Friday Talking Points [79] -- Judicial Activism And Bias

"Judicial activism" (or, alternatively, "legislating from the bench") is defined -- no matter what your political beliefs -- as "judges not ruling the way I want them to." It's an inherently partisan statement to make, even if it doesn't sound like it. If you are a Republican, using the term means courts ruling for things you don't like. Same for Democrats. The irony is that while the charge is leveled in order to prove some sort of bias or prejudice in a judicial candidate or judge, the only thing it usually winds up proving is the bias of the accuser -- and not the accused. Because it almost always boils down to the accuser wanting the judge or justice in question to rule in a certain partisan way -- before even hearing the facts of any particular case.

Republicans have begun their campaign to derail President Barack Obama's nomination of Sonia Sotomayor to the Supreme Court. And, as usual, the cries of "judicial activism" are loud and shrill.

But what is missing in this entirely predictable debate is an admission of the basic facts involved. Because our government was set up by the Founding Fathers to include a constant power struggle between the three branches. From the very beginning, the courts have struggled with both various congresses and various presidents. And "legislating from the bench" is only part of the story.

There is also "adjudicating from Congress and/or the White House." And "legislating from the Oval Office." As well as "executive-ing from Congress and/or the courts" (OK, maybe that last one needs work, sorry).

Kidding aside, though, our three branches of government are in constant tension, because the Constitution is remarkably vague -- or outright silent -- about where the boundaries of power between the three branches lie. This omission sets up an ongoing battle over such power, which has been going on since the very beginning of our republic.

To begin with, the term "judicial activism" can be seen as somewhat of an oxymoron. Judges (and the courts) are by definition passive in our government. Courts are not allowed to interject themselves into anything they wish, no matter how much they may wish to do so. They have to, instead, wait for a case to come along with an actual injured party who is suing for redress of grievance. The judges can either grant this redress or deny it, but they cannot initiate the process. So, technically speaking, there is no such thing as an "activist judge."

But judges do interpret laws every day. The Supreme Court actually made one of the first moves in this power struggle, and carved out the power to interpret the Constitution out of thin air (see: Marbury v. Madison). By doing so, they declared themselves free to step all over Congress' ability to make law.

But just because they do so, doesn't mean the other two branches necessarily have to go along with them. When the Supreme Court rules and Congress doesn't like it, they have the option of quickly passing a law overturning the court's decision (see: Lilly Ledbetter law). Sometimes Congress overreacts in "adjudicating from Congress," and such power plays become painfully obvious to the public (see: Terri Schiavo).

The White House, as well, is in a constant struggle with both branches over the "executive privilege" claim (which is nowhere to be found in the Constitution itself). Sometimes presidents comply with court decisions on this issue (see: Nixon turning over his tapes), and sometimes they don't (see: Bush and Cheney stonewalling courts on many disclosure issues). Sometimes presidents just out-and-out defy the Supreme Court in blatant fashion (see: Andrew Jackson and the Cherokees, or Worcester v. Georgia).

Congress and the White House have their own lines of tension in this power struggle. Congress' ability to "perform oversight" over the executive branch waxes and wanes with strong Congresses and weak. Such a bedrock government power as the ability to declare war has shifted since World War II from Congress to the president, and has never fully been resolved by the courts (see: the War Powers Act) -- because both sides are afraid they'll lose if the Supreme Court ever actually rules on it. So they prefer to keep it vague instead of settling the issue once and for all. Even if the Supreme Court had strong opinions about the War Powers Act, it cannot take an active role until a case lands before them, since they are by definition passive.

In actual fact, the only truly clear lines in the Constitution's text are over how the branches can overrule each other -- the power to pardon, and the power to impeach, both of which are fairly absolute.

But in the past half-century or so, Supreme Court justices have come under a lot of partisan scrutiny (see: "Impeach Earl Warren!") because they have ruled on some issues which Congress has been too craven (or too politically deadlocked) to do -- like segregation in schools, for instance, or abortion.

Such tension between the co-equal branches of our government, however, should be seen as the natural state of our government as the Founders intended it. Because this is precisely what is meant by the phrase "checks and balances." The Republicans, currently in a minority-party snit, have recently been trying to redefine this term to mean "a healthy balance between two political parties so that one party doesn't rule across all branches of government."

This is absolute nonsense.

The concept of "checks and balances" has nothing whatsoever to do with political parties or partisan politics. It has to do with the courts standing up to Congress and the White House occasionally (as well as the other ways such struggles in our power triangle manifest themselves).

In other words, the Supreme Court from the beginning was supposed to be a "check" or "balance" to Congress' ability to make law. And if interpreting that law "makes" new law, then so be it.

Which is another way to define "judicial activism" or "legislating from the bench." Anyone who can't see that this is part of the "original intent" of the framers of the Constitution doesn't understand what "original intent" means. This power struggle has been going on for over two hundred years now, and is exactly what the Framers intended -- or else they would have explicitly laid down the boundaries when they wrote the Constitution. Judicial activism (whether it goes for your side or against your side) is as American as apple pie. It's part of who we are. Deal with it.


