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Judicial Activism and the Nuclear Option

By TChris, Section Judiciary
Posted on Tue May 17, 2005 at 10:57:42 AM EST
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by TChris

The same Senate Republicans who decry "judicial activism" want to end the ability to filibuster judicial nominations. Writing in Mother Jones, Bradford Plumer makes the interesting point that the filibuster saves courts from judicial activists.

The strongest argument for the judicial filibuster is that it forces presidents to pick moderate judges. Recall that Bill Clinton, faced with a hostile Republican Congress that had already scuttled many of his judicial picks, decided to play it safe with his Supreme Court picks and went with Ruth Bader Ginsburg and Stephen Breyer. ... According to a study by former Solicitor General Seth Waxman, if one defines "judicial activism" as a willingness to strike down state and federal laws, then Ginsburg and Breyer are in fact the two most restrained justices on the court. If you don't like activist judges, the case for the judicial filibuster seems strong.

In fact, Republicans favor judicial activism. They want judges who will actively disregard the Bill of Rights and civil rights laws in favor of the religious right's agenda. Indeed, one of the judicial nominees whose consideration may trigger the nuclear option is an unabashed judicial activist.

Janice Rogers Brown of the California Supreme Court, has long declared her contempt for judicial precedent, notably writing in one opinion, "If our hands really are tied, it behooves us to gnaw through the ropes."

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    Judicial Activism and the Nuclear Option | 16 comments (16 topical)
    Re: Judicial Activism and the Nuclear Option (none / 0) (#1)
    by The Heretik on Sat Dec 17, 2005 at 12:59:09 PM EST
    Just linked to you on update at Armageddon on the Potomac Plus Reid's latest statement on Frist.

    Re: Judicial Activism and the Nuclear Option (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:09 PM EST
    I think as a general matter they want judges who rule on the law, not their own subjective opinions. Judges who respect their role as judges and do not imagine themselves to be legislators. The antithesis of the "emanations and penumbras" crowd.

    Re: Judicial Activism and the Nuclear Option (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:09 PM EST
    he has said his opinion referred to another dissent. assume this is wrong and he is being a weasel-you should have no problem with a judge mistaking and substituting her beliefs for the law. oh, wait, you might not agree with her personal beliefs, so this is "bad activism". you still can't get your mind around the fact that a living constitution really means nothing.

    Re: Judicial Activism and the Nuclear Option (none / 0) (#5)
    by soccerdad on Sat Dec 17, 2005 at 12:59:09 PM EST
    This is simply another step in the quest for absolute power by the executive branch, plain and simple. The Rethugs want their activist judges and they want to crush any checks and balances. The only thing standing in the way is the judical system given that Congress andthe Media have given up their role in providing checks on a runaway executive branch. Everyone should pay close attention since its been since the 1930's since a political party of a Western power has seized control of all governmental functions for the sake of pushing through their agenda. Its a chance to witness first hand the rise of a fascist state. The only thing preventing the complete transformation is that there are enough congressmen who oppose some of the loss of freedoms in the US. Of course there is always the tactic of appending legislation to bills and given one or two more election cyles the transformation will be complete.

    Re: Judicial Activism and the Nuclear Option (none / 0) (#6)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:09 PM EST
    what freedoms are you lacking? Where are these fascist out attacking the citizenry? Where are the brownshirts(other than in your imagination)? I think you have to create the demons to make yourself feel heroic.

    Re: Judicial Activism and the Nuclear Option (none / 0) (#7)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:10 PM EST
    Hmmm. If soccerdad's "creation of demons" makes him feel heroic, I now understand exactly what members of the 101'st keyboarder division like yourself get out of constant trolling. It must make you feel the same way, holding the line again' them godlezz libr'l heathens.... Thanks for the insight, Ed.

    Re: Judicial Activism and the Nuclear Option (none / 0) (#8)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:10 PM EST
    "Judges who respect their role as judges and do not imagine themselves to be legislators." Ed, the idea that law-making is the exclusive province of the Legislature is contrary to about 1500 years of Anglo-American precedent. The Common Law=--law formed by judcial precedent rather than legislation, was regarded by most Americans in the time of the Founding Fathers as one of the bulwarks of liberty . . . But you knew that, didn't you?

