Flying beneath the radar, the Senate Judiciary Committee yesterday send President Obama's first two Appellate Court nominees to the full Senate yesterday. Judge David Hamilton was approved on a straight party-line vote of 12-7 (He's going to the 7th Circuit) and Judge Andre Davis fared much better with a 16-3 vote (He's going to the uber-conservative 4th Circuit). Neither is important in and off themselves, but for the fact that they could be a pre-cursor to what we see in Judge Sotomayor's hearings. In this regard, let's call these nominations "pre-season."
What jumped out to me, in light of my last post, was a quote by Republican Judiciary Committee Ringleader Jeff Sessions (R - AL). He said, "nominees do have the potential, if they’re activists, to promote political agendas, often times agendas that can’t be won at the ballot box or passed by Congress." But let's examine that quotation, as I suggested in my last post.
He defines activist judges as promoting political agendas because they rule in a way that expands liberties. Thus, things like affirmative action, racial equality, marriage equality, and other social issues, are, according to Sessions, matters that should be decided by the legislature. Of course, even when those things ARE decided by the legislature, the judges that he supports would strike them down. In reality, he does not want judges who respect the acts of Congress, but ones who agree with his underlying political ideology. As it relates to being "activist," nothing could be more "activist" than overruling the will of the people as expressed by legislature.
As an example, let's look at two cases decided by the Rehnquist Court. In United States v. Lopez, the Supreme Court struck down a federal statute that regulated gun activity near schools. Rehnquist, writing for the majority, concluded that any impact on interstate commerce was attenuated, and therefore, Congress did not have authority under the Commerce Clause to regulate this type of activity. Congress learned the lesson of Lopez, and in passing the Violence Against Women Act, held detailed hearings about how violence against women affected interstate commerce, information that was assumed, but not considered in Lopez. Nonetheless, in United States v. Morrison, the Supreme Court again struck down parts of the statute because they did not believe it affected interstate commerce.
Morrison was really a shocking "activist" decision that demonstrates the complete hypocrisy of Senator Sessions and his ilk. Congress held hundreds of hours of hearings on how violence against women affected interstate commerce and then passed a bill by a wide measure. Despite this "victory at the ballot box" (as Sessions would call it) for gender equality, the Supreme Court nonetheless imposed their views for that of the people's elected representative. In Morrison, it wasn't that Congress didn't do what it was supposed to do, it was merely 5 judges on the Supreme Court saying "yeah, that was nice, but we don't BELIEVE you that this really affects interstate commerce." All the Rehnquist Court did is impose its beliefs, its judicial philosophy, in place of those of Congress.
Senator Sessions and his Republican colleagues want to define "judicial activism" as expanding liberties without the vote of the legislature. However, they are more than willing, in fact, they prefer, to support judges who restrict liberties by overturning the will of the people as implemented by the legislature. This demonstrates not only the hypocrisy of the Republican attacks, but also the complete vacuousness of the term "judicial activist." Now if only someone would call them on this nonsense.