Judicial Activists?

I suspect that their backers would praise them more for being energetic workers with solidly Left-leaning staffs, as men who know how to work the system in Washington, as effective mouthpieces for “progressive” causes.

That is what makes the tactic Leahy and Kennedy are employing to defeat George Bush’s nominees for the Supreme Court so surprising. It is hard to imagine Leahy and Kennedy coming up with it on their own. I am talking about the way they are accusing Bush appointees — John Roberts most recently — of being “judicial activists.” If I hadn’t heard the words coming from Kennedy’s and Leahy’s mouths, I would have thought I was listening to some conservative commentator out to make a satirical point.

What’s going on? “Judicial activists” is the term I have heard used by movement conservatives since I was a teenager to describe liberal judges who were “legislating from the bench.” It was the term used by the Right to describe what was wrong about the Warren Court. It is how Antonin Scalia and Clarence Thomas describe judges who overstep their bounds. It is the term Mark Levine uses in his best-selling book Men in Black to spotlight judges who attempt to impose “liberal elitist” views upon society that would never carry the day at the ballot box.

More than that, it is a term that “progressive” Democrats have embraced as a badge of honor. For decades now I have heard commentators — everyone from Prof. Lawrence Tribe of Harvard to talking heads such as Mark Shields and Alan Colmes — explain to us that judges should not be bound by “strict constructionist” readings of the Constitution; that we have a “living Constitution” and that judges should be free to apply the “spirit” that motivated the passage of the law to make it relevant to the issues of our day; that without such leeway the social progress of recent decades on issues concerning women and minorities would not have taken place.

Former Justice William Brennan made the case in explicit terms in his 1972 dissent against the majority decision upholding the constitutionality of capital punishment. Brennan held that it did not matter that the Founding Fathers thought capital punishment constitutional. He explained that an “evolving standard of decency marking the progress of a maturing society” had arisen since the Constitutional Convention and that he was speaking in his decision for “for generations yet unborn.”

Yet we now find Leahy and Kennedy using “judicial activists” as a shock tactic to describe what Bush’s judicial appointees would do if they were in power; telling us that they would not respect the precedent of the 1973 Roe v. Wade decision that legalized abortion. Said Leahy, “The two most activist judges we have right now are Justice Thomas and Justice Scalia, who have struck down and thus written laws of their own in place of congressional laws more than anybody else on the current Supreme Court.” Leahy is accusing the two most ardent critics of judicial activism with being judicial activists. It is enough to make you dizzy.

Well, wherever Leahy and Kennedy came up with the idea, it seems clear that their objective is to muddy the waters. My guess would be that Democratic pollsters found that focus groups react adversely when they hear “judicial activism.” That led them to devise a strategy to remove the term from the Republican arsenal in the confirmation hearings for Bush’s judicial appointees. It is the strategy, you will recall, that the Clinton team called “triangulation” — co-opting the Republican agenda by adopting language that made the Clinton administration appear to be tough on crime and welfare and committed to a strong military.

There is one other possibility: Perhaps we are witnessing nothing more than some in-house ribbing between the players in the confirmation hearings. That is not impossible. We have all seen the partisan players in Washington needling each other at their roasts and social gatherings. They seem willing at times to joke about the things they say to each other on the record. Maybe the Democrats are having some summertime fun, turning the tables on the Republicans by using a stock conservative attack phrase against Bush’s nominees. I doubt that is the case, but we’ll know soon enough. If Leahy and Kennedy drop the charge that John Roberts is a judicial activist from their campaign to defeat him, it will indicate that it was not meant to be taken seriously.

On the other hand, if they persist in this attempt to attack conservative jurists as judicial activists, they must be answered. Making that claim would be rewriting history, changing the meaning of the term in a manner that can have no purpose other than fooling the public. It is what George Orwell described as “newspeak” in 1984.

When conservative critics of the Roe v. Wade decision criticized it as judicial activism their point was clear. They were illustrating that the right to an abortion was not in the Constitution; that there was a reason why abortion was held to be illegal by the courts in this country for over a hundred years; that the judges who voted to make abortion legal were making law, not interpreting the Constitution. The proponents of Roe v. Wade did not react by denying that they were engaged in judicial activism. I repeat: They talked openly and proudly of the responsibility of modern judges to interpret the law loosely to suit the demands of modern society; that is what they meant by a “living Constitution.”

Consider what Leahy and Kennedy are asking us to accept. They are telling us that judicial activism was necessary in 1973 to bring about the change in regard to abortion that they favored, but that once that change was made, once abortion became legal, judicial activism was out of bounds; that precedents on abortion before 1973 should not have been respected, but that Roe v. Wade should be accepted as a precedent that cannot be challenged in a court of law, and that judges who disagree are unacceptable nominees for the high court.

Are Kennedy and Leahy aware of the hypocrisy implicit in all this? Or are they merely parroting lines from staffers and advisers? Either way, they are trying to pull off a scam for political purposes.

Yup. I agree: It is a lot of maneuvering to defend a practice they “personally oppose.”

James Fitzpatrick's novel, The Dead Sea Conspiracy: Teilhard de Chardin and the New American Church, is available from our online store. You can email Mr. Fitzpatrick at fitzpatrijames@sbcglobal.net.

(This article originally appeared in The Wanderer and is reprinted with permission. To subscribe call 651-224-5733.)

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