We Are All Judicial Activists

I don’t know what level of trickery, or simple intellectual dishonesty, permits the Senate to accuse some judges, but not others, of “judicial activism,” but this specious parlor game has got to stop. This week, Senate Republicans killed the nomination of Goodwin Liu to the United States Court of Appeals for the Ninth Circuit. The claim? He’s an activist.

Judges are activists. Period. That is what we pay them to do, to make judgments about the law as applied to the controversies brought to court. There are no non-activist judges, just as there is no vision of the law uninfluenced by the political preferences of those interpreting it. To suggest otherwise is to succumb to the ancient fallacy regarding law as the expression of eternal truths, akin to geometry, a view made famous by none other than Plato, in the Republic.

On Plato’s view of the law, there is but one class of folks fit to interpret the law -- the philosopher kings. Yet even Plato knew enough to realize that these philosophers were doing more that merely serving as passive recipients of truths uttered and discerned without effort. Philosopher kings were activists, engaged in the life of the mind, serving the dialectic as it revealed the truth.

Senate Republicans are now flittering with the cookbook theory of the Constitution. On their view, any idiot can read the text and discern its meaning. It is platonism turned on its head. The people, any idiot really, can read the Constitution and the law and get it right. How do we know if the law has been correctly interpreted? Why the reading simply must be in accord with the intention of the founders of this republic. 

Just how this species of idiocy became a political weapon is a story that has not yet, to my knowledge, been told with the sort of insight necessary to place it into context and put it behind us. We are still in the grip of this form of romanticism. The founders, oh, those brave and heroic souls, with what balderdash we surround tales of them! Did George Washington never tell a lie? Oh, yes, and we can tell just how and whether the Government should be free to search of cell phones without a warrant by discerning Washington’s intent, too. Does anyone really believe this garbage?

The answer is yes. The Federalist Society does. And so do the cadres of judges with whom the Society has stuffed the federal bench in recent years. But I suspect the real truth is as follows: good Federalist Society judges were Republicans and social conservatives first, their judicial philosophy came later. I’ve yet to read the intellectual biography of a jurist who declared, in effect, “I was a left-leaning activist until I read the Federalist Papers, and then the blinders fell off my eyes, and I beheld the truth.” Jurisprudence isn’t like that. It is the hard and laborious work of forever weighing, considering and evaluating legal doctrine -- a very active task.

Senator Jeff Sessions, a judicial reject with a chip on his shoulder the size of his native Alabama, is a cheerleader for this nonsense. Here is his take on Liu: “His record reveals that he believes the Constitution is a fluid, evolving document with no fixed meaning.” Duh, Senator. What else could it be? Finding the binding intent of the long since dead in mere words is the most active form of necromancy. And it begs the larger question you refuse to answer: why should we the living venerate the words of the dead, who, among other things, held slaves? (I know, Jeff; Alabama is not now what it once was: oh, those fantasies of golden ages long since passed.)

I was not an enthusiastic supporter of Liu’s. He is young, 40, and, as near as I can tell, has never practiced as a lawyer. Yes, he’s wicked smart and creative. But until you’ve stood in the well of the court and faced a judge or jury, the law is little more than a parlor game. I don’t trust judges who preach what they have never practiced. I might have voted against Liu on grounds that he lacked the requisite experience to make judgments about what goes on in a courtroom. Putting him on the bench would be akin to placing some idiot savant in an operating room who could recite chapter and verse out of leading surgical texts, but had never once held a scalpel.

Senate Republicans took issue with Liu for remarks he made about then Supreme Court nominee Samuel Alito when Alito faced confirmation. Liu challenged Alito’s activism, his willingness to justify the creation and exercise of bold new powers for the executive. Here’s what Liu said: “Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no signs of resistance.”

The Senate was in an uproar over these remarks. But yet, that is exactly what is happening in our courts. This authoritarian jurisprudence, the product of a robust judicial activism, is sweeping through the federal courts. In the past decade and a half, the doctrine of qualified immunity, a creation of a very active and conservative bench, has ravaged federal civil rights actions, making it increasingly more difficult for ordinary citizens to advance civil rights claims in the federal courts. The conservatives like this just fine and dandy. They don’t call it activism when changes in judicial interpretation advance their agenda. When you agree with the outcome, it accords with the founder’s intent.

This sort of specious reasoning was last fully on display in the Scopes monkey trial in Dayton, Tennessee in the 1920s. That’s when Clarence Darrow cross-examined William Jennings Bryan, reducing the Biblical fundamentalist to stuttering declarations of faith. When will the originalists meet their Dayton?

Senator Sessions is an activist, and a hypocrite. Goodwin Liu was perhaps not fit for the bench because he lacked courtroom experience. The only sort of judicial activism that should matter in confirmation hearings is whether a judge has experience with the activity that goes on in a courtroom. The rest is simple balderdash and stupidity. 


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