Re: OT: Political

On 2 Nov 2005 20:25:24 -0800, davkopp@xxxxxxx wrote:

>
>Mike Corbett wrote:
>> On 2 Nov 2005 16:54:20 -0800, davkopp@xxxxxxx wrote:
>>
>> >
>> >Larry Gantman wrote:
>>
>> >> > The poll is not misleading in the least.
>> >>
>> >>
>> >>
>> >> The poll claims to identify judicial activists, yet simply identifies
>> >> jurists who interpret some laws as conflicting with the Constitution. Do
>> >> you have a different understanding?
>>
>> Please start by answering this question, David. It represents the crux
>> of the misunderstanding. The poll question is about what I think both
>> you and I would agree is "Judicial Review" NOT about what either you
>> or I call activism.
>>
>> The NYT takes the review question and reports as if judicial review
>> were the same thing as judicial activism.
>>
>> Are we in agreement so far? If not, why not?
>
>I do not agree with your characterization of the NYT article. The NYT
>article was intended to show that "conservative" judges are no less
>likely- in fact more likely- to overturn legislative enactments than
>are "liberal" judges, and that this conflicts with one of the
>conservative arguments about judicial activism, i.e., that conservative
>judges are more likely to defer to the will of the people as expressed
>through the democratic process, and that this is the proper role of a
>"modest" judiciary.

That's as convoluted a dodge as I've seen in a long time. Yes, the
article shows quite well that conservative judges are statistically
more likely to vote to overturn legislative enactments than liberal
judges are. The article refers to that as "activism". Since neither
you or I would define activism that way, I can't imagine you buying
into it. The convolution is in how you jump from that to deferring to
the will of the people. If you think judges are to interpret laws and
the Constitution, what does the will of the people have to do with it,
except to ignore the law and constitution to bend to the perceived
"will of the people".

We have a Constitution and SCOTUS precisely to protect the nation from
any time when the democratic process would result in thwarting the
Constitution.

>
>As to the terms "judicial activism" and "judicial review", they are
>very different things. In fact, "judicial review" is a very clear
>concept as expressed in Marbury v. Madison, while "judicial activism"
>is a malleable term meanng different things to different people.

Yes, so why buy into NYT's choice to interchange the terms?

>>
>>
>> >> >
>> >> > Again, this might well be true, but it misses the point of the article
>> >> > and of my post.
>>
>> Your post is based on an article that is a crock, David. The NYT did
>> not ask a question about activism. Did it?
>
>Certainly it did. Here are the first two paragraphs of the article:
>
>"WHEN Democrats or Republicans seek to criticize judges or judicial
>nominees, they often resort to the same language. They say that the
>judge is "activist." But the word "activist" is rarely defined. Often
>it simply means that the judge makes decisions with which the critic
>disagrees.
>
>In order to move beyond this labeling game, we've identified one
>reasonably objective and quantifiable measure of a judge's activism,
>and we've used it to assess the records of the justices on the current
>Supreme Court."

You left out the survey question. Why?

>
>I don't think the article is a "crock" at all. I think it is on point,
>factual, and persuasive.

Based on the false premise that overturning legislation is "activism"
instead of what it is, "judicial review".

>
>>
>> Yet the article and your post are about activism. Conclusions of
>> activism are not supported by the survey question. Are they?
>
>Absolutely yes they are, with respect to one aspect of judicial
>activism, i.e., the propensity to overturn the will of the people as
>expressed through legislative enactments.

That's not activism. It's judicial review. If overturning
legislation isn't judicial review, just what is?

Yes, I realize you can have judicial review that upholds laws too.
That's the idea.


>It is about one aspect of what some have defined as judicial activism
>(see above). As for myself, I would define judicial activism somewhat
>differently. To me, judicial activism is when a judge applies his or
>her own values and beliefs in making decisions rather than reviewing
>the applicable law and applying it to the facts of each case as it
>comes along.

The "some" to which you refer are not representative of conservative
main stream thinking. As such the value of the comparison is quite
limited. The NYT apparently thought many would be stupid enough to
fall for their deception.

>
>So personally, the NYT article is not terribly helpful to me in
>defining who on the Supreme Court is an "activist" because I don't
>think you can define that by simply toting up numbers. I think you
>have to read the opinions and see if the judge is applying the law
>fairly to the facts of thevarious cases. This to me cannot be a
>result-oriented process, because I can disagree with a decision and
>still not find it to be "activist".

The article is neither helpful to you or any other reasonable person
who actually "thinks" about such things rationally. Such persons were
not the intended audience.

>
>> Unfortunately, it would appear that at least for a moment (perhaps in
>> your zeal to take shots at the right) you were led down the garden
>> path by the New York Times. No?
>
>No. I wasn't led down any path. The article cogently knocks down one
>of the arguments about judicial activism. That the article describes
>a premise of what judicial activism is , with which I disagree, does
>not diminish the value of the article.

Whatever. The reader will decide. :-)

Mike Corbett
.

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