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Ramesh: Conservative Judicial Activism



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Ramesh, conservatives would certainly be guilty of “judicial activism” if they engaged in it.   But it’s just very rare (nowadays) for “conservatives” to do so –because they believe in fighting political battles in the proper (political) arena, win or lose.  If you can provide a real current example of “conservative judicial activism” — because the two you have provided do not qualify – I would readily agree that it is improper “conservative judicial activism.”    The economic substantive due process at work in Lochner v. New York was “conservative judicial activism,” for example.  But Justice Thomas’s position on the Voting Rights Act does not qualify as “judicial activism” or as any betrayal of originalism, nor does the legal argument for Frank Ricci.    The text of the 14th Amendment says “No person shall be denied equal protection of the laws.”   The text of the 15th Amendment gives Congress enforcement power against racial discrimination in voting, not enforcement power in the absence of racial discrimination.   And nothing in the history of the 14th Amendment undercuts the argument that a white or Latino firefighter is discriminated against when a promotion is denied to him after a non-discriminatory test, on the ground that no blacks could thereby be promoted.   It is never “activism” to faithfully interpret and apply the Constitution.  If you are truly evaluating the text and history and principles of the Constitution (which never contradict each other, but where evidence is scanty in one area, it may be more plentiful in another;  this is the opposite of inventing stuff out of thin air, applying one’s own personal views, or invoking some evolving, enlightened global moral consensus), it isn’t activism;  it’s the only correct way to apply the Constitution as an Article III judge.   I want to bend over backwards to say you are right that ”conservative judicial activism” is possible, and that it’s as bad a way for an Article III judge to behave as it is to engage in liberal judicial activism.  I just want to come up with a better example, because your examples are wrong.  And because any really good actual example is so elusive, it’s proof that conservatives do not, as you imply, engage in anything like the judicial activism that liberals do.  Just look at Ed Whelan’s posts on this blog under “This Day in Liberal Judicial Activism”:  could you, in a million years, construct a parallel continuing feature, ”This Day in Conservative Judicial Activism”?  OK, ”On this day in 1905, a majority of the Supreme Court held that freedom of contract prevented New York from regulating the working hours of bakers….”      The material just isn’t there.  Your examples do not cut it for the reasons stated, but I am happy to validate your hypothetical thesis with a hypothetical case of conservative judicial activism or two:     Let’s say that some hypothetical Supreme Court (because there is not even one vote for this position on the current Court) ruled that the Constitution prohibits any abortion at all, i.e. that the 5th and 14th Amendments affirmatively and absolutely protect the right to life of unborn human beings in this country from their moment of conception — i.e., the perfect judicial opposite of Roe v. Wade and Doe v. Bolton.    Although this would be less of a constitutional and originalist stretch than were Roe and Doe themselves, and although some serious and scholarly people make this argument that the pro-life position is protected by the existing Constitution (I think, though I may be wrong, that this is the view of people such as Lew Lehrman and Doug Kmiec), I would understand if you said such an argument, or ruling, would represent “conservative judicial activism.”   Another example might be, if conservatives said, the Constitution (in its present form) enforces a regime of marriage limited to one man and one woman, and that if a state wants to legislate marriage among persons of the same sex, an unlimited number of persons of any sex, etc., states cannot do so.  I can see where one might label this “conservative judicial activism” — but, as we see, conservatives are not trying to do that, only to either (a) amend the Constitution properly, as the document itself provides, instead of illegitimately “amending” it by judicial fiat, or (b) fight the battle for traditional marriage in the legislatures, where absent a proper constitutional amendment it belongs.   That these are mere hypotheticals is the point:  conservatives just aren’t doing what liberals are doing in the judicial activism category.  And if there were ever a moment when this point needs to be conveyed to the great majority of Americans whose instincts on this are so much sounder than Larry Tribe’s, and Barack Obama’s, and Ruth Bader Ginsburg’s, and Sonia Sotomayor’s, it is now.  This is why your column was so heartbreaking.     As one ”soccer mom” told me today, the arguments about the court seem like “inside baseball” to her fellow Americans (the ones who are going to sustain or allow the collapse of self-government):  “They just think it’s about liberal vs. conservative and whose ox is getting gored.  They don’t realize that this is about procedure and order and the rule of law, on the one hand, vs. chaos and power grabs on the other.”