We have two Most Impressive Democrat Of The Week awards to hand out this week, I am happy to say.

The first goes to Secretary of State Hillary Clinton, for announcing this week that the State Department would be extending spousal benefits to cover same sex partners. Gays serving in the State Department will now receive the same benefits for their partners as married couples now enjoy. has the full list of what this covers. In the corporate world, this would not be seen as big news, since most international corporations granted spousal benefits to gay employees years ago. But it is indeed big news, because this is a department of the federal government, who, in the words of former ambassador Michael Guest (who resigned in 2007 after a 29-year diplomatic career) said treated diplomatic pets better than same sex partners. And it is big news because Clinton's effort may run afoul of the Defense Of Marriage Act (DOMA) which bans the federal government from doing precisely this sort of thing. The inevitable lawsuit by those who care about such things has not yet been filed, but will undoubtedly be in the works once Clinton officially makes the rule change. And Clinton testing DOMA in the courts is ironic, since it was her husband who signed the law in the first place. For standing tall on gay rights, Hillary Clinton gets a MIDOTW award. This is why the award is known as "The Golden Backbone," and we applaud Hillary for showing the strength of hers.

And the second (although we're not entirely sure she's officially a Democrat) goes to Sonia Sotomayor, for her life story and for being the first of Obama's nominees to the Supreme Court. Being the first Latina nominated to the highest court in the land is impressive enough, but the more you hear about her story, the more impressive she gets. I recently had the occasion to talk to a Princeton alumna who attended school with Sotomayor as an undergraduate. She said the most impressive thing about Sotomayor was not that she graduated summa cum laude, but that she won the Pyne Prize the same year. The Moses Taylor Pyne Honor Prize, given to the senior who has "manifested in outstanding fashion... excellent scholarship and effective support of the best interests of Princeton University," is Princeton's highest honor awarded to an undergraduate. And, according to my source, most Princeton grads remember who won the Pyne Prize over who their valedictorian was. It's that impressive. Sotomayor was the first Latina to win the prize, which is given not just for outstanding grades but also for community involvement and extracurricular activities.

While the Most Impressive Democrat Of The Week award may not be as prestigious as the other awards on Sotomayor's shelf, for her nomination to the Supreme Court she has had a week which can only be called "impressive" by all. For that, she has earned her MIDOTW award. Well done, Judge Sotomayor!

[Congratulate Secretary of State Hillary Clinton on the State Department contact page to let her know you appreciate her efforts. Congratulate Sonia Sotomayor via the White House's contact page, who will be shepherding her confirmation process.]


Sadly, we also have two winners in the Most Disappointing Democrat Of The Week category as well.

First up is Terry McAuliffe. You may remember him from the Clinton years. He is now running for governor of the commonwealth of Virginia. Since he knows oodles of deep-pocket donors, it's expected he will raise boatloads of cash for the primary race. But a rather ugly story surfaced this week, which McAuliffe did not deny. Ralph Nader publicly accused McAuliffe of a rather sneaky tactic in the 2004 presidential race. From the blog which broke the story: "Nader said that McAuliffe offered him an unspecified amount of money to campaign in 31 states if Nader would agree to pull his campaign in 19 battleground states." Mark Nickolas at Huffington Post has a good overview of the whole mess as well.

So, even though this occurred quite a while back, Terry McAuliffe is hereby awarded a retroactive MDDOTW award for trying to use cash to influence an election in a way that may not have been illegal, but certainly reeks of unfairness.

But in the "cash changing hands for nefarious purposes" category, McAuliffe isn't this week's most brazen disappointment. For that, we had Roland Burris' other shoe dropping. To review our story so far: Burris entered the Senate under a gigantic cloud labeled "Rod Blagojevich." Blagojevich appointed Burris on Blaggy's way out the door of the Illinois governor's mansion (from which he was dragged kicking and screaming, in disgrace). Blaggy was taken down for his whole "pay to play" theory of government. Burris, when he was being seated, was asked whether he had offered any "pay to play" money to Blaggy, and Burris denied the charge.

But one of those pesky tapped phone conversations came to light this week, in which Burris offered not only campaign donations to Blaggy, but also offered to mow his lawn every week, wash his car, and let him win at golf. Actually, I made most of that up -- I don't even know if the two play golf. Ahem.

Seriously, though, Burris is quoted in the transcript assuring Blaggy's brother that he would write a check for Blaggy's campaign, and (by the way) that Burris really, really, really wanted to be a senator.

So, both for the act of offering such "pay to play" money, and for lying about it later (to Congress, no less, some of whom are now seriously annoyed at Burris), Roland Burris has earned his Most Disappointing Democrat Of The Week award.

For shame, both of you!

[Contact Terry McAuliffe on his campaign contact page, and Senator Roland Burris on his Senate contact page, to let them know what you think of their actions.]


