http://www.365gay.com/newscon05/01/010105judges.htm
This is the start of an occasional series in which I highlight Republicans criticizing other Republican ideas. One of the best ways to criticize right-wing arguments is to rebut them with what other Republicans are saying. Now that the Republicans are in control of the whole government, we can use this to our advantage because they will be snarling and fighting among themselves because they can't blame us for the country's problems. Our right-wing friends can easily blow off arguments by liberals. But they will have a much harder time blowing off arguments of fellow Republicans.
Supreme Court Chief Justice William Rehnquist has criticized George Bush's call to reign in "activist judges." In January 2004, Bush called for Congress to pass laws reigning in "activist judges" during his State of the Union address. In response, Texas Senator John Cornyn held hearings which focused on the Massachusetts Supreme Court's decision to allow gay marriage.
Rehnquist, no friend to the gay community, has stepped in and told the President and Congress in effect, "Tough s--t." He defended the lifetime appointment of judges, saying,
"It is not a perfect system -- vacancies do not occur on regular schedules, and judges do not always decide cases the way their appointers might have anticipated. But for over 200 years it has served our democracy well and ensured a commitment to the rule of law."
He also accused Congress of seeking to punish judges for not ruling the way governors and presidents wanted them to when they appointed them to the post. He said that appointing judges for life preserves their independence from the influence of the President and Congress when making their decisions.
This suggests to me that any attempts by the Republicans to recklessly pass laws on what judges can and can't rule on will not pass constitutional muster. If Congress goes too far, the courts can simply strike their efforts down as unconstitutional because the laws violate the Separation of Powers clause.
So the next time your right-wing friends complain about activist judges, tell them that the problem with activist judges is a myth. And tell them that William Rehnquist said so.