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The other filibuster
TownHall.com ^ | 3/12/03 | Thomas Sowell

Posted on 03/11/2003 11:38:50 PM PST by kattracks

While Senate Democrats are filibustering against the nomination of Miguel Estrada to the federal appeals court, liberals in the media are filibustering against conservative judges in general. The hallmark of these liberal media filibusters is that they can find little or nothing specific to criticize about how the judges have interpreted the laws, so the critics resort to rhetoric, confusion and guilt by association.

A classic of this genre was an article in the New York Times magazine section on March 9th, attacking the conservative judges on the Fourth Circuit Court of Appeals. This voluminous article contained not one example of a written law that Fourth Circuit judges interpreted to mean something other than what it said. Instead, there were a lot of words (and a couple of photographs) about Senators Jesse Helms and J. Strom Thurmond, and their role in the judicial nomination process that put two judges on the Fourth Circuit bench.

When all is said and done, however, Senators Helms and Thurmond have had just two votes out of a hundred in the Senate. If they are not being put front and center for purposes of guilt by association, what is the point? Moreover, the two nominees they sponsored are by no means a majority on the Fourth Circuit bench.

Tangential issues dominate the New York Times' hatchet job. A plaintiff who lost on appeal is quoted in a sweeping denunciation of the judges -- without a word even claiming to show how the decision varied from the statutory law or the Constitution, which are after all what judges are put on the appellate courts to uphold.

Characterizations abound. This is said to be "a judicially active conservative court" serving "a conservative political agenda." If true, these would be grounds for impeachment. If not true, they tell us more about the liberals who make such charges than about the judges on the receiving end.

The ease of creating verbal parallels has led to much moral equivalence, whether between Communist countries and the United States or between liberal and conservative judges. But do these parallels stand up under scrutiny?

"Judicial activism" is one of those confused terms that have come to mean all things to all people. Its initial meaning was quite clear: Judges who make rulings based on their own personal assumptions, beliefs, and preferences, rather than on the written statutes or the Constitution, are judicial activists. They are a threat to the very concept of law or of a self-governing democracy.

The fact that it was liberals who did this most often in the era that began during the New Deal and reached its peak in the Warren court years led to the phrase "liberal judicial activism." Now, those who promote moral equivalence have countered with charges of "conservative judicial activism."

Examples of liberal judicial activism are easy to find. When Justice William Brennan decided the 1979 Weber case by "interpreting" the Civil Rights Act of 1964 to mean the direct opposite of what its words plainly said, that was substituting what Brennan wanted for what Congress had voted to enact into law.

No such cases are brought forward by those who proclaim that "conservative judicial activism" is a threat. Instead, most do what the New York Times article does -- cite cases whose outcomes they wish had been different, such as a ruling upholding laws on parental notification before a child can get an abortion.

Whether that law is good, bad, or indifferent is a political issue, for which we have political institutions, such as legislatures and executive branches of government. Appellate judges are supposed to determine whether laws violate the Constitution, not whether they personally agree with them or not.

There is a more sinister side to media attempts to manufacture a "conservative judicial activism" threat. Liberal columnist Albert Hunt has argued that, when President Bush makes nominations based on ideology, the Senate has a right to make their ideology an issue when voting on these nominees.

Interpreting the law as written is not an ideology. It is what all judges swear to do when they go on the bench. Are those who do so now to be considered "activists" or even "extremists," so that only those who lied when they took the oath are acceptable?

©2003 Creators Syndicate, Inc.

Contact Thomas Sowell | Read his biography



TOPICS: Editorial; News/Current Events; Politics/Elections
KEYWORDS: fourthcircuit; thomassowelllist

1 posted on 03/11/2003 11:38:50 PM PST by kattracks
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To: kattracks
Interpreting the law as written is not an ideology. It is what all judges swear to do when they go on the bench. Are those who do so now to be considered "activists" or even "extremists,"

Of course! This is nothing new. Look at Justice Scalia! What sort of press does he get?

2 posted on 03/12/2003 12:00:52 AM PST by Huck
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To: kattracks; Molly Pitcher
Great article!!!!
3 posted on 03/12/2003 3:29:31 AM PST by The Raven
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To: Congressman Billybob
Examples of liberal judicial activism are easy to find. When Justice William Brennan decided the 1979 Weber case by "interpreting" the Civil Rights Act of 1964 to mean the direct opposite of what its words plainly said, that was substituting what Brennan wanted for what Congress had voted to enact into law.
Surely Cheney, acting as President, can interpret Senate Rules with equal aplomb. After all, the Standing Rules is a living document ;-)
4 posted on 03/12/2003 4:26:28 AM PST by William McKinley (You're so vain, you probably think this tagline's about you)
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To: kattracks
This is a fine example of why the Left absolutely hates Thomas Sowell. He never lets them get away with anything. There is no sharper mind practicing political punditry anywhere in America.

