Wednesday, June 20, 2007

Bringing Truthiness To The 'Activist Judges' Canard

Mike McCabe gets to the heart of the right's fiction about so-called activist judges.


illusory tenant said...

[S]elf-proclaimed strict constructionists such as ... Justice Antonin Scalia ...

A quibble perhaps, but Scalia has never proclaimed himself a "strict constructionist."

In fact, he has flat out declared "I am not a strict constructionist, and no one ought to be," and referred to strict constructionism as "a degraded form of textualism that brings the whole philosophy into disrepute."

So when President Bush calls Scalia a "strict constructionist," he's 1) betraying his ignorance; 2) insulting Scalia; and 3) speaking in (easily decipherable) code to the faithful.

As for BCRA (a.k.a. McCain-Feingold), the challenges launched against it by Mitch McConnell and WRtL are (without getting into tedious detail) of very different natures - the first was a "facial challenge" whereas the latest is "as applied."

Not only that but McConnell v. FEC is such a splintered decision (it contains eight separate opinions), it's not surprising to hear some especially penetrating interrogation from the bench during the April oral arguments.

Finally, it's just as easy to accuse "liberal" judges of seeking to overturn recent precedent as it is to accuse "conservative" judges of the same.

"Strict constructionism," "textualism," or whatever you want to call it doesn't stand for an unwavering devotion to stare decisis, so Mr. McCabe's argument in that regard tends toward the fallacious.

James Rowen said...

This is not much different than the right attacking liberals for "political correctness," or "social engineering/"

The right also has its own cultural and economic goals it hopes to achieve through legislation - - stem cell prohibitions, Arctic oil drilling, banning affirmative action, banning abortion - - or through court or executive action.