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He Said It



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It is incontrovertible. Multiple sources confirm that they remember it the same way. And they are not John Fund’s source, as Novak reports.

Maybe McCain forgot. Other people didn’t. They, and many Americans, are genuinely concerned about this issue. As my post on Alito testimony reflects, this was indeed an issue in his confirmation. That Alito was purportedly a “conservative ideologue” was a myth cooked up by liberal antagonists trying to bring down his nomination. Which is why so many people from across the political spectrum who knew then-Judge Alito came forward to refute it.

McCain, long after the fact, repeated what the Ted Kennedy / Moveon / People for the American Way crowd said about Alito. We don’t know what to make of it, because it’s as outlandish as if McCain had said, “As President, I will not send a man to the moon, because the moon wears its green cheese on its sleeve.”

It makes no sense. But he said it. Whether he remembers the specific comment or not, he did say it. So we need to try to understand it, or at least get some pretty detailed commitments from Senator McCain going forward. I hope he, and others, will understand why this is necessary. A President who confuses adherence to judicial restraint with conservative political decisions is very confused about how to select judges. It is one thing to vote for, and even praise, judges some other chief executive has picked (especially when it would be political suicide not to). It is another to discern good Supreme Court appointments. Just ask Ronald Reagan, or George Bush (pere or fils, take your pick).

A friend just reminded me what Bill Buckley once told him about a conversation Buckley had, either with President Eisehhower or his chief of staff, Sherman Adams, looking back on the administration.

“Why weren’t you more conservative when you were in the White House?” Buckley asked. The answer: “Why didn’t you force us to be?”

Pearl of wisdom for the day from WFB.

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McCain and Alito: “conservatism on his sleeve”...not.



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Senator John McCain, as recently reported and discussed here and on The Corner, has said privately that he would not appoint jurists like Justice Samuel Alito, because he ”wears his conservatism on his sleeve.”

To refresh recollections:  many of Justice Alito’s former law clerks, fellow Article III judges, and others — a good number of whom were liberal Democrats — testified during his Senate confirmation to the exact opposite proposition:  that Justice Alito did not wear any political ideology or convictions “on his sleeve.”   Just a sampling of that testimony:   *  Katherine L. Pringle (former law clerk, “committed and active Democrat”):  “I learned in my year with Judge Alito that his approach to judging is not about personal ideology or ambition, but about hard work and devotion to law and justice. . . . Judge Alito did not, in my experience, ever treat a case as a platform for a personal agenda or ambition. Rather, his decisions are limited to the issue at hand. They demonstrate an effort to interpret honestly, and faithfully apply, the law to the parties that seek justice before him . . . .”   *  Jack White (former law clerk, member of the NAACP and the ACLU):  “Working for Judge Alito, I saw in him an abiding loyalty to a fair judicial process as opposed to an enslaved inclination toward a political or personal ideology. . . . What I found most intriguing and particularly exceptional about Judge Alito’s judicial decision-making process was the conspicuous absence of personal predilections. . . . After a year of working closely with the judge on cases concerning a wide variety of legal issues, I left New Jersey not knowing Judge Alito’s personal beliefs on any of them. The reason I did not know Judge Alito’s personal beliefs was that the jurist’s ideology was never an issue in any case he considered while I was in his chambers. In fact, it is never an issue in any case. My fellow former co-clerks have agreed and communicated this notion in a letter we provided to this committee.”

