What To Expect This Summer

[The side of the political debate that has been right or more right about every single important issue to come before US policy makers in over a decade] will cherry-pick all of the worst bits from the nominee's background such that I won't really be able to trust their assessment of whether this guy (or gal) is a loon or merely a person of sound jurisprudence with some poorly turned phrases in his or her opinions. By the same token, [the side of the political debate that has been wrong, sometimes horribly, disastrously wrongt about every single important issue to come before US policy makers in over a decade] would loudly proclaim that a pro-life ham sandwich was the second coming of Blackstone, Marshall, Hand, and Holmes all rolled into one if it was nominated by George Bush.

Sorry to be so partisan, but the 'a pox on both houses' style of argument really irritates me these days, as if there was no basis on which to distinguish between the left and right in US politics these days!

Thank you, Mr. Barnes, for giving us a perfect example of exactly the sort of empty rhetoric I hope to avoid here in the coming months. As far as the left being "right or more right" about every single issue of importance, how about the abomination of the Kelo decision? The most conservative members of the court were all agaisnt it, the most liberal members of the court were all for it. There is an instance where the left is not only wrong, it is ridiculously wrong, and the right is not only right, they are dead right.

Fair enough. I accept the point that Kelo represents (and I certainly agree that Kelo is an abomination) one of the times that the left's representatives on the SCOTUS have fallen down and that the rightists on the body are, well, right.

That said, I would like to know if you are seriously suggesting that Kelo represents a lapse of judgement of the same scale that the Second Iraq War, Bush's deficits, Bush's failure to secure the domestic US from terrorist activity, and Bush's tolerance of theocracy sum to? That is my central point, and I don't think you've actually spoken to it. Doug suggests that the left cannot be trusted any more than the right; I suggest that the right has given us far more, orders of magnitude more reason to distrust its assessment of whomever Bush nominates than the left.

NBarnes wrote:

That said, I would like to know if you are seriously suggesting that Kelo represents a lapse of judgement of the same scale that the Second Iraq War, Bush's deficits, Bush's failure to secure the domestic US from terrorist activity, and Bush's tolerance of theocracy sum to?

The only part of that list that is even remotely related to a Supreme Court nomination is the last one, and while I obviously disagree with, for example, Bush's anti-gay policies, I don't think Bush has done anything that could reasonably be termed theocratic. I think that's just inflated rhetoric. In terms of Supreme Court nominations, I do think it's pretty much split down the middle. The conservatives have little respect for individual rights and the liberals have little respect for economic and property rights. And I'll note that even in some areas where you might be surprised, the conservatives are sometimes more attentive than the liberals. For example, it was Scalia who delivered the strongest statement against the Bush administration's attempt to suspend habeas corpus in specific situations. Things just are not as simple as you are imagining them to be.

One of the things that the commenter Doug might want to consider is that persons on both sides do precisely the same thing. That is what lawyers refer to as "marshalling facts." They marshall facts in favor of their position, and they also do it in opposition of their--opposition. It's a time-honored thing in trial practice. It hasn't been obvious in regards judicial nominations, probably because until recent years presidents would "clear" nominees with the leadership of both parties before they were actually nominated. That ended, if memory serves, during the Reagan administration. That is why the Bork debacle occurred, for example.

raj wrote:

One of the things that the commenter Doug might want to consider is that persons on both sides do precisely the same thing. That is what lawyers refer to as "marshalling facts." They marshall facts in favor of their position, and they also do it in opposition of their--opposition.

Absolutely true, and I'm sure Doug would agree with you. Conservative advocacy groups are no more to be trusted than liberal ones in such situations.

That's probably a good reason not to categorize a diverse group of people as simply "the right" or "the left". Such distinctions very rarely fit normal people. For example I am an avid supporter of welfare, social security, etc. but also firmly in favor of gun rights. People misrepresenting judicial nominees has nothing to do with their ideology telling them to and everything to do with the desire to "win" which unfortunately trumps honesty in most people.