    Re: Judicial Activism and the Nuclear Option (none / 0) (#9)
    by soccerdad on Sat Dec 17, 2005 at 12:59:10 PM EST
    As a point of fact, I feel anything but heroic. In fact I fell rather helpless as the slow but sure march to a fascist theocracy unfolds before our very eyes. The brownshirts are still organizing but you see them trying redefine science in Kansas and install ID, you see them at NIH trying to control our lives so as to conform to a narrow view of christianity (small c is on purpose). You see them as they attack the media as being to liberal or biased yet remain silent when the admin makes up the news and has it brodcast, you see them as they incararate american citizens without allowing them access to a lawyer. This kind of change doesn't happen over night especially with regards to loss of freedoms here at home, its slow but steady accepted by the sheep as a reaction to their state induced fear [this group choose terrorism]. Then after a number of years you no longer recognize your country. As it has been with the rise of other fascist states the judical system is the only roadblock and when that is removed by either outright replacement or by packing it with unqualified extremists the leaders are then unconstrained to impose their view and punish those who disagree. I know everyone thinks this is paranoid, but maybe you need to study more.

    Re: Judicial Activism and the Nuclear Option (none / 0) (#10)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:10 PM EST
    what you describe as the attack on freedoms is actually just disagreement with you. "godless liberal heathens"? No-just drama queens that are fun to argue with. You tell me-under the anglo-american tradition is the role of judges to create the law with no authority (to make things up, if you will). you know the answer to that, don't you?

    Re: Judicial Activism and the Nuclear Option (none / 0) (#12)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:11 PM EST
    I agree with SD. The brownshirts are on the march. I can't figure out what we can do to stop the march. The gerrymandering and control of voting machines, access to ability to vote and have your vote counted, I don't know how the American people can turn this around. A takeover of the judiciary branch will make the revolution complete. Is there a reason why we talklefters need to hear more than 4 posts per day from Ed? If we want to hear his spiel, we can always turn on Rush or Fox News. Who needs that stupidity here?

    Re: Judicial Activism and the Nuclear Option (none / 0) (#13)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:11 PM EST
    I don't know CA. Seeing certain trolls rants around here do a wonderful job illustrating what's wrong with the RWNJ's. OF course, to me, any ideological extremist is equally idiotic. At the same time, it's likely balanced by some of the resident LWNJ's. Just my opinion.

    Re: Judicial Activism and the Nuclear Option (none / 0) (#15)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:11 PM EST
    Whatever happened to ol' Ace, anyways? One does miss intelligent views from the right... [Ed. Apparently he wanted to stay anonymous - he hasn't registered to leave comments.]

    Re: Judicial Activism and the Nuclear Option (none / 0) (#16)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:11 PM EST
    BTW, Blaghdaddy is proud to announce that he had his first "hate-spam" attack today...anyone know anything about that, Ed or PPJ? Seriously, does that mean Blagh is getting some attention from the right?

    Re: Judicial Activism and the Nuclear Option (none / 0) (#17)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:11 PM EST
    This commenter is limited to four comments a day. See comment policy for chatterers. Future name-calling will result in him being banned.

    Re: Judicial Activism and the Nuclear Option (none / 0) (#18)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:11 PM EST
    Did Blagh say "the right" or "the gov't," Ed? As for drama queens, check out your heroes on Capitol Hill...it ain't the Democrats jumping up and down... And Ed's right, folks...the left has "so much reason" to hate Blagh, right? MAYBE the hate spam is just Blagh's opinion!!!!

    Re: Judicial Activism and the Nuclear Option (none / 0) (#19)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:11 PM EST
    no one hates you. you are a Republican's best friend. the more your views are out there, the more elections they win. you probably should not mistake the amen chorus you receive here for mainstream approval.

    Judicial Activism and the Nuclear Option | 16 comments (16 topical)