Activist Judges
April 26th, 2005 | by Dr. Forbush |Yesterday I swapped cars with my wife. Since the AM radio on my car no longer works I found that I could surf the AM dial for the 40-some minutes that it takes to get to work. I listened to Rush for a while, but his obtuse view of the world makes no sense, and it isn’t even worth arguing about any more. So, I flipped over to the local talk radio where the talk show host isn’t quite so radical. On the way home from work I also listened to the AM dial for the ride home.
I was inspired by one talk show host who pointed out that the radical right is being quite dishonest about its description of activist judges. This talk show host, a self proclaimed Libertarian, had no axe to grind with either side of the aisle. He pointed out that the radical right doesn’t really want to get rid of activist judges. The radical right actually wants to appoint activist judges that want to push the radical right’s agenda. This is normal for the party in power, but they are being dishonest about what they want and how they are doing it.
Take Bill Frist’s speech on Sunday. He is basically claiming that the Democrat’s objection to some judges is an attack on the Christian Faith. However, the ten judges that the Democrats oppose actually are activist judges. The ten judges as a group are being objected to because these judges have a history of interpreting the law to support the conservative agenda instead of following the law. This is exactly the point that the radical right makes against judges that imposed busing back in the 1960s and 1970s.
But, the case that the radical right used to crystallize support to “clean up” the judiciary was the Terri Shaivo case. There have been cries from the radical right saying that activist judges put Terri to death. Even in the one day of talk radio I listened to, I heard callers echoing the cry of Activist Judges putting Terri to death.
However, this is far from the truth. Most laws of the country and certainly the laws of Florida say that the husband actually is responsible for his wife. This means that the non-activist position on this issue is to support the husband. This is the law and to support the wife’s parents is certainly the activist position. If conservatives feel that there is a problem here, then there is a problem with the law and not with the judges. If conservatives think that the law should be changed, then they should change to law to what they think it should be. Perhaps they want parents to retain control over their children even after marriage.
I would suggest that this position is contrary to the Religious Conservative’s reading of the Bible. For example: Gen 2:24 “Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.” After the joining of these two people they become responsible for each other.
So, at every level of the court system the Shindlers asked for the judges to be activists. And, the radical right is using a case of consistent non-activism to claim that the courts are full of activist judges. To make matters worse they are trying to change the Senate debate rules in order to place radical activist judges on the bench. Then Tom DeLay has said that he will cut funding to the activist judges in Florida that allowed Michael Shaivo to let his wife die. And to top off the deceptive practices of the radical right they are publicizing this radical effort by calling it an effort to remove activist judges.
An interesting thing to note is that when governments grab for power they tend to go after the judicial branch. Of course this is because friendly judges will not prosecute crimes of the leaders who appointed them. If the radical right floods the courts with activist radical right judges, then the law will no longer apply to the leaders of the radical right. This issue is actually more important than most people realize, because it goes to the heart of our Democracy. People like Tom DeLay will be able to break the laws with no consequences, while people like Bill Clinton will face hypocritical abuse of power like impeachment for infidelity.
Cross posted at Dr. Forbush Thinks
10 Responses to “Activist Judges”
By Gun-Toting Liberal on Apr 27, 2005 | Reply
Good post Dr. Forbush. The Republicans would love nothing more than to see a Supreme Court made up of a bunch of “Roy Moore’s”. It’s a scary thought but that’s the bottom line.
By Hammertime on Apr 27, 2005 | Reply
Dr.,
We don’t all think that Terri was killed by activist judges. I think she was killed, legally, by her husband. I think the law should be changed to reflect that those who become incapacitated without a document that specifies their desires should be kept alive. You know, the whole culture of life thing we talk about.
Can I still talk about activist judges, since this potential hypocrisy has been eliminated?
I guess a question your post made me consider is this: What makes a judge an activist? Whether one agrees with it or not, is it 1) Finding a new way to interpret the federal or state constitution, 2) Removing previously found new ways to interpret those constitutions, or 3) All of the above?
