Proactive Judicial Activism

May 23, 2005

In my daily perusal of the news, I caught two items that illustrate, quite clearly, how liberals view the role of the judiciary, thus revealing, in stark terms, how critically important is the battle over the judicial filibuster.

First, I read about a commencement speech at Brandeis University by the Massachusetts Supreme Judicial Court justice who authored the opinion declaring same-sex marriage legal in Massachusetts. reported that Justice Margaret Marshall said, “Our courts function as a pressure valve to defuse political and social tension.” Marshall equated criticism of “judicial activism” to a challenge to judicial independence and an effort “to skew public debate or to intimidate judges.”

Where do you suppose Marshall came up with the idea that courts serve as pressure valves? Of course we resolve legal disputes in trial courts, but that’s hardly what the justice meant by defusing social and political tension. Where in the Constitution — federal or State of Massachusetts — did this lady divine the notion that appellate courts are to take it upon themselves to set policy?

But here she is, consistent with her same-sex marriage decision, publicly defending the prerogative of the judiciary to make law and implement a policy agenda. Worse, she’s employing the tactic recently adopted by the Left of accusing opponents of judicial activism of intimidation when they denounce judges who engage in the practice. It’s another perfect example of accusing the other side of doing precisely what you are attempting: intimidation.

When its guard is down, the Left openly admits it philosophically supports judicial activism as a means to the end of establishing policy. Having resigned itself to the unlikelihood of achieving its goals through the legislative process, the Left doesn’t even bother to explain how it can reconcile the courts assuming a law-making role.

That’s why there is no moral equivalence between conservatives opposing activist judges and liberals opposing originalist judges. Even if Republicans had obstructed President Clinton’s appellate court appointments to the degree Democrats have blocked President Bush’s, which is not the case, we’re talking apples and oranges, because most such Clinton appointees believe, as a matter of their judicial philosophy, that it’s acceptable for courts to make law. If all judges honored the courts’ proper constitutional role, the subject of their “conservatism” or “liberalism” would be largely irrelevant, because they would relegate themselves to interpreting the law, rather than making policy — conservative or liberal.

I truly don’t know of any “conservative” judges who believe in judicial activism. The fact that liberals say originalist judges are merely activist judges with a conservative bent doesn’t make it so. But it certainly serves to muck up the issue and create the false perception of a moral equivalence — something the Left has refined to an art form.

Not that it’s needed, but I found further proof of the Left’s willingness to conspicuously embrace judicial activism, in reviewing the transcript of Democratic National Committee Chairman Howard Dean’s appearance on NBC’s “Meet the Press.”

As DNC chairman, Dean speaks for the party. Right out of the box Sunday, in response to a question about the potential significance of the anticipated Republican decision to invoke the constitutional option to outlaw filibusters for judicial nominees, Dean said “… 48 percent of us didn’t vote for President Bush, but we still have some say in shaping the agenda of the country.”

This quote immediately reveals two things about Dean’s (and the Left’s) mindset concerning the judicial appointment issue. First, as I correctly asserted in a very recent column, Democrats seem to think they are entitled, as a minority party, to have their own judges appointed in proportion to the popular vote percentage their losing candidate (John Kerry) received in the election. Based on Dean’s rants and other things I’ve read, I don’t think I’m drawing an extreme inference.

More importantly, Dean, like Justice Marshall and, presumably, the lion’s share of Democrat congressmen, makes no bones about admitting that he views the role of appellate judges as including policy making (agenda-shaping). If there were any doubt about Dean’s meaning, he added a few minutes later (still in reference to the judicial appointment issue), “This is the last opportunity the Democrats have to say anything about public policy” considering that “one party is pretty well in charge in Washington.”

In other words, Democrat congressmen should utilize the filibuster to reject originalist judges appointed by Republican presidents, no matter how qualified and honorable.

Democrats have done a good job snowing people into believing this judicial fight is purely one of partisan political rancor, but it is much more than that, from their perspective. It’s a last ditch, desperation effort to hold on to the judiciary as a policy-making vehicle.

All of the foregoing underscores why the breaking news — that Senate Republicans have once again caved by entering into a “bipartisan” compromise with Democrats to avert the constitutional option and undermine President Bush and his judicial appointment power — is exceptionally troubling.