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Politics : Politics for Pros- moderated -- Ignore unavailable to you. Want to Upgrade?

To: Lane3 who wrote (86223)	11/15/2004 10:23:02 PM
From: TimF	Read Replies (1) \| Respond to of 793841

What does President Bush mean, if anything, when he says that his kind of judge "knows the difference between personal opinion and the strict interpretation of the law"? Taken literally, this simply means he wants judges who agree with him. Every judge sincerely believes that he or she is interpreting the law properly. Almost every judge may feel he or she is interpreting the law properly, but they may not feel they are interpreting the law according to the law itself. Some decisions don't even deal with the law but mention how society has evolved, or use some other standard rather than the law itself. Liberal judicial activism peaked with Roe v. Wade, the 1973 abortion decision, and has been in retreat for longer than it lasted. In some ways it has been in retreat but only from so grand of position as being able to decide Roe vs. Wade the way it was decided. It is still a powerful force. And let's not forget that the Bush administration owes its very existence to the boldest act of judicial activism in a generation If that was judicial activism, I don't think it could reasonably be called the most bold act of judicial activism in a generation. There are other ways the court could have decided the case which would have been less activist, and also I think the federal supreme court was responding to the state supreme courts activism, but yes the way the decision was made was sort of "activist. I think there is cause for the decision to be controversial but I don't think its one of the great judicial activist cases of our times. Republicans cheer, for example, when courts overturn state or federal -- or even private -- affirmative action programs and they boo when such programs are allowed to continue unmolested. They have great hopes -- largely unrealized, so far -- for the "takings" clause of the Fifth Amendment as a tool for overturning environmental regulations or any other government policies that might reduce the value of someone's property. Those cases are only activism in the sense that they are different then the status quo. Affirmative action is in many ways against the Civil Rights Act of 1964. I personally would think it within the rights of individuals or private organizations to run such a scheme. I don't think overturning private affirmative action has really happened much. The takings clause of the firth amendment is a little less clear but its far less of a leap to say that regulation that destroys 90% of a property's value is taking it, than the right to privacy is. There is even a move afoot in the Senate to have Democratic filibusters against Bush's judicial nominees ruled unconstitutional. That would be activism squared. I agree with Kinsley here. I can't think of any constitutional grounds for such a ruling. One person's constitutional interpretation is another person's judicial rampage. That is true in the general sense but I don't think that means that all sides are equally to blame. But has anybody read the 2004 Republican platform on abortion? It doesn't merely call for reversal of Roe v. Wade. It calls for "legislation to make it clear that the 14th Amendment's protections apply to unborn children," and for judges who believe likewise. If fetuses are "persons" under the 14th Amendment, which guarantees all persons "equal protection of the law," abortion will be illegal whether a state or Congress wants to legalize it or not. More than that: There could be no legal distinction between the rights of fetuses and the rights of human beings after birth. So, just for example, a woman who procured an abortion would have to be prosecuted as if she had hired a gunman to murder her child. A determination that a fetus was a human person under the law, would not be judicial activism in the ordinary sense. It wouldn't be twisting the law around to serve a certain viewpoint. It would instead be applying a controversial point of view on a matter of stipulated fact to existing solid law. It could be considered activist in the more general sense of the term if it imposed this opinion of fact in to the legal system while a majority oppose it but it wouldn't be conventional judicial activism. In any case its very unlikely that Roe vs. Wade will be overturned despite its shortcomings. If it is overturned than the states would determine the legality of abortion, which is not entirely unreasonable considering abortion (or even privacy in the sense that applies to abortion) isn't even mentioned in the constitution. The right can be activist as well, and sometimes it takes the form of judicial activism, but most often it takes the form of laws (some of which are struck down by courts), or calls for constitutional amendments. Tim