservative politically, not a libertarian. I am completely certain of this because I have personally heard him say so very recently and with gusto. Nevertheless, while there are Thomas opinions with which I disagree (e.g. his dissent in Lawrence v. Texas), his philosophy of judging comes closest to the one I recommend, which shows how method should come before results. Where I disagree with him, it is incumbent upon me to show how he has deviated from original meaning (as I think he sometimes has done). I still find it interesting that Justice Scalia did not join Justice Thomas in his concurring originalist opinions in Lopez and Morrison, or Justice Thomas's originalist dissenting opinion in Kelo. In Kelo, Justice Scalia (along with Justice Thomas) joined Justice O'Connor's excellent, but nonoriginalist, dissent instead. I believe this tells us much about the different judicial philosophies of these two conservative justices.

Second, it is worth considering Justice Thomas's own words about precedent from his Kelo dissent:

The Court relies almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of reclamation laws. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning.

This is the judicial philosophy that I hope will be shared by whoever the President decides to nominate. Otherwise, "judicial conservatives" will forever be taking their orders from nonoriginalist justices of the past, rather than from the text of the Constitution to which they take their oaths, and which most of the people still think should restrict those who govern them.