Reader Request Week 2006 #5: A Political Judiciary
Activist judges everywhere! Ohako asks:
“When did the judiciary become so political? Activist judges here, there, and everywhere!!
I once sat on a jury, and when we were done, we explained our verdict a little to the judge. He didn’t care, and I was impressed because I realized that it was his job not to care, one way or the other. His duty was to render fair justice, without any personal bias at all.
So why is it now that being a judge, at any level, seems to be another Red State/Blue State dichotomy thingy? Rather than being just another technical sort of job?”
Well, Ohako, to the first, the phrase “activist judge” is crap propoganda. “Activist judge” is the rhetorical bludgeon that the right-wing folks currently in power have decided to use any time a judge gives a ruling that doesn’t fit their agenda. As I’ve said before, the most “activist” ruling of the last decade, if we’re talking about the judiciary thwarting the will of the people, was the Supreme Court ruling that gave the presidency to George Bush. Yet no one seems to be calling Antonin Scalia an “activist judge.”
Having said that, “activist judge” is a brilliant rhetorical phrase, because regardless of its relationship to reality, it allows its users to describe their enemies in ways that both put their enemies on the defensive and also gull the unsophisticated masses. Most people don’t know or understand the role of the judiciary, nor understand (at the federal level at least) that it is explicitly designed so as to be insulated from the day-to-day electoral and political pressures the other two branches of government face. Complaining that “activist judges” are not responsive to the “will of the people,” particularly when that “will” is expressed by the political “want” list of the executive or legislative branches (even if both branches are currently polling below 40% approval) is in many ways complaining that the judges are doing their job as defined by the Constitution. But most people don’t get that; they turn on the talk radio and listen to bloviating right-wing lard brains model a version of separation of powers that has absolutely nothing to do with Constitutional reality.
Those in power know the model they’re promoting to the politically unsophisticated is a bad one, and what should be particularly galling to the people they’re selling this Constitutional snake oil to is that in reality, those in charge on the right don’t actually want the judiciary to be more politically responsive and less “activist” — otherwise Bush wouldn’t be so busy trying to jam people onto the Supreme Court (and into lower courts as well) whose political and judicial theories are far to the right of the general population. The Bushies rely on the staying power of an insulated judiciary to extend their political agenda long after Bush will be out of office — and indeed hope that these judges will be “activist” in their political direction, batting back the electoral will with their own unique view of US Constitutional law.
This is par for the course for the Bushies and their right-wing fellow travelers who prize their unchecked power over the constraints of the Constitution and whose theory of politics is best described as “feckless,” since the same right-wing bootlickers who are busy eviscerating the Constitution for the benefit of Bush today will the ones climbing the ramparts to take it all back if a Democrat gets elected president in 2008. There is no political theory on the right today; there’s just what they think they can get away with. This is sad for Republicans and conservatives who actually do prize the US Constitution and the rule of law, of course. Maybe next time they’ll run a presidental candidate who can actually think. In the meantime, of course, the monkeys are in charge, and they can take comfort take that the morons on the left are so ineffectual that they can’t actually get it together to counter a phrase as politically vapid as “activist judge,” much less counter any of the concrete violations of the Constitution currently taking place.
Now, before it looks as if I am blaming every bad thing ever on the Bushies, let’s review US history, in which we find that presidents have ever played politics with the federal judiciary. Indeed, one of the great Supreme Court rulings, Marbury v. Madison (which established the right of the Supreme Court to be the Supreme Court as we understand it today) arose because outgoing president John Adams created a bunch of judicial positions and packed them with his political fellow travelers in an attempt to thwart the political plans of Thomas Jefferson, who had just crushed Adams in an election. Closer to our own time, and on the recognizably opposite political end of the spectrum from the current Bush administration, Franklin Delano Roosevelt in 1937 tried to get around a Supreme Court hostile to his New Deal by proposing to add a Supreme Court justice for every sitting justice over the age of 70 (thereby allowing FDR to appoint judges sympathetic to his politics). This didn’t fly, but it seems to have scared the then-sitting judges into allowing some New Deal provisions they seemed otherwise to be ready to bounce. For the record, I find FDR’s (and Adams’) attempts at court-packing fairly loathsome; say what you will about Bush, but his people aren’t imaginative enough to pull stunts like these. But the point to be made here is that being political about judges really is nothing new.
Are today’s judges “activist” — meaning they arrogate to themselves the powers that should reside with the other branches of government? By and large, I think not — I believe the majority of federal judges, even the ones whose judicial philosophies I disagree with, try to do their job faithfully and in accordance to the Constitution (moreover I also suspect that state and local judges do the same under the laws by which they rule). What is different — at least in very recent time — is that currently the right wants to suggest the judiciary is unchecked, arrogant and politically-minded. But inasmuch as many of the rulings decried as the result of “activist judges” are legally rigorous and sensibly ruled — just not what the folks on the right wanted — it’s pretty transparently partisan whining.
When will the howling about “activist judges” die down? I suspect when and if people come to power who understand that the role of the judiciary under the US Constitution is not, in fact, to let the president do everything he wants to do because he feels like it’s something he wants to do. In other words, when people come to power who actually respect the US Constitution.
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