06 May 2008

Clear Reasons to Vote Democratic (1a) ~ Against Judicial Acticism

In a speech in Winston-Salem, the Arizona senator said he would 'look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint.'

'I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference,' McCain told an audience at Wake Forest University." ~ Reuters (6 May 08)

The problem, of course, is that our current conservative justices in fact are extremists who lack much notion of the limits of "judicial restraint." I posted on the extremist thing a couple of days ago. (Remember, McCain's favorites - Alito, Rehnquist & Roberts - are among the five most conservative justices of the past seven decades as judged by their voting records on economic and civil liberties cases.) So today let's focus on the dreaded curse of judicial activism where, it seems, our putative conservatives are serial offenders.

There is plenty of plausible evidence that our conservative extremists are also, despite the rhetoric of the right, activist judges. In other words, research reveals that, the "conservatives" are more likely than their relatively more liberal counterparts to overturn precedent, and to overturn enactments of the U.S. Congress. The 'liberals' are more likely to be activist in the face of state legislation. You can find a summary of such research in this OpEd from The New York Times a few years back (see this comment too). You can find more such evidence of more recent vintage here. Of course conservatives don't like this evidence. They prefer to argue by persuasive definition, assuming that activists must be liberal. You can get a feel for the terms of the debate in this exchange [1] [2].

Clearly, the Court should be in the business of overturning some legislation - whether State or federal - if it deems it unconstitutional. No party to this dispute denies that. (My "clearly" should not be misread what we might call judicial review idolatry; the practice of judicial review in the U.S. is, like most political institutions, simply a by-product of strategic interaction among politicians - Marshal and Jefferson in the early 19th Century.) The studies I cite above suggest that our "conservatives" have a real pronounced propensity to impose their views over the outcome of legislative processes. But the evidence of extremist voting on the part of our current conservatives that I mentioned a few days ago surely makes one raises serious questions about just what is driving their activism - a principled view of the constitution or flat out political preferences. I know where my own extremist vote lands on that one.

McCain has made it clear that, given a chance, he will appoint more justices who are right-wing-extremists and who are activist in that cause. Why would you vote for him? Why would you vote for a third party candidate when that arguably would only improve McCain's chances of winning?

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