One of the things that has burned me over the years, and that is threatening to become a raging inferno during Sotomayor's hearings, is the oft repeated GOP charge that liberal judges are "activists" who make up law to suit their ideology while conservative judges mechanistically "apply" the law without cognition or emotion. And while progressives like EJ Dione below have pointed out the hypocrisy of this charge, Democratic politicians haven't been very effective at refuting the accusation ... until Sheldon Whitehouse yesterday.
Progressives need to get better at getting this counter argument out because in many ways, this whole confirmation hearing isn't really about Sotomayor (who everyone, including Republicans, say will be confirmed) but is about setting the standards by which Supreme Court nominees are to be judged. So if we want the American public to accept Obama's next nominee (one much more likely to progressively shift the balance of power on the court) we need to be laying the ground work now. And preventing the GOP's mantra of 'liberal judge = activist = bad' while 'conservative judge = impartial umpire = good' from taking hold in the American zeitgeist is therefore absolutely critical.
Watch RI's Sheldon Whitehouse very effective rebuttal of the GOP's activist argument (I especially loved his counter to their common balls and strikes metaphor):
And here EJ Dione, quoting Whitehouse, provides an example of right-wing, judicial activism from the current Supreme Court:
Republican senators ... want to use the hearings to paint the moderately liberal Sotomayor as, at best, the outer limit of what is acceptable on the bench to justify the new conservative activism that is about to become the rule.
"They have more or less given up on defeating her, so they are going to engage in a framing exercise," Sen. Sheldon Whitehouse (D-R.I.), a member of the Judiciary Committee, said in an interview. "They're trying to define a Republican worldview imported into the judiciary as the judicial norm for the country."
The goal, Whitehouse added, "is to define the political ideology" of the new conservative judiciary as "representing the mainstream and to tarnish any judges who are outside that mark."
If you wonder what judicial activism looks like, consider one of the court's final moves in its spring term.
The justices had before them a simple case, involving a group called Citizens United, that could have been disposed of on narrow grounds. The organization had asked to be exempt from the restrictions embodied in the 2002 McCain-Feingold campaign-finance law for a movie critical of Hillary Clinton that it produced during last year's presidential campaign. Citizens United says it should not have to disclose who paid for the film.
Rather than decide the case before it, the court engaged in a remarkable exercise of judicial overreach. It postponed its decision, called for new briefs and scheduled a hearing this September on the broader question of whether corporations should be allowed to spend money to elect or defeat particular candidates.
What the court was saying was that it wanted to revisit a 19-year-old precedent that barred such corporate interference in the electoral process. That 1990 ruling upheld what has been the law of the land since 1947, when the Taft-Hartley Act banned independent expenditures by both corporations and labor unions.
To get a sense of just how extreme (and, yes, activist) such an approach would be, consider that laws restricting corporate activity in elections go all the way back to the Tillman Act of 1907, which prohibited corporations from giving directly to political campaigns.
It is truly frightening that a conservative Supreme Court is seriously considering overturning a century-old tradition at the very moment the financial crisis has brought home the terrible effects of excessive corporate influence on politics.
In the deregulatory wave of the 1980s and '90s, Congress was clearly too solicitous to the demands of finance. Why take a step now that would give corporations even more opportunity to buy influence? With the political winds shifting, do conservatives on the court see an opportunity to fight the trends against their side by altering the rules of the electoral game? ...
So when conservatives try to paint Sotomayor as some sort of radical, consider that the real radicals are those who now hold a majority on the Supreme Court. In this battle, it is she, not her critics, who represents moderation and judicial restraint.
Intrigued? Read more at my blog A Blue View.