Tag Archives: Justice John Paul Stevens

Be Wary of Right Wing Charges of Liberal Judicial Activism

One of the myths fostered by the right wing is that liberal judges are activists and conservative judges are strict constructionists and only follow the law.  The right wing froths at the mouth, painting judges they don’t like as trying to write new law through their judicial decisions.  Yet as Jeffrey R Stone points out in an article in the New York Times entitled “Our Fill-in-the-Blank Constitution” conservatives are grossly misrepresenting the actions of conservative judges when the record is examined.

As Stone points out:

Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.

Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is.judicial activism

The right wing has done a good political job of framing the issue through its aggressive media advocacy to infiltrate and indoctrinate its message into the news media. The left has not been as successful.  David Brock wrote a book a few years back entitled, The Republican Noise Machine Right-Wing Media and how it Corrupts Democracy, that details how the right wing came to be adept at getting their message out.  The current manipulation of the Tea Party by Republican operatives like former House Speaker Dick Amery at Freedom Works is a current example of the resurgence of the Republican Noise Machine as a backlash against Obama.

Expect in the upcoming effort by President Obama to appoint someone to fill the US Supreme Court seat being vacated by Justice John Paul Stevens that the right wing will vigerously denounce any Obama nominee as too liberal and extreme and that the false mantra of judicial activism will be brought up with any prospective nominee  involved in decisions not supported by the right wing. Keep the Republican Noise in perspective and realize that the volume of noise by the Right Wing, including the so called Tea Party folks, in no way is a valid measure of the truth.

As Media Matters notes in an article entitled “Right-wing media demonstrate “judicial activism” by urging landmark healthcare bill be overturned by courts”,  it is the right wing that is practicing judicial activism.

A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled “conservative” were among the most frequent practitioners of at least one brand of judicial activism — the tendency to strike down statutes passed by Congress. Those most frequently labeled “liberal” were the least likely to strike down statutes passed by Congress.

A 2007 study by Cass R. Sunstein (subsequently named by President Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism — the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court’s “conservative” justices were the most likely to engage in “judicial activism” while the “liberal” justices were most likely to exercise “judicial restraint.”

Obama Needs to Appoint Another Woman to the US Supreme Court

Speculation is that 90 year old US Supreme Court Justice John Paul Stevens will retiresometime in the next few months.  This will give President Obama  a second nominee to the U S Supreme Court. The current makeup and history of the Court suggests that he should nominate another woman to fill the next vacant seat.

Last year Obama  appointed Sonia Sotomayor to replace Justice David Souter. In the Supreme Court’s 220 year history, Justice Sotomayor was only the third woman nominated and subsequently approved by the US Senate. This is despite the fact that there have been a total of 16 Chief Justices and over 100 Associate Justices since the Court began.

Justice Sandra Day O’Connor was the first woman appointed. Ronald Reagan appointed her in 1981 and she retired in 2006.  Justice Ruth Bader Ginsberg was appointed by President Clinton in 1993 and is still serving.  This brings the current Supreme Court composition to 2 women and 7 men.  Justice Ginsberg has had health problems including pancreatic cancer last year and is currently 77 years old. She has been rumored also to possibly step down soon but right now Stevens resigning is more likely in the short term.

The Wall Street Journal mentions two women as likely candidates to succeed Stevens:

“One is Mr. Obama’s solicitor general, Elena Kagan, a former dean of Harvard Law School who was considered for the nomination that ultimately went to Justice Sonia Sotomayor.

Despite her scholarly career, Ms. Kagan hasn’t produced the kind of provocative writings that could provide ammunition for conservative opponents, legal experts say.

That also dims enthusiasm for her from liberal groups, who have been hoping for a full-throated progressive ready to joust with such determined conservatives as Chief Justice Roberts and Justice Scalia.

Liberals see a surer voice in another finalist for last year’s vacancy, Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals in Chicago. On a court known for its intellectual heft, Judge Wood has proven a serious counterweight to such influential conservative judges as Richard Posner and Frank Easterbrook, legal observers say.

For the same reason, conservative activists say they are more likely to fight Judge Wood’s nomination.”

Jeffrey Tobin in an interview last month on NPR agreed regarding Kagan as a strong possibility:

” I think it’s going to be Elena Kagan, the current solicitor general and the former dean of Harvard Law School. She has a reputation as a consensus builder. She is someone who brought vigorously fighting factions at Harvard together. She worked in the Clinton administration and had good relationships with Republicans in Congress at the time. She has never been a judge, which I think is a point in her favor for Obama. There are all former judges on the court now, and I think Obama wants people of more different backgrounds. So I think she’s the likely choice.”

Given the uncertain future of Justice Ginsberg and the almost total male dominance of the Supreme Court appointees over the lifetime of the Court, it is time to balance out the Court by appointing more women.  Obama needs to appoint future Supreme Court Justices that reflect the principles he ran on and that won him election.

No matter who he nominates, it is certain that the Republicans will filibuster or stall the nomination process for any Obama Appointee.  The worst thing he could do is try to nominate someone who will appease the conservatives and further push the Supreme Court to the right. After the health care fight it is pretty obvious that Republicans will do anything they can.

Obama’s best chance to regain and strenghten public support for his Presidency is to do the right thing, rather than cater to political inaction and right wing fear mongering. Appointing another woman to the US Supreme Court is the right thing to do. It’s time to right this injustice to women who comprise one half of our nation.  A proper balance would be to have 4 or 5 women Justices on the US Supreme Court.