John McCain and the Myth of the “Activist Liberal Judge”

Time for change

(1000+ posts) Send PM | Profile | Ignore

Tue Apr-15-08 08:15 PM
Original message

John McCain and the Myth of the “Activist Liberal Judge”

How many times have we heard Republicans whine about “activist liberal judges” who “legislate from the bench”? The implication is of course that liberal judges overturn laws passed by Congress in order to push their own left wing ideologies.

That is one of the many lies that Republicans endlessly blabber on about in order to lead people to believe that they respect the democratic process more than Democrats do. The truth is that Republicans have no choice but to lie about this and every other major issue of interest to the American people. How else could a Party whose every act favors wealthy corporations and individuals at the expense of the vast majority of American citizens hope to have a chance of surviving in a democracy?

John McCain does his share to push the myth of the “activist liberal judge” who “legislates from the bench”, just as he pushes virtually every other Republican sponsored myth. This is what he has to say about the issue of “activist liberal judges” on his website:

John McCain believes that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, John McCain will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.… That is why he strongly supported John Roberts and Samuel Alito for the Supreme Court and that is why he would seek men and women like them as his judicial appointees.

So, let’s take a look at what the evidence says about these “activist liberal judges”

An analysis of activist U.S. Supreme Court Decisions

One of the most “activist” decisions that a judge can make is to strike down a law passed by Congress. Until 1991, the U.S. Supreme Court struck down an average of one Congressional statute every two years.

From 1994 through 2005 the composition of the USSC did not change. An analysis of USSC votes by Paul Gewirtz and Chad Golder, from 1994 to 2005, a period during which the composition of the Court did not change, revealed 64 decisions involving the striking down or upholding of Congressional provisions. So what did that analysis have to say “liberal activist judges”?

Two of the USSC judges on the court during this period of time (Ginsburg and Breyer) were appointed by a Democratic president (Bill Clinton) and are considered moderately liberal. Then there are another two who were appointed by Republican presidents, but who are considered moderate (Souter and Stevens). The other five were appointed by Republican presidents and are considered conservatives (Thomas, Scalia, Rehnquist, Kennedy, and O’Connor). Here is the percent of votes in 64 USSC decisions on Congressional statutes or provisions of statutes enacted by Congress, from 1994-2005, in favor of striking down those provisions or statutes:

Conservatives
Thomas – 66%
Kennedy – 64%
Scalia – 56%
Rehnquist – 47%
O’Connor – 47%

Moderates
Souter – 42%
Stevens – 39%

Liberals
Ginsburg – 39%
Breyer – 28%

So much for “liberal activist judges”. Senator Dianne Feinstein put this issue in perspective in a 2005 speech:

The Rehnquist Court has continued this restrictive, some might say "activist," position. Its decisions have wholly or partially invalidated more than three dozen federal statutes in the past decade… including: the Brady Handgun Violence Protection Act, which seeks to keep guns out of the hands of criminals; the Age Discrimination in Employment Act, and the Americans with Disabilities Act, both of which seek to protect citizens from discrimination.

Some specific ways in which conservative USSC justices legislate from the bench

Environmental protection
Environmental legislation is enacted by Congress in order to help protect our environment from irresponsible corporate actions. Many radical conservative judges don’t believe that Congress has the Constitutional right to enact environmental legislation (or other legislation that establishes administrative agencies to enforce the will of Congress.) This is based on the absurd notion that, although our Constitution gives Congress the authority to enact legislation, it doesn’t give them the authority to delegate that authority. People for the American Way describes the antipathy of two of our most conservative USSC justices to environmental legislation:

Justices Scalia and Thomas have already used their positions as part of narrow majorities on the Court to do very significant damage to federal, state and local efforts to protect the environment. They have also helped lead majority opinions that have undermined the ability of citizen groups to bring lawsuits in their efforts to enforce environmental protections.