*  Judge Edward Becker (Third Circuit Court of Appeals):   ”The Sam Alito that I have sat with for fifteen years is not an ideologue. He is not a movement person. He is a real judge, deciding each case on the facts and the law, not on his personal views whatever they may be. . . . Sam is said to have certain ideological views, expressed in some twenty-year-old memos. Whatever these views may have been, his judging does not reflect them. . . . Sam is faithful to his judicial oath.”   The Honorable Anthony Scirica (Chief Judge, Third Circuit Court of Appeals):  “Judge Alito approaches each case with an open mind, and determines the proper application of the relevant law to the facts. He has a deep respect for precedent. His reasoning is scrupulous and meticulous. He does not reach out to decide issues not presented in the case. His personal views, whatever they might be, do not jeopardize the independence of his legal reasoning or his capacity to approach each issue with an open mind.”   *  Mr. Stephen L. Tober (Chairman, American Bar Association):  “The Standing Committee has unanimously concluded that Judge Alito is “Well Qualified” to serve as Associate Justice on the United States Supreme Court. His integrity, professional competence, and judicial temperament are indeed found to be of the highest standing.

Judge Alito is an individual who, we believe, sees majesty in the law, respects it, and remains a dedicated student of it to this day.”

*  Charles Fried (Former United States Solicitor General, who worked with Justice Alito in that office from the latter part of 1984 until he left the office at the end of 1985):  “Alito was highly respected. Nor do I recall anyone bothering to mention that he had any particular political coloration. In preparation for this testimony I have checked my recollection with several alumni of the office from that time and they confirm what I report here.”  

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Durbin, Southwick, and the Judicial Role



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Ed has done a great service in unmasking the lies and smears about Judge Southwick that Dick Durbin in particular, and other Senators, are spewing upon command from their handlers in the liberal extremist groups.

I just want to mention another typically misleading claim by Durbin, because it goes to the fundamental problem here: that he and his liberal cronies who want judicial activists on the bench insist on perverting the judicial role under the Constitution, and then vilifying others like Judge Southwick who refuse to assent to that perversion.

Durbin said on the Senate floor:  ”At Judge Southwick’s nomination hearing, I wanted to be fair to him and I asked him maybe one of the easiest questions you could ask of a nominee. I asked him to name a single time in his career or in his life when he took an unpopular point of view on behalf of the voiceless or powerless.  Mr. President, he couldn’t name a single instance.  And I thought perhaps that wasn’t fair.  The judge should be allowed to reflect on that question. I will  send it to him in writing, ask him, was there a time in your life when you sided, for example, with a civil rights plaintiff when your court was split?  He couldn’t name a single case in his judicial career.”  (emphasis added)
The reason, I submit, that Judge Southwick “could not name a single instance” is that “siding” with anyone is so foreign to his (correct) conception of judging that he naturally has not done so.  A judge’s job is not to “side” with anyone.  It is not even to side with the “voiceless” or the “powerless.”  (Senator Durbin:  is there anyone more “voiceless” or “powerless” than an unborn child?  What if Judge Southwick had said he “sided” with such a voiceless, powerless person?  Would that have satisfied you?)  
Good judges do not side with anyone.  They rule impartially and blindly based upon the law.  And they don’t keep mental tallies of how many times their rulings have benefitted plaintiffs, defendants, civil rights claimants, unborn children, the poor, the murderous, or anyone else.  Senator Durbin, can you recall a single instance in your career when you have ever understood this truth about impartial judges in our constitutional system?    

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“Abortionists”



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Seeing the postings on this subject of “abortion doctors” reminds me: I think I know where Justice Ginsburg gets some of her ideas.

Before the Supreme Court handed down its partial birth abortion decision, I participated in an electronic debate on the Federalist Society’s website with Jennifer K. Brown, vice president and legal director of Legal Momentum (formerly known as the NOW Legal Defense and Education Fund).

During our exchange, I used the word “abortionsts.”

I didn’t think at the time (pre-Ginsburg dissent) that the word was controversial. But Jennifer responded: “Is the term “abortionists” intended to convey contempt?” She preferred the term “doctors” — not “abortion doctors.”

I said the term “abortionists” was “intended to be merely descriptive. See Merriam Webster’s Collegiate Dictionary (10th ed.) (abortionist is “one who induces abortions”). The job of a cardiologist is to address heart ailments, the job of a dermatologist is to treat skin problems, and the job of an abortionist is to ensure that the unborn human being in the womb is successfully killed, in violation of the Hippocratic Oath. That’s probably why abortionists have always been the dregs of the medical profession, many of them actually former M.D.s who have lost their license to practice real medicine. Moreover, abortionists need not even be M.D.s, which is why your use of the word “doctor” is inaccurate. “Abortionist” is simply accurate. It is what they do. Is “oncologist” a pejorative term, because the oncologist removes unwanted tissue? If abortion is such a boon to women, it’s interesting that you assume there is something pejorative about the term.”

