Posted on 07/10/2005 5:25:52 AM PDT by madprof98
Conservative judges, those more likely to overturn laws, not what country needs
With the retirement of Supreme Court Justice Sandra Day O'Connor, and the expected retirement of Chief Justice William Rehnquist, a court that has been unchanged since 1994 is about to take on a very different look.
But it's not going to happen without a fight. The conservative movement that has taken control of the Republican Party — and with it the legislative and executive branches — now sees its opportunity to remake the Supreme Court as well, clearing the last obstacle to the revolution it seeks to create in American government and culture.
To justify that makeoverof the court, Republican activists have spun out an elaborate indictment of the current system, repeating it endlessly until it has taken on the aura of absolute truth in some corners. For instance, much of the rhetoric coming from House Majority Leader Tom DeLay, Senate Majority Leader Bill Frist and other Republican leaders has focused on what they call "judicial activism," judges who in their minds have been overly eager to impose their own personal beliefs on the political system.
Recently, two legal analysts based at Yale University decided to see if that claim had any validity. And since "judicial activism" tends to be one of those things that vary depending on the eye of the beholder, Paul Gewirtz and Chad Golder first needed to define the phenomenon.
The essence of judicial activism, they decided, was the act of overruling laws that had been passed by Congress. That is, after all, the ultimate use of a judge's power, the case in which the judiciary most directly substitutes its own judgment for those of elected officials. The judges who do that most often ought to be the judges that have so enraged the political right, which has complained repeatedly about the arrogance of an unelected judiciary, the so-called "dictators in robes."
Gewirtz and Golder then looked at all 64 cases since 1994 in which the court was asked to overturn acts of Congress as unconstitutional. In an article published last week in The New York Times, they revealed which justices have been most likely to legislate from the bench, as conservatives like to put it, instead of leaving the job to those who are elected to legislate.
The most activist justice on the bench? Conservative darling Clarence Thomas, who voted to overturn the decision of Congress almost 66 percent of the time.
The relatively liberal Stephen Breyer, appointed by Bill Clinton, was the least activist, voting to overrule Congress in barely 28 percent of the cases to come before the court. In fact, the four most activist justices turned out to be the four most conservative justices — Thomas, Anthony Kennedy, Antonin Scalia and William Rehnquist, in order.
In other words, if President Bush is sincere in saying that he doesn't want judges legislating from the bench, he ought to appoint a liberal. Ironically, the deepest fear of the conservative movement is that Bush may do just that, even if accidentally.
After all, seven of the nine current justices were appointed by Republican presidents, yet most of those seven are now considered little better than traitors to the conservative cause. Advocates on the right believe that GOP appointees O'Connor, Kennedy, David Souter and John Paul Stevens were either stealth liberals all along or have abandoned their conservative roots, falling prey to some mysterious malady that makes people more liberal once they don a justice's robe.
There's a more likely explanation, however. The justices in question have probably not changed much in their basic philosophy over the years. Instead, what has changed is the range of thought that the right wing now considers legitimately conservative. These days, anybody who questions the goals of the Republican revolution or the methods used to advance it is by definition not conservative.
For example, the libertarian wing of the Republican Party that produced O'Connor, and that largely distrusted government power over private lives, has gone silent. It is no longer conservative to believe that government shouldn't try to regulate private behavior, so O'Connor is no longer conservative. She didn't change; her party did.
Bush now has some important decisions to make, for his party and for the country. If he nominates truly activist judges along the lines of Thomas and Scalia, whom he has held up as models of a Supreme Court justice, he can indeed make the court a friendlier place for the conservative movement, but he will also touch off a bitter political battle not just in Washington but across the country.
In the short term, Bush has the political weapons to win that fight. But long term, the consequences for his party would be substantial, because the goals of the conservative movement that now dominates the GOP are not the goals of the American people as a whole.
For example, the GOP's main goal in creating a sternly conservative court is to overturn the Roe v. Wade decision on abortion. That is the core issue in Republican politics today, the single issue that most accurately defines a conservative.
Yet in two recent nonpartisan polls, only 30 percent of Americans said they wanted a Supreme Court that would overturn Roe v. Wade. Strong majorities — 63 percent in one poll, 65 percent in the other — would oppose such a court.
Again, Bush holds the levers of power. If he wishes, he has the ability to placate the consensus within his own party for revolutionary change, even if it by doing so he defies the consensus of the American people.
It will be fascinating to see if the opposite is true, if he has the power to defy the narrow interests of his party while serving the broader interest of the country.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
They hate Common Sense, don't they.
I think this kind of thinking has a chance of prevailing. First they come up with a position that is incomprehensible. Then they get a lot of people to say, "The author is a genius."
Before you know it, a lot of people are going to agree because they all want to be a genius. It is the phenomena that creates "art fads" out of toilet paper paper maché sculptures.
