Judicial Activism

Along with all of the other garbage we are going to have to hear during Sotomayor's confirmation hearing, we are inevitably going to be bombarded mercilessly by one of the great Conservative lies- that conservative judges are "strict constructionalists" who uphold the "original intent" of the framers of the constitution, while liberal judges are "judicial activists" who "legislate from the bench," i.e. do any damn thing they please. This utterly bogus (that is to say Republican) issue is what is behind the avalanche of Republican criticism on Obama's use of the word "empathy" in connection with his Supreme Court pick. After all, in their eyes, the only ones who deserve to have the court really understand their situation are corporations and the very rich.

Most of you may not remember that the presence of the ultraright racist William Rehnquist on the Supreme Court resulted from a breakdown in congressional resistance after two other equally loathsome Nixon nominees, Carswell and Haynesworth had been rejected. This set the pattern for Republican behavior from then until now: First, appoint the most vile right wing maniac to the court you can, after searching far and wide to find one whose record is sufficiently murky to allow him to sit in front of the Senate and lie his ass off about what a moderate he is; then set up a deafening chorus of abusive shreiks and wails to force Democratic presidents to appoint the most weak-kneed candidate possible. This strategy has been used not only for the Supreme Court but for court of appeals vacancies too, resulting in a court system that has moved farther and farther to the right, and farther and farther into the pockets of the rich, over the last fifty years.

This is the true judicial activism, and it has worked. We now have justices Scalia, Alito, Roberts and Thomas, who exist for no other purpose than to sell this country to the wealthiest among us. As a result, it really takes only one of the other five presumably somewhat open-minded Justices to rule in the favor of the rich and powerful. Many of the Federal district courts are equally polluted, and the result is an endless flow of judicial decisions that have absolutely no justification in previous legislation, and which have turned our entire country to the right.

If you have any doubt about who the real judicial activists are, please take a look at this post from today's Daily Kos, which provides some quick statistical evidence about which Justices follow precedent and which do not. As you might guess, given that this is a Republican talking point, the truth is the exact opposite of their claims.

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