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The Ginsburg Dissent in Carhart



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The Federalist Society is sponsoring an unfolding electronic debate analyzing various aspects of the Partial Birth Abortion Act decisions by the Supreme Court.

My own contribution to this debate addressed not only the matters that we have all been discussing — stare decisis, facial challenges, etc. — but also Justice Ginsburg’s dissent attempting to reframe the abortion right as an “equality” right. Herewith an excerpt, and a link:

The thing that was a bit startling about the opinions was the attempted re-tooling of the general pro-abortion rationale in Justice Ginsburg’s dissent. Roe v. Wade and its progeny have long been a judicial fiat in search of a justification. Prior attempts to posit an abortion right in the fields of privacy and liberty, as the very bright Justice Ginsburg knows, lack intellectual rigor and judicial integrity, as many pro-choice legal scholars have themselves acknowledged. But the Ginsburg dissent is in a way, even less convincing. It might have been an amusing law review article 30 or 40 years ago, but it sounds strangely anachronistic to this female ear in 2007, and frankly, shocking as part of a Supreme Court opinion.

Liberty and equality are in a sense two sides of the same coin, constitutionally speaking: we are free men (I use the term “men” to mean humans; I count myself among such “men”) because we are equal under the Constitution, and we are equal because we are all free, in the important respects that our Constitution is able to vindicate those natural human freedoms.

But nothing in the Constitution itself, or any statute or judicial decision, can change the fact that women have babies. Men do not. It does not detract from female liberty or equality under the Constitution that only women can have babies. The Constitution cannot do anything about it. The hard-core feminist rhetoric that the “right” to have the brains vacuumed out of the skull of one’s own baby is the cornerstone of “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship” is gravely misguided as a matter of law and as a matter of ethics.

The full Federalist Society electronic debate on the Carhart decision is available here.

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The Far Left Fury on PBA: The Reason Why



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The Far Left statements are flying — Edwards, Obama, Planned Parenthood, NARAL — all foaming at the mouth, just because the Court showed a little bit of restraint and respect for democracy.  These liberal presidential candidates and pro-abortion extremists know they cannot convince the American people that partial birth abortion is a positive good.  They prefer to just get a handful of unelected judges to quietly implement extremist policies that can’t withstand rational debate and indeed, have failed both in the court of public opinion and in the legislative arena, where elected officials are accountable for their actions.

 

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The Liberal, Activist, Lawless Kennedy Court



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The important end-of-term decisions handed down by the Supreme Court, including Hamdan and the Texas redistricting case, point to one regrettable conclusion:  this Court is still a liberal, activist Court that issues decisions based on politics, personal preference, ideology, perceived international or humanitarian ideals – in short, on anything and everything except what should be its sole consideration:  the law.
At the epicenter of this problem is Justice Anthony Kennedy, who manages to make the entire Court look like a totally political body.  His concurring opinions of breathtaking lawlessness and irrationality, siding with the liberal activist wing of the Court, somehow taint the whole institution.  No wonder the current erroneous tendency among press and public to evaluate judicial nominees in political terms.
Justice Kennedy has long been this way – CaseyLawrence, the list goes on and on — but in the past he shared this “swing vote” pedestal with Sandra Day O’Connor, who at least wrote narrowing (if similarly unintelligible) concurrences a good deal of the time.  With O’Connor gone, Kennedy appears even more unhinged from law and reality, and the broad “swing vote” brush with which he paints is covering over more and more of the Constitution. 
The replacement of Justice O’Connor with Justice Alito has made a solid block of four whose stock-in-trade is the law:  its text, its principles, and its history.  But instead of four — the Chief Justice, and Justices Scalia, Thomas, and Alito — there could have been today a majority of six such Justices, if only well-intentioned former Republican Presidents, and their legal advisers, had inisisted on judicial nominees with a demonstrated public record of adherence to the law and fidelity to judicial restraint and the principles of the Constitution.  Today’s decision in Hamdan calls to mind President Abraham Lincoln’s response when he was accused of violating the Constitution’s grant of executive power by suspending the writ of habeas corpus during the Civil War.  The essence of Lincoln’s response was later articulated in another context by Justice Robert Jackson, who wrote that the Constitution cannot become a ”suicide pact.”   How ironic that Justice Kennedy, in his Hamdan concurrence, cited Justice Jackson on the extent of executive power.  How tragic that his analytical ability does not match Justice Jackson’s.   
The hopeful sign is that Americans are now focused on the need for proven constitutionalist Justices, as they were not when Justice Kennedy and Justice Souter were nominated by Republican presidents.  They know that the success of self-government is at stake, as President Lincoln said in his first inaugural address:

