The sticky problem with "judicial activism"

This column originally appeared in the Williston Observer on July 23, 2009.

The sticky problem with "judicial activism"

Federal judges and justices of the Supreme Court hold a unique position in our governmental system, with special protections for their positions enumerated in Article 3 of the Constitution. Specifically, the positions are appointed; the positions are held for life; and while a judge holds a seat, their salary may not be reduced.

These three protections are notable for a few reasons. First, they tie directly to one of the complaints against the King the colonists listed in the Declaration of Independence. Second, they are designed to make the federal bench apolitical, allowing judges to focus on the law and ignore political considerations. Lastly, ironically, they make the process of confirmation particularly political.

As we saw last week with the confirmation hearings of Sonia Sotomayor, nominees come under intense scrutiny; indeed, the scrutiny is mandated by the Constitution, as part of the separation of powers. A potential justice must not only satisfy the requirements of the President but of the Senate as well.

Senators look for disqualifying comments or rulings; they dig for prejudices and bigotry; they look for indications of bad character or conduct unbecoming of a judge. Since the 1950's, Senators have looked specifically for something called "judicial activism."

Judicial activism has no concrete meaning, but it is generally taken to mean a judge who would look at cases with some specific agenda in mind. They might find more weight in an argument that appeals to their political leanings than one that appeals to the letter of the law.

That's what much of the lengthy questioning of Sotomayor was all about — an attempt to pin the "activist judge" label on her. Conservatives were gleeful when two comments by Sotomayor, in particular, came to light. The first was her now infamous "wise Latina" comment; the other was a comment where Sotomayor acknowledged a truism: that it is in the courts "where policy is made."

To her first comment, Sotomayor's backers pointed out that the comment, in context, is far less onerous than it has been made out to be. Sotomayor herself said that she made a poor choice of words, and that the comment was not meant to say that her life experiences made her a better judge than someone with different experiences.

What does this have to do with judicial activism? The message Republicans were trying to convey is that Sotomayor would go into the job thinking that her background gave her a better perspective on some cases than the experiences of the men on the Court, a perspective that would allow her to see a different side to a case, a side that was not in line with the law. And it is the law, after all, that judges are sworn to uphold.

Sotomayor's response was basically this: she believes the law to be paramount, her comments and various interpretations of those comments notwithstanding. In my opinion, without a smoking gun to contradict her, she must be taken at her word on this point, as much as any person would be.

To her second comment, I noted that the "policy" statement is a truism. That may make some cringe, but it is reality. The legislative branch makes laws; the executive branch puts procedures in place to implement the laws; and the judiciary interprets the laws. Often, in the interpretation, policy is made.

Jeffrey Segal, of Stony Brook University, gave a perfect example: recently, the Supreme Court ruled that a school official could be sued for having a strip search conducted on a 13-year-old girl believed to be carrying contraband ibuprofen. This is now a policy of the United States, a policy that is not found in the US Code and not in the Federal Register, but a policy nonetheless. When the law and procedures are unclear, it is the courts that set policy.

This is not a liberal or conservative issue — it is simply a fact.

Looking for activist judges is a good thing. We do not want judges with an agenda sitting on the bench, especially the federal bench. The problem is in the widening definition of what it means to be activist. So long as only a few partisan Senators carry the banner ad nauseum, the process is safe. Congress must ensure that judges will not overstep their bounds. We, however, must ensure the in that quest, Congress does not overstep its own bounds.

Death throes of the GOP

This column originally appeared in the Williston Observer on July 9, 2009.

Death throes of the GOP

As Mark Twain is famous for saying, "The report of my death was an exaggeration." So it may be for the reports of the death of the Republican Party. There are plenty of signs of potentially terminal illness, however.

From the outset, let me make it clear that I am well aware of the Democratic Party's rogues gallery. Just to name a few, in chronological order: Gary Hart, Dan Rostenkowski, Bill Clinton, Gary Condit, William Jefferson, Eliot Spitzer, and Rod Blagojevich.

This rogues gallery was populated over the course of two decades, and it is nothing to be proud of. From marital infidelities to outright graft and bribery, some of the violations were of trust and others of the law; prices were paid, political, personal, and legal.

The Republican Party, a party usually noted for its toeing of the "family values" line, is not the first place one would think to look to find infidelities, improprieties, political cowardice, and outright craziness. But in just the past couple of years, indeed the past couple of months, plenty of examples have sunk to the bottom of the swamp.

I mention older cases by name only — you can look each of them up on the Internet to get the sordid details: Senator Larry Craig of Idaho, Representative Mark Foley of Florida, Senator David Vitter of Louisiana, Nevada Governor Jim Gibbons, and New York Representative Vito Fossella.

More recently, the fourth-ranked Republican in the Senate, John Ensign of Nevada, announced in June that from December 2007 to August 2008, he had been engaged in an extra-marital affair. Ensign, who is active in the ironically-named Promise Keepers, stepped down from his leadership post on the Republican Policy Committee. Ensign's wife Darlene said that she and Ensign were working on a reconciliation. Perhaps she should forego getting him to promise, and put him on a leash instead.

Just two weeks ago, a name mentioned frequently as a 2012 presidential hopeful, Governor Mark Sanford of South Carolina, was mixed up in a bizarre adultery scandal. Sanford, who ran some of his last campaign on a family values platform, has been keeping a mistress in Argentina since 2008. The affair cost Sanford his job as head of the Republican Governor's Association and some cash (as he reimbursed the state for some expenses incurred during one of his trysts). Still unsure are his job as governor, his marriage, and any hope of a run in 2012.

Minnesota Representative Michele Bachmann has developed a penchant for her idiotic utterances, including her seditious call for Minnesotans to become "armed and dangerous" to fight President Barack Obama's plan to limit greenhouse gases. Her latest craziness involves the decennial census. She vows to only answer the question about how many people live in her home, because the Constitution does not authorize any other questions. What Bachmann fails to recognize is that the Congress has the power to ask any demographic question it needs to help set policy. Even the first census in 1790 collected more data than a straight count, and Congress has authorized a $100 fine for failing to complete the census forms.

Bachmann also has said she fears the census data will be used when the government decides to begin to intern citizens in concentration camps. The foundation of concentration camps is a favorite lark of the extreme right, one that any person of sound mind dismisses out of hand.

Finally, just last week we heard of a fine example of political cowardice. Alaska Governor Sarah Palin, formerly John McCain's Vice Presidential candidate, announced that she is not going to finish out her term as governor; she will resign at the end of July. Palin's ambition to be the Republican nominee for President in 2012 is widely reported, and some say that she is quitting to concentrate on that run. Palin herself said that with her decision not to run for governor again in 2010, she did not want to be a lame duck for eighteen months. Imagine the precedent she could be setting — aside from cowardly, this could even be considered Bachmann-crazy.

The Republican Party is not dead yet, but it seems to be ill. As a liberal, I watch it all with a healthy dose of schadenfreude, hoping for the time being that their weakness can add to our strength, helping the Congress and the President actually get some good things done.

Note: the original printing of this column noted a $5000 fine for failing to answer questions on the census. This is incorrect. The fine for failing to answer is $100; the fine for providing false answers is $500.