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This Week in Liberal Judicial Activism—Week of July 28



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Toying with the Constitution, and judicial confirmations then and now:
  
July 282004—In dissent in Williams v. Attorney General of Alabama, Eleventh Circuit judge Rosemary Barkett opines that an Alabama statute that prohibits the sale of sexual devices (which Barkett also refers to colloquially as “sex toys”) violates substantive due process.  You might think that a case involving a challenge to the constitutionality of a statute prohibiting the sale of sexual devices would be about sexual devices.  But, Barkett tells us, “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or sexual devices.”  Rather, “[i]t is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.”   
  
July 291994—By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court.  Breyer replaces retiring Justice Harry A. Blackmun.

Breyer’s path to the Supreme Court began when President Jimmy Carter nominated him to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981.  Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit. 

2003—Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit.  With only two Senate Democrats voting yes, the cloture vote fails.  Owen, first nominated in May 2001, is ultimately confirmed in May 2005.

  
July 302003—The seventh cloture vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit yields the same result as the first cloture vote nearly five months before:  Only four Senate Democrats vote for cloture, and the vote fails to end the filibuster.  On September 4, 2003, Estrada withdraws his nomination.  Commenting on the Democrats’ successful filibuster of the Estrada nomination, Senator Chuck Schumer turns faux-originalist:  “my guess is that [if] the founding fathers were looking down on the Senate today, they’d smile.”  Guess again, senator.
  
July 311996—The annals of This Week suffer a severe blow, as arch-activist H. Lee Sarokin resigns from the Third Circuit after less than two years of service.  Imagine what he could have accomplished with more time!  (See This Week entries for Feb. 6, Feb. 14, May 3, May 22, and June 7.)  Even Sarokin’s reason—or, more precisely, his stated reason (see This Week for April 25, 1996)—for resigning is intensely political:  he informs President Clinton by letter of his fear that “my decisions will continue to be used against you and others in the upcoming campaign.”  In other words, Sarokin resigned in order to minimize the adverse impact that his ongoing rulings would have on the political fortunes of his favored candidates.
  
Aug. 31993—By a vote of 96 to 3, the Senate confirms President Clinton’s nomination of D.C. Circuit judge Ruth Bader Ginsburg to the Supreme Court seat vacated by Justice Byron White.  Confirmation comes a mere seven weeks after Clinton announced his decision to nominate Ginsburg. 

And how, after all, could there have been any controversy over a former ACLU activist who, among other things, had stridently criticized the Supreme Court’s 1977 ruling that the Constitution does not require taxpayers to fund abortions … who had stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy … who had proposed abolishing Mother’s Day and Father’s Day and replacing them with an androgynous Parent’s Day … who had criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles … and who had urged that prisons be co-ed rather than single sex?  (See here for documentation of the last several points.)  That’s what the media call a “mainstream” and “moderate” nominee.

  

For an explanation of this recurring feature, see here. 


Tags: This Day in Liberal Activism


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