28 June 2010

Empty Terms Department: "Activist Judges"

Supreme Court nominee Elena Kagan is undergoing grilling on Capitol Hill today. As always, the nomination is contentious and sure to provide lots of thunder with no real enlightenment, the overuse of craptacularly meaningless words and phrases, and in the end, an approval of the nomination. To get us started with some meaningless rhetoric, we have Senator Jeff Sessions, a very experienced bullshitter:
But in an opening statement, the top Republican on the panel, Sen. Jeff Sessions (Ala.) sought to portray Kagan as a liberal with little judicial experience who has "associated herself with well-known activist judges." Sessions said Kagan has "many good qualities" but cautioned that "there are serious concerns about this nomination" among Senate Republicans.
Generalities, platitudes, keywords...in a word: "yawn."

What exactly is an "Activist Judge" anyway? It's a term conservatives are fond of throwing around, and as close as I can tell it means anyone who believes that the U.S. Constitution covers, well, everyone in the U.S. and not just a few subsets.

Even Wikipedia contains information on the problems associated with using this descriptor:
From the very beginning, the phrase was controversial. An article by Craig Green, An Intellectual History of Judicial Activism, is highly critical of Schlesinger's use of the term. "Schlesinger’s original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad."
So the term dates from 1947 and was proposed by the late Arthur Schlesinger, Jr., a historian that the Right Wing has little time for.

However useless it may be as an actual descriptor for a judge, it is an effective cudgel with which to bludgeon nominees and send shivers down Glenn Beck viewers' spines about the possibility of a rogue judge sealing the nation's doom by ruling that gays, Blacks, and women are people, too.

A brief google search for "activist judges" turned up what I thought it would: a host of right-wing sites that didn't have a useful definition of what an activist judge was, but had a whole host of reasons why judicial activism was bad, and many included decisions they disagreed with (with of course absolutely no context as to how those decisions were reached). For instance, the "Law Enforcement Alliance of America," a group that seems to advocate for a police state in which judges essentially rubber stamp D.A. prosecutions, provides this gem of a definition:
A restrained judge believes that the meaning of these words [e.g. "unreasonable" in "unreasonable search and seizure, but also other words in laws, statutes, etc.] already exists, that the meaning came from the legislatures or the people who enacted those words into law in the first place, and the judge’s job is to find it. Activist judges, in contrast, pursue their own agendas and believe they can give those words any meaning they choose.
Not very helpful. First, there's the obvious straw man: I doubt you would get any legal expert to argue seriously that any judge believes he or she can "give those words any meaning they choose." That demonstrably false claim leads to the reason that the entire definition and contrast between restrained and activist judges is invalid: in both cases the judges are interpreting the intention -- or unintended consequences (because laws contain both) -- behind the words. Sites such as this one I've quoted above seem to believe in a pure intelligibility of language -- that meanings are crystallized, permanent, transparent, and shared by everyone.

Oh, if it were only that simple.

Unfortunately, language is anything but transparent. You don't have to descend into Clintonian silliness with a "that depends on what the meaning of 'is' is" argument (although to be fair to the former President, his wrangling over words is part and parcel of the practice of all sorts of specialized fields in law) to understand that "unreasonable" can mean different things to different people.

I imagine that if the Supreme Court had allowed the 2000 election recount in Florida to continue the Right would have thundered on about judicial activism. It's a real interesting issue, because one of the charges conservatives level at the so-called "activist judiciary" is that they take decisions out of the hands of the people, and you'd think stopping a recount of people's votes would be seen as a fairly direct example of that infringement.

As it is, you could pretty much determine that any decision of the Supreme Court's is "activist"; that's how useless the definition is.


Washington Cube said...

I've got to come back and read this in the morning. Busy as usual, I see.

cs said...

Hey, Cube, good to see you, or at least your desk (which, out of your avatars, is my favorite one).