October 07, 2005

Activist or Loyalist?

How many times did we hear President Bush say he wanted to nominate judges who would strictly interpret the Constitution and not “… legislate from the bench…”? After all the uproar about ‘activist’ judges over the past year, one would logically assume that ‘activist’ equates to legislating from the bench. So, let’s take a look at the judicial system and what it means to be a judge... and most particularly, the awesome responsibility of being a judge on the United States Supreme Court.

What Makes a Judge an ‘Activist’?

I’m still a little fuzzy as to what exactly constitutes an ‘activist’ judge. What I’ve seen so far is that an ‘activist’ judge is one who allowed Terri Schiavo to die. Oh yes, ‘activist’ judges are murderers! Well… let’s take a little deeper look. The judge’s responsibility is to interpret the United States Constitution and the subsequent laws that have been enacted. Technically, they don’t make laws themselves, but you wouldn’t know that by the whole ‘Roe v. Wade’ issue. Oh yeah, didn’t the Supreme Court legalize abortion?

Judges only make decisions based on the cases before them, and there are several challenges that they face in the process. Firstly, the laws as written are not always clear and distinct. Even ‘the letter of the law’ can be ambiguous. Secondly, on occasion multiple laws conflict with each other, and judges must decipher which one prevails. And as they do, they set precedent for subsequent cases.

In the case of ‘Roe v. Wade’, the Supreme Court didn’t ‘legalize abortion’. Instead, they determined that the Constitutionally guaranteed right to privacy had precedent over the government’s right to interfere, otherwise considered her right to ‘choose’. In the case of Terri Schiavo, the Court ruled once again that the family’s right to privacy was paramount to the government’s right to control what they do. Is that ‘activism’? Or, is that a strict interpretation of the Constitution?

If you really want to talk about activist judges, let’s talk about the 2000 Supreme Court which overruled Florida’s right to recount, and literally handed the presidency over to George W. Bush after the electoral process failed to distinguish a winner. Was that activism? Or, did they strictly interpret the Constitution and guarantee George W. Bush’s right to equal protection?

Loyalist Judgment

As soon as GWB stole the election last November I cringed at the probability that he would have the opportunity to appoint between 2 and 4 new judges to the US Supreme Court. I knew right then and there this country was in for real trouble. Over the last few months George had two vacancies open and he’s come up with two candidates. In each case he’s nominated people who are utterly unqualified for the responsibility.

The latest nomination, Harriet Miers, is a doozey. I loved Jay Leno’s perspective (from memory).. “Let’s see, she’s a Bush loyalist with no experience… and we’ll be relying on HER JUDGMENT?” The only redeeming value to Harriet Miers in my opinion, is that even the right-wingnuts don’t like her. It’s so satisfying watching Republicans eating their own.

When will we stand up and stop putting up with this cronyism? How can we sit back and allow the idiot in the White House to continue to appoint people who are unqualified to critical positions of responsibility? His only qualification is loyalty. Didn’t he learn his lesson with Michael Brown?

Here’s My Theory

George is stacking the Supreme Court deck because he knows that very soon he or any number of his cronies will be before the Court facing the music. How better to ensure success than to have most of the judges on your side. Isn’t that how he won the election in 2000? There are so many scandals and indictments; you need a scorecard to keep track of them all. The only questions are who will burn, and who will get off Scot-free because the Supreme Court has been ‘stacked.’


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