Jim Anderson has a textbook example of why the phrase "judicial activism" should be forever struck from all political discourse. It is a meaningless phrase that, despite the pretensions of those who use it 27 times per paragraph, really just means "a judge did something I don't like." Alberto Gonzales is Bush's new nominee for Attorney General. He's strongly, almost maniacally, pro-death penalty (to the point where they almost needed to put a drive-thru into the Texas prison system to accomodate all the executions); he thinks torturing prisoners is okay; but once, when he was on the Texas Supreme Court, he decided that he could not overrule the Texas parental notification law for abortion without a case in front of him and had to actually follow the law rather than imposing his own pro-life views in its place. In the view of the religious right, this makes him a liberal and perhaps even a traitor. What does this have to do with judicial activism? Well, that's what conservatives are supposed to be against, isn't it?
President Bush, in the second debate, said that he didn't want judges who would put their personal opinions into their decisions but would follow the text of the law as it's written. But now that Gonzales has been nominated for Attorney General, the pro-lifers are throwing a fit specifically because he did not put his personal opinion into his decision in the parental notification case:
"As a Texas Supreme Court justice, Gonzales' rulings implied he does not view abortion as a heinous crime. Choosing not to rule against abortion, in any situation, is the epitome of denying justice for an entire segment of the American population -- preborn babies in the womb."When asked if his own personal feelings about abortion would play a role in his decisions, Gonzales told the Los Angeles Times in 2001 that his 'own personal feelings about abortion don't matter... The question is, what is the law, what is the precedent, what is binding in rendering your decision. Sometimes, interpreting a statute, you may have to uphold a statute that you may find personally offensive. But as a judge, that's your job.' Gonzales' position is clear: the personhood of the preborn human being is secondary to technical points of law, and that is a deadly perspective for anyone to take.
But gosh, wouldn't that be judicial activism? Oh, of course not. It's only judicial activism if the judge hands down a ruling you don't agree with. If they inject their personal opinion into a ruling and you agree with that opinion, that's a good thing. I'll take stone cold hypocrisy for $1000, Alex.
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Well, there are actually quite a few of us conservatives who like a style of judging that goes something like "This is the law, it does not conflict with the [state/U.S.] constitution; ergo, the law stands." Leftists and liberals saying that a judge should use his power to do good, right wrongs, etc. on the basis of what Ought To Be Done rather than the constitution should think long and hard as to whether they want that sort of role for the judiciary given that by 2008 the GOP will have been appointing judges for 20 of the last twenty-eight years.
"A corporation is a legal person, the constitution says all people are equal under the law, therefore a corporation has all of the constitutional rights of a citizen" is specious reasoning, but then so is "No soldier shall be quartered in a civilian's home, this implies a right to privacy, and therefore a woman cannot be prevented from having an abortion."Bad judgment is bad judgment, and in an ideal world, people would oppose it on general principle.Of course, in an ideal world, people who were happy to see the Clinton justice department get expanded law enforcement powers would be happy to see the same thing for GW's, and people who opposed expanding Reno's powers would do the same for Reno and Ashcroft. Sadly, though, most politically engaged Americans tend not really to stick to their alleged principles when it means that their side makes some gain.
Well, there are actually quite a few of us conservatives who like a style of judging that goes something like "This is the law, it does not conflict with the [state/U.S.] constitution; ergo, the law stands." Leftists and liberals saying that a judge should use his power to do good, right wrongs, etc. on the basis of what Ought To Be Done rather than the constitution should think long and hard as to whether they want that sort of role for the judiciary given that by 2008 the GOP will have been appointing judges for 20 of the last twenty-eight years.
Okay, but who really says that? Yes, there are some who believe in a "living constitution", but even then they don't want judges ruling in ways that are inconsistent with the principles of the constitution. Even the most liberal judicial theory is not nearly as loose and untethered as you imply here. And my own judicial theory, which Timothy Sandefur calls "liberal originalism", is very closely tied to original intent and textualism, though not to what I think are bastardizations of those ideas in terms of what usually travels under those names.
"A corporation is a legal person, the constitution says all people are equal under the law, therefore a corporation has all of the constitutional rights of a citizen" is specious reasoning, but then so is "No soldier shall be quartered in a civilian's home, this implies a right to privacy, and therefore a woman cannot be prevented from having an abortion."
I would agree in both cases, but at least in the second one, that's quite an oversimplification of the reasoning in Roe v. Wade. The penumbral reasoning in the first step was much more complex (and quite correct as far as it goes) than you indicate, as was the second step, though I think the second step is much less compelling than the first. Roe v. Wade is an example, I think, of a ruling that was right for the wrong reasons, and that's an opinion shared by a wide range of people on both sides. I much prefer resting unenumerated rights on a general right to liberty, with the burden of proof on the government to show a compelling interest consistent with constitutional principles for why they should be given the authority to regulate the practice in question. But that certainly isn't because I want judges to just do what they want if they think it'll have a good result; it's because I think that's the proper reading of the founding documents.
Of course, in an ideal world, people who were happy to see the Clinton justice department get expanded law enforcement powers would be happy to see the same thing for GW's, and people who opposed expanding Reno's powers would do the same for Reno and Ashcroft. Sadly, though, most politically engaged Americans tend not really to stick to their alleged principles when it means that their side makes some gain.
That's certainly true. I was one who was loudly critical of Clinton's abysmal civil liberties record throughout his term, especially when he was demanding from Congress a dramatic expansion of surveillance authority, including roving wiretaps. I recall reading the reaction of conservatives like Trent Lott at the time, furiously opposed to giving government that authority and sounding very much like a civil libertarian and actually hoping that they meant it; they didn't. When Bush wanted the same powers, they rolled over and declared that anyone who opposed them was supporting the terrorists. So did the Democrats, of course, but a few of them later woke up and changed position, but I'm sure that was mostly for political reasons rather than principle. A few did remain consistent, including most surprisingly Bob Barr - I would never have predicted that.