Gewirtz and Golder are wrong. Judicial activism is more about creating law from the bench than overturning congressional legislation that is unconstitutional.
Hate powered Cindy has done it again.
Article states, Again, Bush holds the levers of power. If he wishes, he has the ability to placate the consensus within his own party for revolutionary change, even if it by doing so he defies the consensus of the American people."
Don't they get it??? The concensus of the American people is what put Bush in office so that he CAN turn the liberal policies around. The Dems still think that Bush winning twice is a fluke and that most Americans are against him and against conservative policies.
The author has a point, though. If we set up the Supreme Court with the single goal of overturning Roe, we *are* creating an activist supreme court, just an extreme-conservative one instead of an extreme-liberal one.
I'm no liberal, and no fan of abortion, but we need to calm down on the anti-Roe rhetoric, or this whole USSC thing is going to backfire on us majorly. I see far too many people, even on this site, who are more concerned with getting pro-life judges on the court than pro-constitution. Granted, the two may end up being one and the same, but why are we talking more heatedly about abortion than we are about keeping the Constitution *as a whole* intact, free of the destruction liberalism will bring to it? We need to free ourselves of a little case of tunnel-vision here.
(paraphrased)Cynthia, you ignorant slut...
"More likely to overturn laws?" Like the way the 9th Circus overturned a number of laws passed by the people of CA?
Or do you see the job of the judiciary to be MAKING LAWS, and if they don't do that, you equate that with them overturning laws?
I hope Neal Boortz rips her a new one on this editorial... The woman's both a hardcore socialist and a ninny!
Mark
Unless it's the consensus of the "people" that such a law be revoked. You seem to forget the power of the USA lies with it's people, not judges or politicians.
However, Liberals in general seem to think the power should lie with them, because they "know" what's best...IMHO, they have yet to prove it...as they fall flat on their faces with each effort.
The ONLY true proof lately has been with the POTUS and his cabinet.
I was going to post the same thing. They really are clueless.
"Conservative judges, those more likely to overturn laws, not what country needs"
Slavery was a good thing?
The truth is though, I'm not entirely convinced that we're a majority. A lot of people think that abortion was what put Bush back in office, and maybe it contributed. But I don't think that all 51% of the people who voted for George Bush were all anti-Roe. If we're serious about doing what the majority of the *American people* want about the issue of abortion, then it should be a public ballot, NOT a Supreme Court case.
I'd rather see the Supreme Court go after the income tax, but we all know that's not going to happen.
Irrational law is like the mind turning on itself, much like Cynthia Tucker's mind.
The libs can cry and fuss all they want, but Roe will be history, and the murders of babies will no longer be legal in just a few short years! Victory at last!
You really don't get it. Even if 100% of the voters agreed in a public referendum to criminalize some or all abortions, it would not be LEGAL to do so. The imperial court has so ruled. That's why abortion-on-demand is the one and only great human right that Cynthia Tucker and her godless buddies cite in editorials like this one. It's all they really care about, since it is so important to them both in itself and for what it shows about the power of the elites to lord it over the people.
"For example, the libertarian wing of the Republican Party that produced O'Connor, and that largely distrusted government power over private lives, has gone silent. It is no longer conservative to believe that government shouldn't try to regulate private behavior, so O'Connor is no longer conservative. She didn't change; her party did."
You don't have to concern yourself with the author's point--when they call Sandy Baby 'libertarian' you know they're off the deep end. This is just more grade-A b.s. O'Connor hasn't been concerned with liberty since she started ruling on religious freedom back with Lynch. Since then she's been Little Miss Balancing Test on every topic under the sun. No guts, the perfect affirmative action politico.
I understand your point a little clearer now. Quite honestly, I'm just worried about us one day becoming the enemy we fight, but I don't believe the majority of us are that narrow-minded, and I apologize for using a broader brush than I should have. But you're right, we need a court that will restore the law of the land to the U.S. Constitution, and not the phony list of "Guaranteed Rights" like welfare, abortion, drugs, etc. that liberal judges over the years have amassed. After that, then we can work on solving the abortion debate the right way: majority rules.
The only "unalienable rights" we have are in the Bill of Rights. Everything else is up to the people, not the judges.
As much as I agree that it's distressing how many Republicans have abandoned the idea of Reagan-style deregulation (although to this author, it's more a sense of glee for her), to call O'Connor a libertarian is laughable.
"If we're serious about doing what the majority of the *American people* want about the issue of abortion, then it should be a public ballot, NOT a Supreme Court case."
Now THAT statement is kinda silly. If we're serious about doing what the majority of the people want, Roe MUST be reversed. The only vote on abortion that counts right now is the 9 old coots in robes. And I don't care what the court says the 'majority of people want.' I care what the Founders had in mind when they divided powers between the states and the feds, and the feds have grabbed way too much power in Roe and its precedents.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.