Freedom, Wealth, and Peace,
Francis W. Porretto
Visit The Palace Of Reason:
http://palaceofreason.com

5 posted on 03/12/2003 5:19:48 AM PST by fporretto (Curmudgeon Emeritus, Palace of Reason)
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To: kattracks; The Raven
I would like to have Mr. Sowell's brain....
6 posted on 03/12/2003 5:31:11 AM PST by Molly Pitcher (Praise God from Whom all Blessings Flow....)
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To: Molly Pitcher
I just finished reading this article last night. It's all that Sowell says, with the exception that the author actually complained that Clinton's judicial appointments were too "centrist" and not liberal enough. The article was centered around a sexual harrassment jury decision that the 4th overturned. The author said the court is too friendly to business... and blah, blah, blah.

It was a typical NY Times hit-piece wrapped in journalism. Oh, and the same issue has an article on Mel Gibson's movie. I didn't read it. My father did, and he told me it went on and on about Mel's father who, apparantly, is a bit of a nutcase. So they go after Mel's dad. Is that relevant to his movie, or to his faith? Vaguely, I suppose, and mostly not. Only in the world of the Slimes.
7 posted on 03/12/2003 7:30:21 AM PST by nicollo
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To: *Thomas_Sowell_list
http://www.freerepublic.com/perl/bump-list
8 posted on 03/12/2003 7:30:30 AM PST by Free the USA (Stooge for the Rich)
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To: kattracks; Howlin; votelife; RonDog; ken5050; PhiKapMom; JulieRNR21
While Senate Democrats are filibustering against the nomination of Miguel Estrada to the federal appeals court, liberals in the media are filibustering against conservative judges in general.

Thomas Sowell shines the light on the enablers of the Dem. obstructionists.

The Decline of American Journalism, NY Times, 1800s fight against NY City abortionists.

The press has become the greatest power within the western countries,
more powerful than the legislative, the executive, and the judiciary.
One would then ask: By what law has it been elected
and to whom is it responsible?  -  Aleksandr Solzhenitsyn

Keep calling Senators, neighbors and friends. Let them know we know. We don't need AP. We have C-Span....and FR.

9 posted on 03/12/2003 4:59:56 PM PST by Ragtime Cowgirl ("I call 'em FRENCH fries" - Alan Colmes, Mar. 11.)
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To: Ragtime Cowgirl
Keep calling Senators, neighbors and friends. Let them know we know. We don't need AP. We have C-Span....and FR.


AMEN BUMP!
10 posted on 03/12/2003 7:25:30 PM PST by JulieRNR21 (Take W-04........Across America!)
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To: JulieRNR21
Thanks, Julie! Sen. Graham finally voted today...against Miguel and for the anti-American organized crime machine. Sigh. He chose unwisely!
11 posted on 03/13/2003 2:39:57 PM PST by Ragtime Cowgirl (Democrats = "Weapons of Mass Obstruction.")
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To: Huck
Dear President Bush,
With the Surpeme Court session getting ready to close, it may well be time for perhaps the most important domestic decision of your presidency: the appointment of a Supreme Court Justice(s). The main reason why I supported you in 2000 and why I wanted Daschle out of power in 02 (and 04) has to do with the courts. I want America courts to interpret law, not write law. During your presidential campaign you said Thomas and Scalia were your two model justices. Those are excellent models. The High Court needs more like them. Clarence Thomas recently said to students that the tough cases were when what he wanted to do was different from what the law said. And he goes by the law. This should be a model philosophy for our justices. Your father, President Bush lost his reelection campaign for 3 main reasosn, as far as I can see. 1. he broke the no new taxes pledge 2. David Souter 3. Clinton convinced people we were in a Bush recession (which we had already come out of by the time Clinton was getting sworn in)

I urge you to learn from all three of these: 1. on taxes, you're doing great. Awesome job on the tax cut. 2. good job so far on judicial appointments. I want to see more of a fight for Estrada, Owen, and Pickering, but I commend you on your nominations. 3. by staying engaged in the economic debate you'll serve yourself well

I have been thoroughly impressed with your handling of al Queida, Iraq, and terrorism. You have inspired confidence and have shown great leadership.

But I want to remind you that your Supreme Court pick(s) will be with us LONG after you have departed office. I urge you to avoid the tempation to find a "compromise" pick. Go for a Scalia or Thomas. Don't go for an O'Connor or Kennedy. To be specific, get someone who is pro-life. Roe v Wade is one of the worst court decisions I know of, and it's the perfect example of unrestrained judicial power.

I know the temptation will be tremendous on you to nominate a moderate. But remember who your true supporters are. I am not a important leader or politician. I am "simply" a citizen who has been an enthusiatic supporter of you. I am willing to accept compromise in many areas of government but I will watch your Court nomiantions extremely closely. What the Senate Dems are doing right now is disgusting, but as the President you have the bully pulpit to stop it. Democrats will back down if you turn up serious heat on them.

Moreover, I think public opinion is shifting towards the pro-life position. Dems will want you to nominate a moderate, but almost all will vote against you anyways. Pro-choice Repubs will likely still vote for you if you nominate a Scalia, after all, you campaigned on it. So Mr. President, I urge you to stick with your campaign statements and nominate justices who believe in judicial restraint, like Scalia and Thomas.

Happy Memorial Day and may God bless you and your family.
12 posted on 05/29/2003 7:28:34 PM PDT by votelife (FREE MIGUEL ESTRADA!)
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