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Specter: CJ Rehnquist Is a Judicial Activist

By TChris, Section John Roberts
Posted on Tue Aug 09, 2005 at 02:00:00 PM EST
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by TChris

Update: Attacks on the Supreme Court by politicians who disagree with the Court's rulings threaten the Court's independence, Justice Breyer said today. If Arlen Specter wants to use the Roberts' nomination to send the Court a message, it seems Justice Breyer is taking the opportunity to send a message on behalf of "seven or eight or nine members of the Supreme Court." The message, in essence: leave us alone.

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Original post:

It’s funny that a Republican senator would accuse conservative Supreme Court justices of judicial activism, but Arlen Specter, previewing some of the questions he intends to pose to John Roberts, seems to have done just that.

Sen. Arlen Specter, R-Pa., advised Roberts in a letter that he would question the nominee on his thoughts about the court's attitude toward Congress and on two cases in which the court limited Congress' lawmaking ability. … Specter called the limiting of Congress' authority "the hallmark agenda of the judicial activism of the Rehnquist Court."

The cases in question – United States v. Lopez and United States v. Morrison – concluded that legislation enacted pursuant to the Commerce Clause was so tangential to interstate commerce that Congress lacked the authority to create it. The majority in both 5-4 decisions: Rehnquist, O'Connor, Scalia, Kennedy, and Thomas.

Will Roberts assure Specter that he won’t be a disrespectful judicial activist like those rogue Supreme Court justices, Scalia, Thomas, and Rehnquist? Can Republicans even agree on a definition of judicial activism? Does the phrase simply refer to judges who actively discharge their responsibility to decide whether enacted legislation is constitutional?

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    Specter: CJ Rehnquist Is a Judicial Activist | 5 comments (5 topical)
    Re: Specter: CJ Rehnquist Is a Judicial Activist (none / 0) (#1)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:07 PM EST
    I expect Specter to pitch a few sliders in a basically Hatch-like soft lob so Roberts can hit their homeruns to please the GOP caucus. Where was Specter during the fracus over unilateral ending of the cloture rule by Frist and Cheney. It would be nice if he would exit blazing; Specter certainly knows what has been at risk for this Congress. I would anticipate his finding the bulk of Roberts' opinions aligned with his own, and expect him to vote to recommend. It will be fun to see how Specter handles the ABA recommendation if that happens to fall on the other side of the recommendation scale, although there must be tremendous pressure upon ABA now to rank Roberts as Very Qualified, even though ABA was excluded from its heretofore traditional pre-nomination role since 2002. Perhaps at that juncture some of the 15 ABA committee people screening Roberts will issue a minority report; then we will see just how anti-Roberts Specter is. Roberts' approach is stealth whittling away at freedoms, never a direct confrontation. He works process to nudge caselaw rightward; it is a longterm view, and insidious. We need some tough questioning of this nominee.

    Re: Specter: CJ Rehnquist Is a Judicial Activist (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:07 PM EST
    I think "judicial activism" is (mis)used by both parties when a judge makes a decision they don't like. Name-calling is just too easy: witness how "conservative" and "liberal" have become dirty words. :/ At the same time, I do think the phrase has meaning. To me, it means a judge who steps beyond interpreting the Constitution and the laws and ventures into the realm of deciding policy, something that belongs to the elected branchs of government. From what you describe of the two cases, I'd say the Court was filling a "judicial restraint" role by deciding that Congress had overstepped its bounds. Specter, as usual, was full of hooey. :) Nice blog, btw. I found it via The Captain's Quarters.

    Re: Specter: CJ Rehnquist Is a Judicial Activist (none / 0) (#3)
    by swingvote on Sat Dec 17, 2005 at 01:02:07 PM EST
    Arlen should try reading the 10th Amendment again. He clearly has forgotten it even exists.

    Re: Specter: CJ Rehnquist Is a Judicial Activist (none / 0) (#4)
    by Che's Lounge on Sat Dec 17, 2005 at 01:02:08 PM EST
    What world does the ABA live in when they rate such an inexperienced jurist as "very qualified"?

    Re: Specter: CJ Rehnquist Is a Judicial Activist (none / 0) (#5)
    by swingvote on Sat Dec 17, 2005 at 01:02:08 PM EST
    The Commerce Clause, as written by the founding fathers: "[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" The Commerce Clause, as read by Arlen Specter: [The Congress shall have Power] To regulate all activities which bear, in any conceivable way, on Commerce among the several states. Before we applaud Senator Specter, we might want to consider where his interpretation of the Commerce Clause can lead. Abortion affects interstate commerce, in that every abortion performed undeniably reduces the market for interstate commerce. Abortion is therefore open to regulation under the commerce clause. Speech affects interstate commerce, as advertising products, protesting companies, and word of mouth all undeniably affect the sale of products and services across state lines. Speech is therefore open to regulation under the commerce clause. Sex affects interstate commerce, as procreation and the continuation of the species provides the market upon which interstate commerce is based. Sex is therefore open to regulation under the commerce clause. Religion affects interstate commerce, as the market in religious ornaments, apparel, and texts adequately proves. Religion is therefore open to regulation under the commerce clause. I could go on, but I think you get the idea.

    Specter: CJ Rehnquist Is a Judicial Activist | 5 comments (5 topical)