Tuesday, September 06, 2005

All The News Thats Fit To Print

Yesterday I wondered how the New York Times Editorial Page would react to the nomination of John Roberts to the position of Chief Justice. Now I know. Now it’s even more vital to know his opinion on "controversial issues."

The résumé attests to his [John Roberts] right to be considered, and the lack of a real judicial record makes it hard for potential critics to guess how he might rule on controversial issues.

Like the president, this page worries about activist judges who might use the Constitution as a cloak for their desires to remake society in the mold of their own political preferences. Unlike Mr. Bush, we believe the record now shows that most of those jurists are conservatives, who strike down laws that do not fit their political philosophies or their extremely narrow view of governmental power.

Pffffewwwwwww, where to start?

First, there’s the liberal verbal acrobatics that have turned the meaning of the term “judicial activist” upside down. Conservatives originally coined the term to denote judges that found rights in the Constitution that were not at all obvious from any reading of the actual words in the Constitution. The idea was that in looking outside the Constitution, judges would really just be looking to their own political preferences. Of course, both liberals and conservatives can be judicial activists. The problem for conservatives is that any so-called conservative activism, say for instance the finding of a Constitutional “freedom of contract,” has been disdained by the vast majority of Constitutional scholars for the past 70 years.

But liberals have changed the meaning of “judicial activist” to mean a judge that strikes down laws enacted by Congress. By that logic, a judge that strikes down a law enacted by Congress that violates the First Amendment is an “activist judge.” The issue is the meaning of the Constitution, not how many Congressional laws a judge may vote to strike down. With their verbal acrobatics, liberals have turned conservatives who believe in following the Constitution as written into “activists.”

And finally, the Times has made it clear that they are opposed to judges who hold an “extremely narrow view of governmental power.” Which as a general proposition is just fine. After all, plenty of conservatives are opposed to activist judges who hold too broad a view of federal power. The problem is, just what is the Times suggesting? Are they suggesting that Robert’s shouldn’t even be approved if he holds these views? As I mentioned earlier, it would be a sad day when judges with fairly mainstream views were denied a position on the court by those who held another set of mainstream views in opposition to those of the nominee.

The lonely libertarian finds it almost evil of the Times to beat around the bush so much. If John Roberts is a conservative originalist, they don’t want him on the Court. But rather then come right out and say that, they play around with language and skirt the issue as much as they possibly can.


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