"JUDICIAL ACTIVISM"

From the American Prospect:

McCain's Judicial Hypocrisy

The truth is that an "activist judge" is a judge who makes a decision conservatives don't like. If they truly cared about the principle that judges shouldn't substitute their own opinions for the law, then they would be just as exorcised about "activist" decisions that served conservative goals as they are about those that serve progressive goals. But if anyone can name me a single judicial decision that served the right's ends and that conservatives protested on the grounds that it was too "activist," I'll eat my hat. And even a court's refusal to exercise power and overrule laws or precedents -- as courts at every level did in the Terri Schaivo case -- will be called "activist" if conservatives don't like the outcome.

And

I haven't heard Barack Obama talk much about judges, but if and when this comes up in one of the presidential debates, and McCain blows the same old smoke about activist judges, I'd like to see Obama turn to him and say, "You know what, senator? Let's try telling the truth. You and I both know that this 'activist judges' line is a load of bull. You want to appoint judges who are conservative -- you want them to overturn Roe v. Wade, and to rule against protections for workers, and to support expansions of executive power. I disagree on all those things. But at least have the courage to be honest with us about it. Don't hide behind this phony 'activist judges' line and try to convince us it's all about some abstract principle. You want to talk about judges? Let's talk about it."

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I don't think I've ever agreed with this right-wing nonsense about "judicial activism" or "legislating from the bench," even when I was a conservative. The whole concept of "strict constructionism," or what Justice Scalia likes to call "originalism," struck me when I was a young Republican, and continues to strike me today as a weird non-defined leftist, as being naively short sighted: interpretations of the law must grow and change in order to deal with a society that must always grow and change--there's no way the founding fathers could have possibly foreseen many of today's legal issues, and waiting for Congress to specifically address each and every problem that arises every day, all day long, is a recipe for disaster.

However, once upon a time, I did believe that these conservative Bozos had a legitimate argument. I mean, it kind of makes sense: judges and justices ought to do nothing but interpret the law as it was written; anything more than that is usurping legislative power. I can dig that. Our Constitutional system is designed to protect us from anyone seizing absolute power. The President can veto Congress. Congress writes the laws and can impeach the President. The Supreme Court can nullify Congressional and Presidential action through the process of judicial review, and on and on. President Bush's power-grabbing actions over the last seven years, "signing statements" and much more, have shown us just how delicate a system it all is. So I can appreciate why some legal scholars might want to err on the side of caution, lessening the power of the courts for the greater good. Even though I disagree, it's a reasonable line of thinking.

But after about a decade or so of accepting, but not buying, the "strict constructionist" point of view, it became clear to me that the conservatives advancing the idea don't really believe it. It's the whole "we're pro states rights as long as the states do what we want" point of view that you see with conservative attitudes about medicinal marijuana and other issues. That is, it's hypocrisy. "Strict constructionism," like laissez faire, exists only as a rhetorical justification to advance conservative goals. Lacking any true support from actual people, the philosophy, as reasonable as it may seem, is meaningless.

And, unsurprisingly, it's what John McCain would be using as a litmus test for any judicial nominees he might make as President. Does Obama have the juevos to publicly express the contempt that "strict constructionism" deserves?

Probably not.

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