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.

A Historical Look at the Fourth of July

This column originally appeared in the Williston Observer on June 25, 2009.

A Historical Look at the Fourth of July

As a young boy, I remember quite well the trips that I, my siblings, and cousins would all take to the fireworks stands that sprouted up all around Los Angeles and Orange counties, California in late June. July 4 was not only a celebration of our nation's birth, but of my grandfather's, too. We would buy some fireworks to celebrate each. On the night of the Fourth, the entire block would close down as families set off all sorts of pyrotechnics to honor the nation and my grandfather.

As an early teen, my family celebrated a private July 4. We lived in Canada, and the big July celebration there, July 1, is for Canada Day. Since we lived in Quebec, the Canada Day celebrations were a bit ironic, since Quebec seemed poised to secede from Canada.

As a full-fledged grown-up, I gained distinct and fond memories of my first Fourth of July in Williston. We came here from Starksboro, a town too small for any extensive July 4 celebrations. Coming to Williston, with its magnificent parade, day-long family activities, cacophonous book sale, and glorious fireworks show, I suddenly had something to look forward to, like those youthful days in California.

It's worth taking a few moments to remember what the fuss is all about, and to realize that if not for the work of some very dedicated men, we might not be celebrating at all. In early 1776, the case for independence had not yet been forcefully made. Compromise with Britain, and seats in Parliament, were seen by many as the better way to go.

A relatively short pamphlet, Common Sense by Thomas Paine, finally made a convincing argument for independence, and the opinion of the populace and the Congress began to change.

On June 7, 1776, Richard Henry Lee, delegate from Virginia, formally brought the arguments in Common Sense to the Second Continental Congress. He proposed both a declaration of independence and a union of the colonies. A committee was formed to craft a document. The committee included Thomas Jefferson, John Adams, and Benjamin Franklin. Jefferson was assigned by the committee to write the declaration, which he completed in just a few days.

Jefferson's first draft was edited by Franklin, then forwarded on to the Congress, which toned down some of Jefferson's most inflammatory language. In the end, the Declaration of Independence listed almost thirty grievances against the King, called for independence and unification, and told the people of Britain that the quarrel of the United States was with the King, and not with them.

The document was accepted by the Congress on July 4, 1776, though not until August 2, 1776, was the Declaration was actually signed.

Though the new United States was still at war in 1777, history records several small-scale celebrations to celebrate the first anniversary, including several 13-gun salutes. In Philadelphia, official dinners and celebrations were held along with prayers, parades, and fireworks. In 1778, General George Washington ordered a double ration of run for the troops.

By the turn of the 19th century, fireworks were becoming more and more common, as were formal celebrations of the day at the White House. Parades, military revues, bands, songs, plays, poems, anthems, and ballet were all performed to celebrate the date.

In 1870, July 4 was designated a day off, without pay, for federal workers; in 1938, the law was changed to give the day off with pay. In 1998, Congress designated the days between Flag Day and Independence Day as "Honor America Days."

Many notable events have been scheduled to happen on July 4, including temperance and anti-slavery speeches, the laying of cornerstones (of the Washington Monument, for one), and the christening of ships. In recent memory, the July 4's of 1976, the nation's bicentennial year, and 2002, the first following the September 11 attacks, were notable for the proud displays of patriotism from the citizenry.

The Fourth of July is a uniquely American holiday, and we celebrate it in a uniquely American way. At some point before the holiday, to celebrate the two hundred and thirty-third year of the American Republic, take a few minutes and read the Declaration of Independence; refresh your memory about what the fireworks, barbecue, and camaraderie are all about.

The Importance of Self-Editing

This column originally appeared in the Williston Observer on June 11, 2009.

The Importance of Self-Editing

When you're writing for yourself, as in a diary, there's little need to be careful about how you write or even what you write. You can make up facts, twist reality, leave out inconvenient truths.

When you read your diary back to yourself, you do not edit it. In fact, if you edit your diary, correcting for misstatements, you might lose something valuable -- how you were feeling at the moment you put those thoughts down.

Similarly, fiction is, by definition, one big, long lie. I recently wrote a short story that is based on a trip I recently took to Hershey, Pennsylvania. Aside from the fact of the trip itself, however, none of the events in the story actually happened to me.

When you read back a piece of fiction, you will notice inconsistencies that need to be corrected, lest you jar your reader with them. But you generally don't correct misstatements, because the entire thing is a misstatement.

When you're writing "the news," though, you have an entirely different set of rules to live by. The writer is responsible for telling a compelling story, but more than that, the story must be true, it must be accurate.

If you write, you might find, as I do, that you fall in love with your words, that you come to see them as little children. You don't want to cut any of them -- you lose your objectivity.

When I was a reporter back in college, I developed quite a love/hate relationship with my editors. They would take my stories and rearrange, reword, cut. I hated each revision, dreaded seeing the edited copy. But, invariably, my story was better because of the editing.

Later in my college career, I became the editor, and my hope was that when I rearranged, reworded, and cut, I was doing my writers a favor, making the stories tighter, more readable. But even then, when I wrote hard news, I insisted that someone, anyone, edit my stories. The story, the integrity of the words, was more important than the writer.

Had I not been in love with my words, I would have been able to self-edit. But with my objectivity gone, it took a disinterested third party to keep me, and my words, honest. It is this love of ones own words that seems to be dampening the self-editing skills of the famous right-of-center commentators.

Talk-show host Rush Limbaugh, touted by both the left and right (and by himself) as the de facto leader of the Republican Party, has repeatedly, unabashedly, and unashamedly spread half-truths, innuendo, and outright falsehoods. Senator-elect Al Franken went so far as to write a book, with Limbaugh as a prime example, called "Lies and the Lying Liars Who Tell Them".

Fox News Commentator Bill O'Reilly repeatedly called Dr. George Tiller a "baby killer" and equated him with Hitler, Mao, and Stalin. After Tiller was gunned down in his Kansas church, several right-wing websites repeated O'Reilly's rhetoric as they applauded and justified Tiller's death. O'Reilly half-heartedly decried the killing, but we are not fooled.

Most recently, the right's attack machine has been twisting a comment by Associate Justice-designate Sonia Sotomayor about the ability of a female Hispanic to render neutral judgement. They all came to the intellectually dishonest conclusion that she is a "racist." The futile attack was levelled by Newt Gingrich, Glenn Beck, Charles Krauthammer, Ann Coulter, Tucker Carlson, and, of course, Rush Limbaugh.

Some of these personalities, after taking a step back, decided the rhetoric was over the top. Gingrich, for example, apologized for using the term. Republican Senator Jeff Sessions called for an end to the name-calling.

I understand how hard it is to self-edit -- it's even harder when your words are spoken than when they are written. I also understand that for these commentators, it is a part of their job to be loud, brash, and controversial. But with their wide following, self-editing is a skill they would do well to hone.