Wednesday, July 20, 2005

Activist Judges (et al)

We have heard much in the past several months about "activist" judges. An activist judge is one, we have been told, who "legislates from the bench". Even a moderate justice like Ms O'Connor has been described as an activist.

This term is not used by Republicans alone. Just this morning, I heard Patrick Leahy (ranking Dem on the Senate Judiciary Committee) say he would evaluate Judge Roberts partly based on whether he would be an activist judge.

This term seems to me meaningless. I find it hard to imagine how a judge might rule that would not generate an action. To paraphrase Newton, every ruling has a reaction.

To take a hot button issue, any ruling on Roe v. Wade will generate an action. Overturning Roe v. Wade would likely have some negative consequences (i.e., back alley abortions). Not turning RvW might maintain the status quo, but this is still an action.

A justice ruling either way at the Supreme Court level will say s/he is intrepreting the Constitution. It seems clear to me that when someone - on either side of the aisle - says a judge is "activist", what they mean is the judge in question does not interpret the Constitution in the same way as that person would.

Wouldn't it be easier, and more accurate, to say you don't agree with a judge's rulings, and detail the reasons for your disagreement?
One might be forgiven for believing certain groups had templates ready regardless of who W nominated. Sure enough, petitions from MoveOn and True Majority were waiting for me in e-mail box this morning.

And the buttons were fairly predictable: Roe v Wade, environmental protection, working class rights, etc etc.

The problem with these messages are two-fold. Every single one has a shrill Chicken Little tone to it - if I don't sign their petition, democracy as we know it will come to an end. It's difficult to take these sorts of alarmist messages seriously, after a certain point.

Secondly, their messages are consistently reacting to something W has done. In this fashion, the agenda is set out by the Republicans and their designated chatterers. Isn't it about time that Democrats and Progressives started talking about a unique agenda that is not just reactive?
On the positive side, news of the nomination seems unlikely to knock the Plame/Rove/etc affair off the front page. For example, Josh at Talking Points Memo points us to this article in The Washington Post. Here's the opening graf:
A classified State Department memo that may be pivotal to the CIA leak case made clear that information identifying an agent and her role in her husband's intelligence-gathering mission was sensitive and shouldn't be shared, according to a person familiar with the document.
Assuming, as many have, that this memo is how Karl Rove learned of Ms Plame's identity, he can hardly profess ignorance that she was covert.

The law many on the left have pinned their hopes on is broad enough that Rove still may get away clean. As above, interpretation of the law will be key - and it has yet to be tested in court. Aside from the name/identify theme that has been popular on the right, it would have to be proven that his intent was malicious.

In the case of Rove, one would have to say "Duh! Of course it was malicious!" But knowing it and proving it are two different things, as they say.

In an ideal world, W would ask for Rove's resignation to fullfill his promise (in 2000) to return integrity to the White House.

If the past five years have taught anything, they have taught us that the current administration has a very odd definition of integrity.

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