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(DV) Goldsmith: Activist Judges







Activist Judges
by Patricia Goldsmith
April 5, 2005

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Whatever else the sad case of Terri Schiavo represents, it marks the first time that there has been mass awareness of the fact that we are living in an incipient theocracy. Alarm bells started to ring when people saw all the big guns -- the executive branch, Congress, the media -- pointing at one court deciding one case in Florida. For the first time, people imagined themselves, rather than some demonized other, clashing with an intrusive religious government -- with courts helpless to put a stop to it.

Tom DeLay’s official statement on Terri Schiavo’s death upped the ante: “The time will come for the men responsible for this to answer for their behavior, but not today.” DeLay obviously intends to start impeaching judges with whom he disagrees on religious grounds, in defiance of our constitutionally mandated separation of church of state.

But the worst is still to come. Sometime within the next few weeks Senate Republicans are expected to deploy the so-called “nuclear option” to remove the two-hundred-year-old right to filibuster from our system of checks and balances. At that point George Bush and the Republican Party will be able to appoint literally anyone to lifetime judgeships, up to and including the Supreme Court. It’s a move tantamount to declaring one-party rule by a simple majority vote in the Senate.

While Republicans themselves labeled this maneuver “the nuclear option,” now, as they approach its actual use, they’ve decided to call it “the constitutional option.” It’s a telling change in language. In our system, the majority rules, but minorities have certain inalienable rights, which are enshrined in documents called constitutions. These constitutional rights cannot be taken away by legislation, by court rulings, or even by popular vote. The higher courts’ most important function is to preserve these rights.

It doesn’t take much thought to realize that you don’t insure minority rights for the country by unilaterally revoking minority rights within the Senate. For that reason, the nuclear option itself may very well be unconstitutional -- but once the courts are packed, who will say so? It’s a dangerous, potentially democracy-destroying Catch 22.

When I say Republicans will be able to appoint anyone, I don’t mean just anyone. The Bush administration is re-nominating 20 of its most egregiously unacceptable candidates. It seems that only these judges will do. A look at their records may offer insight into the special qualities they possess that make these particular candidates irreplaceable.

Terrence Boyle. Boyle’s rulings have been reversed 150 times for “plain error.” In more than 20 years on the court, Boyle has never ruled in favor of an Americans with Disabilities Act plaintiff. He has twice been reversed by the Supreme Court for allowing congressional redistricting that disenfranchised black voters.

William G. Myers III. According to Jim Lyon, National Wildlife Federation Senior Vice President for Conservation, “Appointing Myers to the federal bench would be tantamount to initiating a rollback of 60 years of environmental protections.” Myers has never been a judge.

Miguel Estrada. In his spite of the fact that most of his record is unavailable for review, we know that Estrada’s direct supervisor in the Office of the Solicitor General raised questions about his temperament and his ability to separate legal decisions from ideological beliefs.

Priscilla Owens. This is the conservative’s conservative, the most rightwing judge on a rightwing Texas court, who is frequently the sole dissenter. Alberto Gonzales, no less, accused Owens of “an unconscionable act of judicial activism” for her incredibly narrow reading of a state law that allows minors to obtain an abortion without parental notification.

“Judicial activism” is, of course, precisely what Republicans always accuse liberals of doing: writing instead of interpreting the law.

In fact, what the neocons call “judicial activism” is really the exact opposite: courts following the law and accepted legal procedure. This hasn’t been clear to many people because, up to this point, attacks on the court have centered on unpopular gay and abortion rights, and on largely symbolic separation of church and state issues like school prayer and fights over whether the Ten Commandments can be displayed in municipal buildings.

Many people would unthinkingly agree, for example, that courts ruling that states must offer marriage to gay people are writing, not interpreting, law. They would be wrong. Courts rule based on law and evidence. What has been changing with respect to gay rights is the evidence courts draw on. Evidence shows that homosexuality is a naturally occurring variant in human sexuality, across all of written history and all known cultures; far from being a chosen lifestyle, we now know that homosexuality is genetically mapped. Gay people are not any more likely than heterosexuals to commit sex crimes, or other crimes for that matter. Data show that they are equally capable of parenting. Hundreds of communities have written anti-discrimination laws protecting gays, and many churches now sanctify gay unions and accord full equality to gay congregants.

In the absence of rational reasons to the contrary, courts are required to rule on the evidence, rather than religious beliefs and personal preferences, in order to insure that all citizens receive equal protection under the law. The problem in these cases is not that judges are rewriting the law, but that following the law leads to results some people don’t like.

Very much like the Schiavo case.

Almost alone among our public institutions, courts are not free to ignore facts. If Republicans succeed in packing our courts with activist ideologues and religious zealots, we may realize, too late, that each person is a very vulnerable minority of one in a system that does not protect individual rights.

Patricia Goldsmith is a member of Long Island Media Watch, a grassroots free media and democracy watchdog group. She can be reached at:

Related Article

* Terri Schiavo and the Battered Judiciary by Mike Whitney

Other Articles by Patricia Goldsmith

* Terry Schiavo: Never Forget