...Bush's deficits...

[Note, this is not in any way intended to be a defense of Bush or the Republican party.]

Right, and the Socialis..., er, I mean Democrats, are known for their sober fiscal policies?

If they don't run deficits it is only because they raise taxes through the roof.

I thought the socialists were intent upon resisting a political system where one's political position depended on one's wealth. So, when the privatization of water supplies might be proposed, the socialist would oppose such a move because it would unfairly give all the advantages to the wealthy, and take away all the advantages of the poor.

The problem with the owners, I thought, was the unfair advantage their wealth gave them in society.

So, tell me again how socialists pushed for the Supreme's majority view? Are a majority of current sitting Justices socialists? I don't think so. I thought the Supremes have been packed with right wingers for decades. And so, I blame the center right and their allies in the conservative, more business /wealth friendly part of the bench.

The basis for a socialist's opposition to the principle established in Kelo, that wealth overrides personal property rights, would be in the idea that great disparities of wealth in a society makes a democracy impossible.

And if I were to critique a proposed candidate, I would desire to assess that candidate in terms of my concerns. I may very well allow that such person had advantages or disadvantages for those whom I care about, or even for those I do not. I don't see that any such assessment would be "cherry picking."

If you want to read an interesting (and spot on) Scalia opinion, find his dissent in the case upholding the special counsel law. He predicts everything that went wrong with Ken Starr.

WingNutDaily's Kelly Hollowell weighs in:

Challenge to Bush: Do the right thing!. According to Hollowell "Emerson v. Arkansas" (I think she means Epperson), and McLean v. Arkansas are due to, wait for it, 'judicial activism'.

Jason, just to remind you (although I'm sure that you don't need to be reminded) "judicial activism" is just another way of saying "I didn't like the decision." It has almost become trite.

Actually, on second thought, strike the "almost."

I don't think Ed was guilty of the implied equivalence problem in this case.

That aside, it is irritating to see. For instance, in today's News and Observer was a good story about upcoming vaccines. Many pharmaceutical companies are developing and releasing important new vaccines in the next decade. But to be 'fair', the article devoted quite a bit of space to the small conservative opposition to the HPV vaccine, opposition based on the claim that reducing the dangers of sex will encourage it. This kind of thoughtless 'fairness' is an excuse not to have to make a simple call--that the contrary opinion is stupid enough to be ignored, and should not be included in the story.

BTW, i just want to ask those dingbats, "Why haven't you removed the seatbelts from your teen's car?"

Ed,

I am with you in the desire for a rational discussion of judicial philosophy.

However, I can't agree with this:

Jason, just to remind you (although I'm sure that you don't need to be reminded) "judicial activism" is just another way of saying "I didn't like the decision." It has almost become trite.

In your judgment. I don't have such a relativistic view of judicial philosophy. I think that the Scalias of the world have a wonderfully coherent philosophy. If you want to pick out specific instances where they don't, fine -- but I believe Scalia is far less of an activist than a Reinhardt or a Pregerson (the latter of which has said at times that he'll do what he thinks is right regardless of what the law demands).

The word "acivist" is not meaningless.

Funny, I agree with Mr. Scalia's approach to constitutional interpretation, and still amnage to come to the opposite conclusion

The word "acivist" is not meaningless

I'd expand at length, but it isn't worth the time or effort. Consider your comment rejected out of hand.

I take it back. The word "acivist" is indeed meaningless.

But the word "activist" is not.

Patterico at July 4, 2005 03:32 PM

The misspelling was noted but irrelevant. (I do a direct copy, so the misspelling in the original remains in the copy. I understood the import of the post, and that was what I was responding to.)

The term "activist judges" is nothing more than an epithet meaning "I don't like." It's an attack by members of the political branches on the judicial branch. If they want to do away with the judicial branch, they should get off their high horses and saw so. It really doesn't matter that much to me, since we have property in Germany to which we can abscond at a moment's notice. But it might matter to your children.