Affirmative action
Congress and state legislatures enact affirmative action legislation to help equalize opportunities for minority groups who are often discriminated against. People for the American Way describes how Thomas and Scalia have reacted to these efforts:

Since his earliest days on the Supreme Court, Justice Scalia has signaled his hostility to affirmative action. In a 1987 case dealing with affirmative action for women, Justice Scalia dissented from a decision upholding the validity of affirmative action under Title VII of the Civil Rights Act of 1964…Justice Scalia stated that he would never allow affirmative action under any circumstances….

Justice Thomas' views on race and affirmative action are equally extreme…Thomas called affirmative action "noxious" and labeled it "government-sponsored racial discrimination.”

Voting rights
Since the enactment of the Voting Rights Act of 1965 Congress has maintained that no American citizen should be discriminated against in his/her right to vote. People for the American Way describes how Thomas and Scalia have consistently sought to undermine this principle, in opposition to the will of Congress and the American people:

In 1994, Justices Thomas and Scalia advocated a radically activist position in a concurring opinion that, had it been the majority opinion, would have done great damage to the nation's progress toward ensuring all Americans an equal opportunity to participate and be heard in our democratic system. Not only would Thomas' and Scalia's position in Holder sharply diminish the protections provided by the Voting Rights Act of 1965 (VRA), it would also overturn 30 years of Supreme Court precedent and at least three congressional reauthorizations of the Act. The Thomas-Scalia opinion in Holder would virtually nullify Sections 2 and 5 of the Act, which were specifically created to end racial gerrymandering and other practices that deny voting rights to minorities.... Justices Stevens, Blackmun, Souter and Ginsburg criticized the Thomas-Scalia opinion, calling their position "radical" and estimating that it would have required the overturning or reconsideration of at least 28 previous Supreme Court decisions holding that the Voting Rights Act of 1965 should be interpreted broadly to prohibit racial discrimination in all aspects of voting.

The Commerce clause
The commerce clause of Article I of the U.S. Constitution gives Congress the authority to enact laws pertaining to interstate commerce. From the New Deal days of FDR’s Presidency, until the mid-1990s, Congress had taken a more activist role in making use of that clause, and judicial decisions had consistently supported them. That began to change dramatically in the mid-1990s. One example of this change was the overturning of a federal statute that prohibited gun possession near school zones. In United States v. Lopez, by a 5-4 majority (with the 5 conservative justices in the majority) the U.S. Supreme voted to strike down the law. The dissent by the other 4 justices (written by Justice Breyer) emphasized the activist nature of the decision:

The issue in this case is whether the Commerce Clause authorizes Congress to enact a statute that makes it a crime to possess a gun in, or near, a school .… In my view, the statute falls well within the scope of the commerce power as this Court has understood that power over the last half century.

Senator Dianne Feinstein also emphasized the activist and precedent reversing nature of that decision in a speech to Planned Parenthood:

Lopez marked the first time in the 60 years since the New Deal that the Supreme Court struck down an act of Congress for exceeding the Legislative Branch's Commerce Clause powers.

The Fourteenth Amendment to our Constitution
The 14th Amendment was added to our Constitution in 1868 in an attempt to provide civil rights to all Americans, especially those who are habitually discriminated against. The Violence Against Women Act of 1994 (VAWA) was enacted by Congress in an attempt to prevent and reduce violence against women in our country, which was estimated to have occurred two million times in 2005. By the exact same 5-4 majority that struck down the federal statute that prohibited gun possession near school zones, the U.S. Supreme Court struck down a provision of VAWA that allowed women to sue those who commit violence against them in federal courts. The dissent by the 4 other USSC justices explained how this decision ignored our 14th Amendment:

Congress used Section 5 (of the 14th Amendment) to remedy the actions of state actors, namely those States which, through discriminatory design or the discriminatory conduct of their officials, failed to provide adequate (or any) state remedies for women injured by gender-motivated violence – a failure that Congress documented in depth.

