Does Conservative Judicial Philosophy Trump?

There's something very interesting going on with the Supreme Court over the next six months, and it's not watching to see if Roberts will explicitly say he supports or rejects Roe nor is it finding out if the democrats will filibuster Roberts or whoever Bush nominates to replace O'Connor.

It seems to me like one of the real tests here is whether nominating justices with a conservative philosophy instead of a conservative ideology will get the pro-life movement what we want. Looking back thirty plus years to when Nixon (hardly a conservative himself) put Blackmun on the court, the liberal activist judicial philosophy was clearly in control and there wasn't a clearly stated conservative counter to it. Reagan and Bush I both provided very hit-and-miss judicial nominees (on the good side: Scalia and Thomas, on the bad side: Souter, O'Connor and Kennedy. Many, especially in the Catholic blogsphere, have suggested this was simply because Bush I and Reagan didn't care a fig about the pro-life movement. I think rather, the tenets of conservative judicial philosophy were still under development, and so what Reagan and Bush I tried (with very mixed results) to do was to simply pick justices who seemed somewhat conservative in preferences and/or temperament.

Over the last twenty years as conservatives have reasserted themselves legal academia through networks like the dreaded Federalist Society, they have developed a coherent conservative philosophy of law and government which holds much more sway now than it did twenty years ago. One of the virtues of this philosophically driven approach is that we can now count on as supporters even some who do not share our conservative moral beliefs.

Now, the general tenets of conservative judicial philosophy won't get us our final goal: an end to legal abortion in the United States. However, it could get us an end to the judicially imposed ban on restrictions of abortion. That would leave us to fight out abortion law at the local, state and federal level via legislation. At the very least, we would get what we deserved, not what was imposed on us.

The question is, though, will it work? Abortion (and other highly charged moral issues like gay marriage) bring up strong emotions. And so the question is: Will choosing judges solely on their judicial philosophy get us what we wan (an overturn of Roe) or when those judges come under pressure will they decide to vote ideology rather than their philosophy?

If the only way to end Roe is to select justices who vocally and personally oppose abortion, then all we're doing is the flip side of what Blackmun and Co. did in their original ruling: impose our moral beliefs by fiat. If, however, the conservative judicial achieves our aims, perhaps there's a chance that we can improve our country's lot without a full scale culture war.