Bush's Favorite Judges & Activism---great suggestion from this Kos post...

[Gloria]

http://www.dailykos.com/storyonly/2005/7/6/14178/92515

The Most Activist Judge: Clarence Thomas
by Hunter
Wed Jul 6th, 2005 at 11:17:08 PDT

This New York Times op-ed by Paul Gewirtz and Chad Golder suggests an actual measure for what makes an "activist" judge:

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O'Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

Bush has repeatedly praised Scalia and Thomas as model judges; one can infer, from that, that what Bush and the conservatives are really looking for are judges that "legislate from the bench", overturning laws and overriding the will of Congress. Right?

As the editorial suggests, the entire Republican notion of "activist judges" is imprecise at best. To that I'd add silly, intellectually lazy, and more than infrequently completely dishonest. The religious right wants desperately to appoint "activist judges" who reshape laws according to religious conservative preferences. They just don't want anyone else to point that out.

So let's toss that Republican talking point down the nearest storm drain. Or start using it against them.

[Igel]

1. I read that article earlier today.

And I didn't like it.

I'm not sure I agree that most conservatives would say that an activist judge legislates by striking down laws. Most may include that in their examples, or even in their definitions. But it's not the striking down of laws per se that I think most conservatives would point to.

I think most would say "activist" judges legislate by either extending laws to cover what the laws' authors didn't intend by or finding "new rights" or legal principles that legislators must take into account.

[Luminous Animal]

2. Sure

But your long explanation is not the Republican meme which is, "oppose judges who legislate from the bench". Now the majority of Republicans who parrot that phrase probably don't even know what it means. So, if ever you encounter that phrase, you've got your handy stats from Kos.