The most activist, worst, and corrupt USSC decision in U.S. history

Though the three “strict constructionist” justices on the USSC (Thomas, Scalia, Rehnquist) had previously shown nothing but contempt for the 14th Amendment to our Constitution throughout their whole careers, that didn’t stop them from using it in a pinch. Unable to think of any other excuse to stop the vote counting in Florida in the 2000 Presidential election, which would have resulted in an Al Gore Presidency, they used the 14th Amendment as an excuse to do just that, thereby handing the U.S. Presidency to George W. Bush. All five conservative justices disgraced themselves and our nation with the most activist U.S. Supreme Court decision in its history, while the other justices dissented from that decision.

They used the Equal Protection clause of the 14th Amendment to reverse the Florida Supreme Court’s decision to count all the votes, based on their claim that different standards were used for counting ballots in different Florida counties. By that reasoning, the whole election, in all 50 states would have to be ruled unconstitutional, since there were myriad different voting methods used throughout our country.

Given the differences in the quality of voting machines in Florida, and that the purpose (as specified by the Florida Supreme Court) of requiring hand counting of the ballots was to remedy the unfairness that resulted from this, it is beyond belief that anyone with half a brain could honestly come to the conclusion that hand counting the ballots provided less equal protection than accepting the machine counts. That in itself is proof that the five Supreme Court Justices who came up with this ruling did so only because of their own personal preference.

Then there is that fact that the justices took it upon themselves to decide what the deadline date for counting the ballots would be. There was no reason that they couldn't have allowed the deadline to reach at least until the 18th of December, as provided for in our Constitution. But that could have provided time for the counting to be completed, which was why the scumbuckets chose not to go that route.

Then, to pile hypocrisy upon hypocrisy, they said that they wanted to make it clear that this decision of theirs applied only to this one very specific case and should not be taken to set a precedent. No wonder they said that. If their support for the Equal Protection clause of the 14th Amendment were to be used as a precedent in future decisions, it could be used for the intended purpose of the 14th Amendment, which is to prevent the disenfranchisement of minority voters.

Vincent Bugliosi, in “None Dare Call it Treason”, characterized the Bush v. Gore decision in plain words, as well as it’s possible to characterize that decision:

That an election for an American President can be stolen by the highest court in the land under the deliberate pretext of an inapplicable constitutional provision has got to be one of the most frightening and dangerous events ever to have occurred in this country. Until this act – which is treasonous, though again not technically, in its sweeping implications – is somehow rectified (and I do not know how this can be done), can we be serene about continuing to place the adjective "great" before the name of this country?

The utter hypocrisy of conservative activist judges and their apologists

We should all recognize that not every court ruling that overturns a law enacted by Congress or a state legislature represents “legislating from the bench”. Judges are in fact obligated to strike down laws that infringe upon our Constitutional rights. Two good examples of this are: Brown v. Board of Education, which protected the right of American citizens not to be discriminated against with respect to their opportunity for a good education; and rulings that struck down poll tax laws, which facilitated discrimination against African-Americans respecting their right to vote. These are the kind of rulings for which liberal judges are accused by Republicans of “legislating from the bench”.

Today’s radical conservative judges, on the other hand, really do legislate from the bench. They strike down environment protection laws, not to protect our Constitution, but to protect wealthy corporations; they strike down voting rights laws, not to protect our Constitution, but to disenfranchise vulnerable American citizens; they strike down laws protected by the Fourteenth Amendment to our Constitution, not to protect our Constitution, but because they believe that the Fourteenth Amendment goes too far in protecting those who are discriminated against. And worst of all, even stopping the vote counting in a Presidential election in order to ensure the coronation of their candidate is not beneath them.

Thus, the pushing of the myth of “liberal activist judges” “legislating from the bench” is doubly hypocritical. Not only do liberal judges vote to strike down Congressional legislation far less than today’s radical conservative judges, but when they do so they are far more likely than conservative judges to have a reasonable Constitutional reason for it.

One could say that it’s unfair of me to single out John McCain for propagating this myth. After all, he’s just one of a vast army of conservative elites who do this. But since he’s the presumptive Republican nominee for President, he deserves special consideration. Whenever he (or anyone else) brings up this issue, he should be challenged on it. Democrats cannot afford to stand idly by and let Republicans and their corporate news media enablers get away with pretending that they are the Party that gives a damn about the rule of law and the American people.