I don't think that "judicial activism" is a meaninlgess term. But it means different things to different people.

I have my own definition and chances are it is different than yours.

There is no objective meaning to the term.

I am roughly in sync with the definition at Answers.com:

The practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent.

I believe this is pretty close to the accepted definition of the term. The main alternate one I have seen is the Michael Kinsley definition, which is basically: the practice of striking down legislation whether it is constitutional or not. I disagree with that definition because I don't see it as "activist" to strike down unconstitutional legislation.

If someone wants to appropriate the term for their own purposes, I can't stop that. But the *concept* expressed in the above definition is what I don't want in my judges.

If you want to contradict me by saying: "Consider your comment rejected out of hand." -- well, you're entitled to do that. And I'm entitled to give that "argument" the weight I think it deserves.

Patterico,

Thank you for that definition, I have never heard it before.

Patterico at July 4, 2005 08:30 PM

I know what people who cry "judicial activism" are referring to. I also know that the people who decry "judicial activism" are doing so largely because they don't like the results of what the judges are doing. That was my point. The rant "judicial activism" has become nothing more than an epithet for "I don't like the result" in a particular case.

Judges have been involved in making law for millenia. Have you heard of "common law"? That's judge-made law. Most of the law--even in the US--is common law. Much of the statutory law is based on common law, but statutory law does not necessarily anticipate every possibility--hence the continuing development of common law.

And--get this--much of common law was based on Roman law. There is a continuity in legal tradition from ancient times that Americans often want to ignore. And some of them want to ignore information from other countries whose legal traditions developed from the same (Roman) legal tradition. Most of the law following the American revolution was derived from the British tradition. And much of it was made by activist judges. That was my point.

It's nice that answers.com had some definition for "judicial activism. It's interesting. But I'll tell you, I don't believe everything that I read over the Internet. And I don't believe everything that is posted on a single web site. The definition that you posted was probably correct, but it did not have all of the potential implications of the complainers regarding "judicial activism.". It was the implications that I was referring to.

That's pretty much what I figured: your beef is with some people's (probably incorrect) definitions of activism.

Doesn't mean it's a meaningless term.

But forget the term. As I said, that definition is an excellent description of what I *don't* want in my judges.

Patterico at July 6, 2005 01:07 AM

Um, I could be rude, but I'll eschew the issue. Please present evidence that the epithet "judicial activist" means anything other than "I don't like." As far a I can tell, the bloviators regarding "judicial activism" use it for nothing more than a term that means "I don't like."

BTW, I've been a lawyer for over 30 years.

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Um, your use of the word um is, um, kind of rude.

I don't care how long you've been a lawyer. I've said many times that the key is the concept and not the term. If you've been a lawyer for 30 years you should have been able to figure that out the first time I said it.

Probably time to leave this thread for the poker spammers.

Patterico at July 12, 2005 01:34 AM

Just to let you know, that's your problem, not mine.

I could use 20 point font, but I find that annoying, myself. I noticed that you haven't responded to the substance of the post. The sarcasm in my post should be evident.

Just to let you know, you could moderate the all-knowing tone a bit. Though I'll admit I succumb to that myself on occasion.

I thought I did respond to the substance.

If you want to argue that there is a tradition that people should look to in part when determining how the Founders' words would have been reasonably interpreted by people at the time, I have no problem with that. In fact, I think judges like Scalia routinely acknowledge this.

Patterico at July 12, 2005 09:55 AM

If you want to argue that there is a tradition that people should look to in part when determining how the Founders' words...

One thing that you might seriously wonder is...who were the founders? The people who wrote the US constitution? The people who ratified the US constitution? The people who voted for the legislators who voted for the ratification?

Who were the "founders"? It is not an idle question.

I find the Federalist Papers interesting, in large part because they provide a historical indication as to what legislative, executive and judiciary power meant. Nothing more. Nothing less.