The judicial times, they are a changing . . .

 

Justice Antonin Scalia

Whether from the influence of their intellect, their religion, their life experiences, or their legal training, the conservatives on the Supreme Court, of whom Justice Scalia is generally held to be the most conservative, are beginning to be accused of judicial activism, a rather vague term defined in this way by Answers.com.

The charge that judges are going beyond their appropriate powers and engaging in making law and not merely interpreting it. Against this position is placed the ideal of judicial restraint, which counsels judges to resist the temptation to influence public policy through their decisions and decrees.

Describing a judge as "activist" is almost always meant pejoratively. For example, here is a January 2010 opinion piece published in Los Angeles Times. It was written by Erwin Chemerinsky, current and founding dean of the University of California, Irvine School of Law  in response the the Court's recent 5 to 4 ruling on campaign finance reform.

[Judicial Activism] . . is never defined with any precision and has often been used to refer to decisions that conservatives simply don't like. But if judicial activism has any meaning, it surely refers to decisions that overturn laws and overrule precedents. In contrast, judicial restraint occurs when courts defer to the other branches of government and follow precedents.

By this definition, judicial activism can be good or bad. Brown vs. Board of Education was activist in that it declared unconstitutional laws in many states requiring the segregation of the races in education. To do so, the justices overruled a 58-year-old precedent upholding such laws. But virtually all agree today that Brown was one of the greatest moments in Supreme Court history.

To conservatives, though, the phrase "judicial activism" has come to mean any decision with a liberal outcome. President George W. Bush declared: "The judges ought not to take the place of the legislative branch of government. . . . I don't believe in liberal activist judges. I believe in strict constructionists." The 2008 Republican platform declared that "[j]udicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public."

The court's campaign finance decision makes this conservative rhetoric laughable. . McCain-Feingold was a continuation of statutes that have existed since 1906 limiting corporate spending in federal election campaigns. The act was intended to prevent the enormous wealth of corporations from distorting elections and protect corporate shareholders from having their money used for purposes with which they disagree.

For years, conservatives have argued that judicial restraint requires deferring to the choices of the elected branches of government. No such deference was evident when the court's five most conservative justices struck down this provision of the McCain-Feingold law on Thursday.

This is what Nina Totenberg  had to say about judicial activism, yesterday, on Talk of the Nation. 

...for years Republicans accused or conservatives accused liberals of being activists, and now liberals accuse conservatives of being activists.

It's all in the eye of the beholder. And because our politics have become so polarized and so, frankly, poisoned, and because in particular the such an essential part of the Republican Party base are social conservatives, for whom some of the things that the court did involving gay rights, involving abortion, involving school prayer even, are loathed. And that has really galvanized a certain wing of the Republican Party.

These issues have become more and more politicized. And the whole question of court nomination and confirmation has become, as a result - and selection - has become, as a result, much more politicized. . .

Our politics, vis-a-vis judicial nominations and confirmation, have changed dramatically. They probably have changed dramatically for the worse because there's no subtlety here, and distortion is the name of the game for all sides.

This morning, on the front page of The Washington Post,  there was a Howard Kurtz column that seems to exemplify the aforementioned downward slide of our whole judicial confirmation process.

White House complains about CBS News blog post saying that possible Supreme Court nominee is gay

Kurtz's column tells how CBS news published an online column by Ben Domenech, a former Bush administration aide and Republican Senate staffer,  making  assertions about the sexual orientation of Solicitor General Elena Kagan, widely viewed as a leading candidate for the Supreme Court. Domenech wrote

" that President Obama would "please" much of his base by picking the "first openly gay justice."

CBS initially refused to pull the posting, prompting Anita Dunn, a former White House communications director who is working with the administration on the high court vacancy, to say: "The fact that they've chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010." She said the network was giving a platform to a blogger "with a history of plagiarism" who was "applying old stereotypes to single women with successful careers."

The network deleted the posting Thursday night after Domenech said he was merely repeating a rumor.

How, I ask, with my sad head in my hands, does sexual orientation (whether rumored or true) come to be seen as relevant in the selection of a Supreme Court judge if a justice is supposed to be dispassionately applying the Constitution to legal questions?