Both sides like activist judges, just not the ones that rule against their positions. You think Dems liked Bush v. Gore? It was a clearly activist, Supreme Court that forced its way into an issue explicitly set aside for the state. What could be more activist than that? Flip that around, conservatives were talking about legally sanctioned murder and the need to ignore the judiciary during the Terri Schiavo case, which was the most litigated right to life case in American history. Everybody knew it was going to be stuck down because it was clearly unconstitutional. That didn’t stop howls of “judicial activism.”

In any event, off to play golf.

Best,

Pat

The point of the OTHER story (as I read it anyway) you just dragged in here was actually the left’s sympathy/attitude toward Islam’s treatment of women and a myriad of other issues; the “hypocrisy” of Western apologists, I think she called it. That makes my example pretty much on point, I think- sorry you didn’t dig it. That night’s “assault” on me was only led by the nutty professor- he had plenty of help from the other lefties in the room, trust me.

Now, back to the NYT thing- I didn’t know I credited them with the study. I was just talking about how they spun it, that’s all. They do, after all, get to pick the op-eds they run.

No hard feelings, bro. Sorry my occasional posts tend to answer the questions incorrectly in your world…

A judge’s role is to apply the individual rights of the citizens and the restrictions on government found in the Constitution to the facts of a particular case, whether that involves the interpretation of a statute or not. Judicial activism is where a judge believes that his or her interpretation of what the Constitution says to be colored by changing societal conditions, the so-called “living” Constitution (of course the Constitution is a living document, as it has a mechanism for amendment, but liberals seem to ignore that).

Your thought hypo begs the question a bit. A law banning civil unions is not unconstitutional unless homosexuals are a protected class or gay marriage is a fundamental right. These are the only situations where heightened scrutiny is supposed to be applied to a statute. Admittedly, the SCOTUS’s completely muddled and unintelligible opinion in Lawrence v. Texas confuses the question (and if you read the O’Connor concurrence you will see that the majority holding is not based upon equal protection), but until then there had been no question that heightened scrutiny does not apply to gay rights questions.

I think I know what you were driving at though, and the answer is no, I would not want an activist conservative judge. For instance, if a judge held that a law legalizing abortion in the State of California was unconstitutional, I would consider that inappropriate. But note how rare such an animal is. We have such a skewed landscape that judges who simply want to apply the Constitution as written are viewed as “right wing,” when really this should be considered the moderate position.

The street runs BOTH ways.

- SSHM

Yes, by the definition used in the study cited, it would be. CL is keen to tell me I don’t understand what “activism” means to conservatives, like understanding this mysterious race of ideologues is not possible for someone outside the fold (I once was), but as I understood the term – “activism” means that judges make law from the bench by striking down or expanding laws enacted by the people’s representatives. That was the case with abortion. Do I have this wrong? I’m more than willing to concede I’ve reached the wrong conclusion, but watching Jerry Falwell and Pat Robertson doubt the very validity of judicial review has me thinking otherwise.

Perhaps you could explain to me what “activism” means. Clearly, I’m missing something after decades of hearing the word activism and abortion in the same sentence.

Back to the matter of “empathy” and diversity. Yes, she made a comment about diversity playing a part in judicial decisions but added in the same discussion that judges needed to “transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.” Similarly, Sotomayor also noted in a discussion that the appeals courts are “where policy is made.” That’s the section you will continue to cite, but you conveniently leave out the subsequent sentences, “I’m not promoting it, and I’m not advocating it,” but rather was explaining that “the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application.” That’s statement of fact. Like it or not, constitutional interpretation, forges and constrains public policy.

Face it, she’s a moderate. Sure she has a liberal voting record, but that in itself does not make her an activist judge. She’ll pass with 85 votes. Deal with it.

If the courts overturned a law passed banning civil unions, thereby making gay unions legal – would that be activism? Seems clear that it’s a matter of equal protection under the law. It’s unconstitutional, but somehow I doubt it would be considered good jurisprudence by you folks.

And Mike, the study was not conducted by the New York Times, merely cited. I know it’s your practice to answer and address the question you want to answer, not the one asked, but try sticking to the point. The New York Times is irrelevant to the discussion. Yesterday, you managed to address a question about female rights in Islam by discussing a nutty professor’s sympathy for Hamas. What did that have to with Herzog’s strawman argument that the “left” has ignored the plight of women in the Middle East and Africa? In fact, nothing.

So by your logic, allowing a plainly unconstitutional statute to stand is what, conservative? This is pure sophistry, as it omits the central question – how does the judge view his or her role in interpreting the Constitution. Your statement would be like saying my kids’ pediatrician is a better doctor than my grandfather’s oncologist because he has fewer patients die. Context is important. I suspect you know that, but liberals need their cute rationalizations.

“When conservatives talk about ‘activism’, that’s a dog whistle meaning abortion.”

I always appreciate it when Pat comes on to explain conservative positions to us. Such a valuable public service he offers. If conceding the abortion question (i.e. dropping all challenges to Roe) would get liberal judges to stop making the law in other areas(as Sotomayor tells us, the Court of Appeals is where policy is made), I believe I would take make that Faustian bargain.

By the way, I suppose you would concede that Roe is a perfect example of judicial activism, as it overturned a statute.