Saturday, April 23, 2005


An Unemotional the Critique of "Activist Judges" Silliness

FindLaw is famous for it's articles that examine current legal issues in a straightforward manner. Marci Hamilton's latest lives up to this standard in her article Senator Frist and Representative DeLay's Claims of Supreme Court Judicial Activism and Anti-Religion Bias: Why They Aren't Persuasive.
House Majority Leader Tom DeLay and Senate Majority Leader Bill Frist made headlines recently by charging that the Supreme Court and courts in general are both "activist" and opposed to religion. Now, DeLay is even implicitly threatening impeachment of judges who do not follow his predilections as he investigates "good behavior." Their leadership underlines the degree to which the Republican Party is now controlled by - and its identity defined by - the far right.

In recent years, the Supreme Court has been pilloried by the far right for being "activist" - while at the same time also being castigated by the far left for being "imperialistic." When these kinds of allegations are trotted out by both ends of the political spectrum, it is very good evidence that what the Court is doing is neither activist nor imperialistic.

... Terri Schiavo lost her life, and her parents lost their case, because of the actions of the Florida legislature and because of Congress - which might have tried to change the outcome by granting the Schindlers, Terri, and others similarly situated new federal rights.

Trying to lay the blame on the doorstep of either state or federal courts -- which only applied the law as written -- is not only inaccurate, but morally wrong. The buck stops with the legislatures on this one, not the courts.

... Essentially, the far right ring of the Republican party that now controls the Bush White House is interested in appointing as many activist judges as it can to overturn Roe v. Wade, Lawrence v. Texas, and those decisions under the Religion Clauses -- the Establishment Clause and the Free Exercise Clause -- that have rightly precluded religious conservatives from dominating the schools, the courthouses, and public grounds. Inclusion is a right, but domination and coercion are Establishment Clause violations, and ones that often inhibit the Free Exercise rights of others.

As should be obvious by now, "activism" is a code word for results not desired by the speaker.
On the other end,
The Court's call to federalism, though long in coming, should have been welcomed by all when it came. It was an overdue reminder that the Constitution gives Congress explicitly enumerated powers, not plenary power.

The left's critique of the Court's decisions has, in essence, claimed that the Court has no business imposing any limits on Congress -- to do so, the left suggested, was not just wrong, but "imperial."

But to say this, is to ignore the Constitution. It is to claim that enumerated power actually means plenary power. And that is simply not the case.

If Congress had endless power, why in the world would the Framers have bothered to list its powers in the Constitution, one by one? History, too, shows that the transition from the loose association of the Articles of Confederation to the tighter federalism of the constitution did not negate the fact that the Constitution was a compact among the states, who were releasing some powers, but certainly not all.
Americans, in general, are an independent-minded lot. But lately, labels affixed to various policies and laws by the two ends of the political spectrum have come to dominate American debate. That's unfortunate.

Consider judicial nominations. Plainly, the right solution is the moderate one -- and the commonsensical one as well. It is patently obvious that excellence and independence of judgment are the only qualities the Administration and the Senate should be seeking in our federal judges, who will serve for decades and face literally thousands of issues. But these qualities are antithetical to the one that is being sought by Frist and DeLay: the willingness to take orders, either from the political branches or a particular religious group.
The article isn't particularly long. It addresses several issues without political obfuscation or rhetoric, something sorely missing in today's standards of journalism. Hamilton recognizes that political issues are often clouded by ignored facts and an obliging media (and likewise obliging political base). She avoids that by looking at the situation from a lawyer's perspective - relying on evidence instead of lies and prejudice. Her piece is refreshing and worth the time to read.

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