Thursday, November 03, 2005


I don't necessarily like the term "judicial activism" because it doesn't really mean anything. Perhaps the best desciption is that it refers to justices who decide cases based on their own personal policy preference or idology than on the written law. The term is usually employed by people - like yours truly - aginst leftists who seemingly hope to enshrine their political preferences into law. I concede that there are certain conservatives who fall prey to this vice, and that was most prominently on display during the recent Miers showdown. Outcome conservatives largely argued that Miers should be confirmed because she would vote in a manner that satisfied conservatives. Process conservatives largely argued that her personal beliefs were irrelevant - what matters is how a Justice reaches said conclusion. Admittedly, not all Miers' opponents rested their oppositions solely on qualificiations, and even I worried about her judicial philosophy. But judicial philosophy and ideology are not necessarily related. When I speak of judicial philosophy, I am referring to one's approach to constitutional interpretation. I am truly concerned with how one interprets the document. Does he view it as a "living, breathing" document? Does he go by only the strict, written language, or does he infer the Framers' original intent? How much weight does he give stare decisis? These matters are related tangentially to ideology, but not directly, so saying that one has a "liberal" or "conservative" judicial philosophy is meaningless.

This is a long way of getting to John Hawkin's excellent analysis today on Right Wing News. He offers an excellent analogy:
The job of a Supreme Court justice is, in many respects, similar to that of a judge or umpire -- or at least it should be. The reason that Democrats and Republicans have such enormous battles over judges is because conservatives and liberals have very different ideas of what the role of the "umpire" should be.

Conservatives, who believe that they can sell their ideas to the American people, want the "umpires" to call the game right down the middle. On the other hand, liberals want the "umpires" to give them favorable calls that will allow them to achieve victories in the court room that they can't achieve in the legislative arena.

One case that will help show you the difference between how conservatives and liberals view the law is the "strip search ruling" (Doe v. Groody). In that case, Samuel Alito wrote in a dissent that the police did not overstep their authority by strip searching a ten year-old girl living with a suspected drug dealer.

Hawkins goes on to quote a Daily Kos diarist who is appaled with Alito's dissent.
"I'm the father of a 7-month old girl, and I will NOT live in an America where the government can force my daughter to strip and be searched, unclothed, at its whim.

I have no doubt that most Americans feel the same way.

Alito is a disgusting pervert who believes that innocent ten-year old girls should be forced to take off their clothes at the whim of the government.

I'm so godd*mned angry right now I could spit fire."

As Hawkins rightly observes, the writer is not concerned with how or why Alito reached his conclusion, but rather he complains about the outcome. But Alito does not wish to see ten-year olds strip searched, but he reaches his decision because that is what the law says should be the outcome. It calls to Mind John Robert's wonderful explanation during his confirmation hearnings that he will sometimes be for the little guy, but sometimes he'll also decide for the big guy if the law or constitution dictates the big guy should win in the particular case. Or, as Hawkins explains:
Because the job of a judge is not to make rulings based on his personal likes and dislikes, it's to decide what is permissible within the law. Since this strip search was permissible within the law in Alito's opinion, he felt that it was not the place of the court to rule that that the strip search was improper.
That's why I laugh when people claim that conservatives want judicial activism as well - just of a different variety. Not so - at least, not for the majority of us. No, we'll leave it to the left to worry about ideology. And if you think it isn't primarily about ideology with the left, Senator Pat Leahy is here to tell you otherwise:
"He is certainly competent," Mr. Leahy said after meeting with the nominee. "This is a whole issue about ideology."


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