Sotomayor Hearings Remind Us the Republicans Can Be Judicial Activists, Too

It was not surprising, watching the opening acts of Sonia Sotomayor's confirmation hearings, that the specter of "judicial activism" was raised. What was surprising was the extent to which Democratic senators were entering this classically conservative field of complaint.

"Judicial activist" typically refers to judges who go beyond ruling according to the existing law by using their decisions to create new laws from the bench, disregarding legal precedents and legislators' intent. Judicial activists, critics complain, discern heretofore unseen rights and governmental powers in the Constitution. It is a long-standing conservative cudgel, last week taking rhetorical form in Republican lines of questioning about "empathy" and bias.

Alabama Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, worried that President Obama's desire for an empathetic jurist would lead to a "liberal activist, results-oriented, and relativistic world." But Democrats have been uncharacteristically aggressive on the issue. A Washington Post analysis found that Democrats used the word activist 17 times during their opening remarks, opposed to only six times by Republicans.

Democrats have good reason: As is increasingly clear, conservatives are as capable of "judicial activism"—not to mention eccentric legal theories—as their liberal colleagues.

Democratic Sen. Russ Feingold of Wisconsin said of judicial activism, "That term really has lost all usefulness, particularly since so many rulings of the conservative majority on the Supreme Court can fairly be described as 'activist' in their disregard for precedent and their willingness to override the intent of Congress. At this point, perhaps we should all accept that the best definition of 'judicial activist' is a judge who decides a case in a way you don't like." The panel's newest Democrat, the freshman senator from Minnesota, Al Franken, echoed Feingold, noting that "during the Rehnquist court, Justice Clarence Thomas voted to overturn federal laws more than Justices [John Paul] Stevens and [Stephen] Breyer combined."

They have a point. Last fall, for example, the court found in District of Columbia v. Heller a constitutional individual right to bear arms, a right that had lived in popular political imagination for a long time but had not been noticed by previous generations of jurists. Overturning the District of Columbia's ban on handguns was rightly called "judicial activism," and not just by lefty gun control fans. The case, conservative Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals wrote for April's issue of the Virginia Law Review, "represents a failure—the court's failure to adhere to a conservative judicial methodology in reaching its decision. In fact, Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts." Wilkinson went on to compare Heller to Roe v. Wade, about as smart a slap as one conservative lawyer can take at another.

Or take the much-discussed case of Ricci v. DeStefano, wherein white (and Hispanic) firefighters sued New Haven, Conn., for reverse discrimination when a promotion test they took was discarded because none of their black colleagues did well enough on it. If you listened to conservatives, you might think that Sotomayor had personally reached out from the bench to set aside the test results. But she didn't enter the picture until the white firefighters were appealing their initial loss in a lower court, at which point she and her appellate colleagues concluded that the city's decision fit within the existing laws and court precedents.

Conservatives celebrated when the Supreme Court sided with the white firefighters, but the decision underscored a tension between different facets of their political philosophy: Judicial activism was used to strike a blow against affirmative action. "When it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint," National Review's Ramesh Ponnuru wrote in the New York Times shortly before the decision was handed down.

The list goes on. One Democratic senator listed eight precedents the Roberts court has overturned in the past two years; another listed at least five.

Of course, Democrats and progressives are probably motivated (or at least frustrated) by more than judicial overreach. The Bush years saw a renewal of the imperial presidency, with novel legal theories that greatly expanded executive power and especially seemed to leave the president almost without checks when acting in defense of national security. Many conservatives who express such outrage when the courts or Congress discern inherent governmental powers in the Constitution were equally vehement in their defense of the executive branch's unwritten prerogatives. Listen in on phone calls without warrants? Unilaterally cancel treaties (which have the force of law)? Use "signing statements" to partially veto laws even as they are enacted? Indefinitely hold U.S. citizens as "enemy combatants"? As the constitutional scholar R. M. Nixon once said, "When the president does it, that means that it is not illegal."

Happily, the courts checked some, though not all, of the Bush-era presidential power grabs. Sotomayor does not have a clear record on such executive power issues, though she has expressed some skepticism regarding expanded wiretapping powers. Some senators have tried to get her to weigh in on such issues, but she has been, unsurprisingly, cagey. Hopefully, we'll discover she's a high-court check on conservative judicial activism.

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