What exactly is an "activist" judge? by Raven West
(libertarian)
Monday, June 1, 2009
The current debate over the appointment of Judge Sonamayor and her comments regarding judicial duties has hit the news media like a tsunami. For those of us who have attended law school, the controversy is ridiculous. We all know that the legislature branch actually makes the laws and it is the attorneys who argue their cases based on prior rulings, or case precedent.
The Supreme court's job is to interpret civil and criminal cases as they apply to the U.S. Constitution. If a legislative branch elects to put a law into their own state's constitution, those who are against the new law have the ability to challenge the constitutionality of that law by suing the governing body in a court of law.
Areas of personal dispute, such as divorce actions or contested wills, are barred from Supreme Court rulings. These are delegated to the states because each state has it's own particular code of law. However, when there is a federal issue, such as discrimination or intellectual property rights, these decisions can, in a sense, make new law, but do not actually make any "law".
The Constitution was designed as a living document. It was written so that it could be amended, although not easily, by the people. And even when the popular feeling at that time amends the constitution towards the times, it can also be amended when those times change. Such was the case of the 21st Amendment which repealed the 18th Amendment ban on alcohol.
In a perfect world, a judge is totally unbiased in their rulings. They would base their decisions solely on the merits of the case and the letter of the law and not bring into their ruling any personal bias. This would be very easy if judges were computers. One side puts in their argument, the other side puts in their argument, hit a button and out pops the verdict. Maybe someday we will have that impersonal judicial system, but one can only hope that will never be the case.
Judges are human beings. The reason our Supreme Court is made up of nine members is so that not one person alone can decide the fate of an individual, or class of people. Decisions have to be based on a majority on the court and both sides are heavily involved with writing their rulings. Pages and pages and pages with very detailed analysis of facts, issues, rule of law, are carefully drafted to support the judges point of view.
It is a very rare case that a Presidential Supreme Court appointment is not confirmed by the Senate. This confirmation process should only be based on the candidate's prior record, interpretation of the law, experience and competency. Just like any other employment interview, the "job" of Supreme Court Justice should never be decided on the candidate's sex, race, religion or ethnicity. As long as the U.S. Supreme Court is make up of human beings, and not robots, the rulings will always be influenced by individual human traits.
Being a Human Being is a necessary qualification for any job, especially a Supreme Court Justice.
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Posted By: Jahfre Fire Eater
Date: 2009-06-02 20:51:40
Hi Raven West,
 I have a different take on this. The government was designed with checks and balances and safeguards intended to keep the government in check.
An activist judge, in my view, is one who deliberately uses the power of the bench to expand the power of the government over the people.
Activist judges are enemies of the citizens of the United States, pure and simple.
I have no idea if this person is one. No doubt Obama will fill as many seats with activist progressives. I can't be bothered with the details. This one, that one. They are all the same in the end.
The progressives have latched onto judicial activism as one of their most important tools for elminating our republic and homogenizing the states and the communities within those states. Activist judges are willing tools in harnessing the population in servitude to the State.
This should be absolutely no surprise to anyone who has heard any of Obama's speeches. He intends to end the USA as we know it. Of course he will appoint activist judges. There is no question. Because he appointed her is sufficient to recognize her as an activist judge, at least as far as Obama is concerned.
Jahfre: "Activist judges are willing tools in harnessing the population in servitude to the State."
Which is slightly odd, because she has been criticized by conservatives for *not* being an Activist Judge on two issues:
1. She declined to "legislate from the bench" to overturn the descrimination laws passed by Congress (Ricci), which forbade employment tests with "divergent outcomes". In many other cases, she has shown deference to the legislative processes. For that, she has been damned;
2. She declined to overturn Supreme Court Precedent and "insert her own views" into the Second Amendment ("Nunchuck"), by finding that it is an "incorporated right". In many of her other cases, she has taken the proper role of a Circuit Judge and followed Supreme Court rulings. For this "non-activist" stance, she has been damned.
In both cases, she is damned by *conservatives* who have always railed against "legislating from the bench" and disrespect for judicial precedent. When Sotomayor conforms with their demands, they attack her for *not* being activist.
It seems some people want to have their cake and eat it too.
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