By Dr. Forbush on Apr 27, 2005 | Reply
Hammer,
You may not think that Terri was killed by activist judges. However, if you listen to talk radio, which was the point of this post, you will notice that the callers and the conservative talk show hosts are saying something different. This is the rhetoric that is being used to rally the troops. It doesn’t make sense, but it is clearly being used in the battle being waged in the US Senate. And, the point of the post is to point out that it doesn’t make sense. I’m glad that you agree with me…
By The Cranky Liberal on Apr 27, 2005 | Reply
If we wish to change the law, thats great and maybe should be done. Maybe we should also require someone to spell out their wishses when they get a drivers license (or Real ID card) to avoide all the hassle.
I’m glad to see you say what you said Hammer. I agree with DF though that the message being spewed to the masses was “activist judge” when in reality it was a “letter of the law” situation.
Then again, that’s not different from the same ring leaders attempt to scream “badins decisons on foreign law” and “internet research” when the first was inaccurate (as pointed out by Craig Harmon, and the other is inconsequential. The sound bite is enough to get certain folks off Key and crazed like a mad Cow.
By sally on Apr 27, 2005 | Reply
The Terri Schiavo case helped to make the point the neo-cons has been trying to make about activist judges that somehow they couldn’t…
By Dr. Forbush on Apr 27, 2005 | Reply
I added sources for two of my assertions just to make it clear that I am not making this stuff up.
By Girl Ipsa on Apr 27, 2005 | Reply
Activist judge is an interesting term. My father (republican white capitolist man) seems to think that all judges should do is INTERPRET the law. But there is an entire, ever changing and evolving body of judge made law which provides guidance to both state and federal courts — Common Law. This is not only the way we’ve done it in this country since the beginning but it’s also the best way to do it. We have a tripartate government for a reason. And all too frequently it is the judicial branch which puts the breaks on the legislature and the executive.
People do not discuss what goes on in the courts intellegently because average people do not understand the judicial process to begin with. For the most part judges are not free to just do what they want, regardless of the law or policy (Notwithstanding Roy Moore, ofcourse). Until people take their own education seriously and seek out accurate information on which to form independant opinions, public opinion will always parrot the talking head which speaks most persuasively… Not most truthfully, reasonably or even judicially.
Excellent Post! Thanks.
By pia on Apr 27, 2005 | Reply
I don’t listen to talk radio. It manages to scare and bore me at the same time.
But the last sentence of Dr. Forbush’s post started me thinking: in the whole discussion about “activist judges,’ who has defined what a “letter of the law” judge is?
Won’t two judges see the letter of the law in different ways, because very few laws are that concrete?
So talk radio has people backing Bill Frist, and I think Bill Clinton rules. How do we get from the first person to the second?
Besides keeping the filibuster–which is a very last chance method, what do we do to assure that we’re able to keep the Constitution and the Amendments pure?
By The Bastard on Apr 27, 2005 | Reply
If our politicians would stop writing such poorly written laws that have holes big enough you could drive a truck through we wouldn’t have activist judges. Oh the irony, politicians write such poorly written laws that usually get declared unconstitutional and then blame judges for trying to interpret them! That’s what you get when you have people like “the bugman” running the show!
By Craig R. Harmon on Apr 28, 2005 | Reply
My working definition of activist judge is one who not only strikes down existing law–for, say, being unconstitutionally broad, for example–but then goes on and declares what shall then be lawful. One of the favorite examples is Roe v Wade. The judges determined that prior law, prohibiting abortion, was unconstitutional. Fine. They did not then tell Legislators to amend or draw up new law that would be constitutional, rather they determined that, henceforth, by fiat, abortion shall be a constitutional right (excuse me? I’ve never seen that particular amendment), at least under certain conditions. This decision was then used to broaden that right to include, effectively, abortion on demand, for any reason, at any stage of gestation right up until birth. Um…a Constitutional right? Hence activist.
I’m sure many will challenge much of the above. I’m writing off of the cuff so I don’t have a solid handle on the particulars of Roe, etc., but, as I say, it is my working definition. It’s open to refinement through discussion…and discussion, I imagine, there shall be.
I suppose that there are plenty of sloppily written law but I’m not sure that it is possible to write laws that will cover every eventuality, every situation that might occur. If it were possible and it were always done, there would be little need for judges or judicial review.