“If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . .  the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

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Reid Wants Votes on Judicial Nominees



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Herewith Harry Reid’s latest gems of statesmanlike eloquence, in response to a question from the press this afternoon about whether the Democrats would try to filibuster Brett Kavanaugh.

[Republicans] would rather have a fight than a fair discussion of this man and a vote. So we’re going to have the ability to debate Kavanaugh, whether it’s done with an agreed upon time — which, it would seem to me, what we’ve done around here on judges and other matters, for two centuries — or if they want to send a message to the right-wing: “Look, we filed cloture.” They have to file cloture to keep us from talking. That’s a waste of their time, because we’ll go ahead and allow cloture to be invoked and do our 30 hours then. 


If you cut through the fog of general Reid incoherence, there is a real gem in here: The Senate Democrat Leader admits that for two centuries, the Senate has had a fair discussion and a vote on judicial nominees. And he seems to endorse this concept.

Yes, there will be a fair discussion and a vote one on Kavanaugh. Why? Because the Republicans have prevented a filibuster, not because the Democrats voluntarily agreed to a time for “fair discussion and a vote.” 


But now that we know that’s what the Dems want….let’s ask Reid to schedule a “fair discussion and a vote” on every other judge as well.

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The Kavanaugh ABA Ratings: Bottom Line



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Brett Kavanaugh has received three sets of ratings from the ABA. All three of them have resulted in some mix of “qualified” and “well-qualified” ratings from the committee.

Accordingly, even the “lowest” rating he has received is, in the ABA’s own words, “a very high standard.”

And that is the bottom line of the ABA rating story, to the extent that anyone considers ABA ratings relevant.

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Farce and Filibuster



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Kathryn and Ed are right on the money. The idea that yet another Senate Judiciary Committee hearing on Brett Kavanaugh is necessary, or even remotely appropriate, is a farce.  Chuck Schumer, when he was not busy parroting the PFAW “partisan warrior” talking point, said this morning that another hearing is “the least that can be done for the nominee to the second highest court in the land and a controversial nominee.”  Wrong. What needs to be done for any nominee who has already had hearings and has been pending for years, is to VOTE “aye” or “nay” on his nomination.  This is true in spades if the nominee is really a “controversial” one. Why? Because senators need to be on the record, doing their job, being accountable to their constitutents for how they represent them on “controversial” votes. (The only thing “controversial” about Kavanaugh is that he works for President Bush, whom the liberals despise, and previously worked as independent prosecutor investigating the misdeeds of the Clintons.)  There is ZERO chance that Chuck Schumer will be voting for Brett Kavanaugh, and there is no further testimony Brett can offer that would be edifying to any rational senator trying to decide how to vote on his nomination. So Schumer’s disingenous line that “a lot of things have happened since the last hearing, in the administration of which he is a part” is of ZERO relevance to anything concerning this nomination. It has nothing to do with his job as a member of the Committee or the Senate. It has to do with his desire to satisfy the liberal Left approaching the next election cycle.  If this is the behavior of Senate Democrats, we need more than ever to vote to clarify in Senate rules what the Constitution contemplates and two centuries of Senate practice have always upheld, until now: a President’s nominees to the federal courts shall not be filibustered.

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