The Sotomayor Hearings Expose the Judicial Activism Myth
By Bonnie Erbe, Thomas Jefferson Street blog.
U.S. senators frequently spend way too much time belaboring the obvious or posturing during opening statements before they start questioning Supreme Court nominees. But today's statement by Democratic Sen. Sheldon Whitehouse of Rhode Island is a surprising exception. In his statement, he laid bare the fallacy of judicial restraint, used by conservatives to pretend that conservative-leaning judges don't make new law, whereas "activist" liberals do:
For all the talk of "modesty" and "restraint," the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases, for example; the first limitation on Roe v. Wade that outright disregards the woman's health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Over and over, news reporting discusses "fundamental changes in the law" wrought by the Roberts Court's right wing flank. The Roberts Court has not lived up to the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.
I have railed about the fallacy of judicial restraint in this space before. After covering the Supreme Court and Justice Department for a radio network in the 1990s, I became convinced that all judges, whether liberal, conservative, or moderate, bring their chosen reasoning into arriving at judicial decisions. Neither side is immune from blurring personal political proclivities with their rulings as judges. It's just that conservatives try to pretend they are. The pretense is passé and needs to go.
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Tags: Sonia Sotomayor
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Republican Myth
The Republican Myth is that they are the party of "Conservatism." The party, its disciples and talking heads are selling a right wing activist agenda on the American people that has no real grounding in modern time honored principles of "Conservatism". To the contrary. Neconservatives have taken hold of what most think of as American Conservatism and they are not following any logical intellectual pattern that emanates from the principles espoused by the Godfather of Modern Conservatism, Barry Goldwater. Much of what is passed off as "Conservatism" is farcical right wing activism. The corporate mainstream media may have more liberal, intellectual and thoughtful folks among their ranks, but ownership of most if not all of the mainstream media is in the hands of the most right wing forces in American Society. Barry Goldwater is rolling over in his grave right now. Anything that is not right wing activism is falsely labeled leftist. They perverted and demonized the term "liberal" beginning in the 1980's and now are falsely trying to co-opt the term conservative for what is most right wing activism.
Hey, look what I "discovered"
A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.
"and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years."
If it took 220 years for someone to notice this line in the Bill of Rights then people really are stupid.
Thanks, Bonnie!
I'm so tired of Justices being labeled "activist" every time they uphold the Constitution.
I prefer a Court that errs on the side of caution. A Court that looks at a law that could be in violation of the Constitution and strikes it down. A Court that says to the legislature, "Whoa there! We think you crossed the line."
The Court's job is to make sure that the government doesn't overstep its bounds. To make sure that the government doesn't try to exercise more power than the Constitution has granted it.
A Court like that sounds awfully conservative to me. So, how come this isn't the kind of Court the party of small government is in favor of?
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