Volume 79 (5/29/09)

For the most part, the voices being raised against Sonia Sotomayor's nomination to the Supreme Court are doing their own job of discrediting themselves. So a light touch is recommended this week in pushback. Her detractors have already got enough rope to hang themselves, so to speak, with racial overtones on full display. Leading the pack is none other than Newt Gingrich, who shows once again (see: Newt serving divorce papers to his wife's hospital bed) that he has a spectacularly bad sense of timing.

For all Democrats, and especially those who happen to hold office and are being interviewed by the media this weekend, we present our weekly roundup of talking points.


   You just can't make this stuff up

Seriously, you can't.

"I notice that Newt Gingrich called Sonia Sotomayor a racist recently on Twitter. The most disturbing part of this story, though, is that he posted this less than 24 hours after he visited Auschwitz. You just can't make this stuff up, folks."


   Some good advice... from a Republican

Other (and wiser) Republicans are urging some caution in the attacks on Sotomayor. Will the red-meat base (and those who play to them or raise money from them) take note? Probably not....

"I notice that a Republican consultant named Lionel Sosa cautioned his fellow Republicans recently, and I quote, if a Republican doesn't care about getting reelected, and a Republican doesn't care about the image of the Republican Party, they may vote against [Sotomayor], but I think in the end, we'll see who the smart ones are and who the not-so-smart ones are by how they cast their votes, unquote. Now, I would not go as far as calling Republicans who vote against Sotomayor 'not so smart,' but I would recommend Republicans take Sosa's words to heart in considering this extremely well-qualified candidate."


   What about all those "up or down vote" quotes?

This one should only be used later in the game, but it's worth pointing out now just in case.

"Republicans, when they ran the Senate and with a Republican in the White House, endlessly demanded an 'up or down vote' by the full Senate over judicial nominees. I'm sure any journalist worth their salt can find dozens of these quotes from just a few years ago, if they bother to look. It's interesting how Republican philosophy changes in such stark partisan terms -- before they were for 'up or down votes,' and now we hear talk of a filibuster."


   Judicial activism is in the eye of the beholder

This is an extension of the lead-in to today's article.

"I hear a lot of Republicans talking about 'judicial activism' now, but the only thing that term actually means is 'judges doing things I don't agree with.' It is impossible to be against the concept of 'judicial activism' and support what the Supreme Court did in Bush v. Gore, for instance, since it was a clear case of judicial activism. And when judges do follow the letter of the law, but Republicans don't like it, they tend to overreact as was shown in the case of Terri Schiavo. Whenever anyone uses the term 'judicial activism' the only bias it actually shows is the bias of the person making the claim -- because they want a judge who will rule the way they want, all of the time. Which is the very definition of bias, or prejudice."


   United Nations calls for American Truth Commission

This one, obviously, only works for Democrats who support some sort of Truth Commission to look into the abuses of the last eight years.

"Philip Alston, the United Nations' special rapporteur on extrajudicial executions, wrote in a recent report that the United States has ignored, quote, possible war crimes, unquote, and raised suspicions about five detainee deaths by torture at the hands of Americans. He supports a 'national commission of inquiry' and writes in this document, quote, a refusal to look back inevitably means moving forward in blindness, unquote. I could not agree more, and call for the formation of a Truth Commission to look into this whole mess so we can move forward with eyes open, not shut."


   Give Wall Street the deal the autoworkers just got

This one has annoyed me ever since both "bailout" stories began.

"I see that GM autoworkers have agreed to the suspension of cost-of-living raises, some holiday pay, and performance bonuses in an effort to save the company. I am still waiting for the people who work at the bailed out Wall Street banks to offer the same sort of personal sacrifice, but I am not holding my breath, if you know what I mean.


   Pelosi Galore update

And finally, an update on a story from last week's talking points. It seems that the Republican National Committee has had second thoughts about their web ad which compared Nancy Pelosi to James Bond villain Pussy Galore (which, in the hands-down headline of the week, prompted Huffington Post blogger Chris Kelly to title his piece: "I Knew Pussy Galore. Pussy Galore Was a Friend of Mine. And You, Nancy Pelosi, Are No Pussy Galore"). Now, normally when political parties produce these web videos, their one hope is that it will "go viral" and not only be seen by as many people as possible as a result -- but also (importantly, when figuring advertising budgets) do so for free. Normal political ads (those on television, for instance) actually cost money to run, and even with television ads the party dearly hopes that the news people will run their ad for them (and provide the same sort of free publicity).

But this particular ad, it appears, was so embarrassing that the RNC is actually now trying to suppress it on copyright grounds. Amazing.

"You know, normally when a political video is placed on the web by a political party, they are delighted to see it go viral and appear in as many places as possible. But last week the RNC put out an ad comparing Nancy Pelosi to the James Bond character Pussy Galore, and it seems even they were (eventually) embarrassed by it. I see that they pulled the ad off their own YouTube account, and are now trying to get YouTube to delete it from other accounts as well. At least they had the good sense to be properly embarrassed, even if it did take them awhile. This just goes to show how incredibly divided the Republican Party is right now."


Chris Weigant blogs at:

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Cross-posted at: Democratic Underground