Will the Real Activist Judges Please Stand Up?

[Originally extended July 6, 2005 at the old Brainmortgage offices.]

The New York Times (only the world's sixth-rated newspaper, thank you. Mazel tov to the FT.) has an op-ed from Paul Gewirtz on so-called judicial activism.

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 % Kennedy 64.06 % Scalia 56.25 % Rehnquist 46.88 % O'Connor 46.77 % Souter 42.19 % Stevens 39.34 % Ginsburg 39.06 % Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

This seems like a pretty good definition. Gewirtz goes on to point out that, by this measure, activism per se is not a bad thing. That depends on the constitutionality of the laws they are striking down.

What if we took "activism" to mean the expansion (or contraction?) of rights? That is, to rule in such a way as to either expand or contract the rights of citizens is to be an "activist" judge. Who would be the activists, then, and in what direction?



Thanks to Dave for this one.

To Hell with Checks and Balances

The Constitution is over-rated, anyway.

In remarks prepared for delivery Wednesday, [Attorney General Alberto] Gonzales says judges generally should defer to the will of the president and Congress when deciding national security cases. He also raps jurists who “apply an activist philosophy that stretches the law to suit policy preferences.”

The text of the speech, scheduled for delivery at the American Enterprise Institute, was obtained Tuesday by The Associated Press. It outlines, in part, what qualities the Bush administration looks for when selecting candidates for the federal bench.

“We want to determine whether he understands the inherent limits that make an unelected judiciary inferior to Congress or the president in making policy judgments,” Gonzales says in the prepared speech. “That, for example, a judge will never be in the best position to know what is in the national security interests of our country.”

Let me see if I've got this straight. The Attorney General wants to make sure that the President is looking for the right qualities in federal judges, by which he means, deference to the executive in matters of national security. The trick here, it seems to me, is that it is not the job of federal judges "to know what is in the national security interests of our country;" it is the job of federal judges to know what is and isn't consistent with the Constitution of the US. This is like saying that we won't hire political science faculty at a college who don't "know enough about biology" to know that the bio department should be running the school.

Gonzales, a former Texas Supreme Court justice, has in the past warned about judges who inject their personal beliefs in cases. But his prepared remarks Wednesday mark his sharpest words over concerns about the federal judiciary — the third, and equal, branch of government.

Judges who “apply an activist philosophy that stretches the law to suit policy preferences, they actually reduce the credibility and authority of the judiciary,” Gonzales says. “In so doing, they undermine the rule of law that strengthens our democracy.”

Isn't it ironic? Apparently, public political attacks on federal judges do nothing to undermine the independence of the judiciary ("the third, and equal, branch of government"), and appointing judges based on their willingness to defer to an imperial presidency does not "undermine the rule of law that strengthens our democracy."

And war is peace, too, by the way. Viva Baghdad!