7/9 Supreme Court justices are Republican appointees. The third branch is hardly a liberal bastion.

"7/9 Supreme Court justices are Republican appointees. The third branch is hardly a liberal bastion."

This just illustrates how Republicans have not, in the past, vetted judicial appointees on their ideological hygiene. Sandra and Stephen are hardly conservatives.

To echo the gist of the Eric's posting, justices should be independent from politics. The fidelity of the justices to the Constitution should be the metric of whether a justice is conservative (strict constructionist) or liberal (emanations of the penumbra). Several of the "Republicans appointees" on the SCOTUS use foreign documents, in lieu of the Constitution, to make their (mis)judgements: hardly conservative, and an impeachable abandonment of their responsibilities, IMO.

one fact that may illustrate how the tone of judicial nomination and confirmation has changed: Antonin Scalia was confirmed by a 98-0 Senate vote, and it's not as if his personal beliefs were a secret. But he was known to be a smart, fair, and good lawyer and judge, which apparently used to be enough.

Of course, if Scalia was appointed 98-0, that means that every Democrat voted for him, too. Ergo, blaming this whole mess on the Democrats who (purportedly) want to preserve their crazy ilberal activist judges seems just as silly as them blaming the whole thing on Republicans who (purportedly) want to make us all Christian.

Maybe - now just maybe - both parties are at fault? Perhaps it's possible that the debate shouldn't be about judicial activism, but rather the poor state of political discourse in the US in general?

"the poor state of political discourse"

If you think the state of political discourse and not institutional and other objective factors are at fault....

You're telling me that Rehnquist, Scalia, and Thomas's riff on the Equal Protection Clause in Bush v. Gore are the writings of strict constructionists?

Where is Ed when we need him?

You're telling me that Rehnquist, Scalia, and Thomas's riff on the Equal Protection Clause in Bush v. Gore are the writings of strict constructionists?

First of all, I never identified any strict constructionist on the SCOTUS. Show me where I did.

Are you really referring to EPC part of Bush v. Gore, or their dissenting view on Article II, Section 1 of the Constitution? I shall assume so, as you singled these three out. Differentiating between legislatures and courts doesn't even seem to rise to the heady question of strict constructionism; it's a simple matter of word definitions. Activist judges, and many on the left, love to blur the division of duties between courts and legislatures, in favor of the courts. They see courts as law-making bodies, too. Not only that, but law-making bodies that trump the legislatures!

Be that as it may, if I were to single out which current justice most strictly adheres to original intent, it would have to be Thomas, IMO, FWIW.

Mr. Blesch, you emphasize that all Democratic senators voted to confirm Scalia as somehow making them worthy of less blame for today's judicial confirmation gridlock. That misses the point of why I brought the Scalia fact into the discussion. I was underscoring the change in the culture of the confirmation process. Of course Democrats voted to confirm Scalia, because back then there wasn't this political garbage polluting the courts.

In '86, even liberal senators were willing to vote for Scalia's confirmation to the SCOTUS, but the tone has changed so much that I doubt it would be the same today. And it isn't necessarily a partisan issue, but Eric highlights the interesting idea that liberals are responsible for the politicizing of this process because they have lost control of the other political branches of government.

To equate Scalia with lunatics like Janice Rogers Brown is a terrible insult to Scalia, frankly.

"Eric highlights the interesting idea that liberals are responsible for the politicizing of this process because they have lost control of the other political branches of government."

Honestly, this is simply revisionist history. During the 90's, the Republican party completely changed the tactics that were used to vet and vote on judicial nominees. Nearly 60 of President Clinton's nominees were defeated without ever having their names submitted to an up or down vote on the Senate floor. Orrin Hatch's favorite method while he was chairman of that committee was to simply deny the justice a hearing or a vote in the Senate judiciary committee.

The Republicans in fact even went so far as to filibuster at least 1 of Clinton's judicial nominees when he reached the floor of the Senate. Bill Frist was in favor of that filibuster.

You can try to tell me how the blocking of those 10 judges by the Democrats is unprecedented all you want, but the facts simply don't back it up.

Janice Rogers Brown is a looney? How so?

Ed is here, just when you need him LOL. The problem I have with Eric's argument is that he seems to actually believe that the Democrats' objections to certain judges are due solely to their "personal philosophies", whereas the Republicans' objection to other judges is purely an objective rejection of bad legal judgement. That is, to put it bluntly, utter nonsense. Are we really going to pretend that either party has the slightest interest in a consistent and coherent judicial theory among those it seeks to put on the court? The Republicans nominate those who they believe will rule in a way that will please their constituents; Democrats do the same. And both seek to stop those who they believe will rule in ways that will anger their constituents, and both use every procedural trick they can to do so.

Where was all this outrage from 1996 to 2000 when the Senate Judiciary Committee was denying hearings and votes to 65 judicial nominees? Where is all this handwringing about "judicial activism" when the same conservatives who complain about it are encouraging more of it and getting angry when they don't get it (the Schiavo case is a textbook example of judges not being activist enough for the very people who bitch relentlessly about acivist judges, as is the pro-life complaints about Alberto Gonzales not voting to overturn a law that was not even being challenged on abortion)? Where are the advocates of "strict construction" when conservative judges seek to read entire amendments out of the constitution, as they so often do with the 9th amendment?

The bottom line, as always, is that the accusations of judicial activism mean nothing more than opposition to judges who don't rule they way the person making the accusation wants them to rule. My argument should be exceedingly easy to disprove. All one has to do is come up with a consistent and coherent definition of "judicial activism" and apply it to every possible case and be willing to give up all of the protections and limitations that such application would logically demand. The past exchanges on this subject on this blog show pretty conclusively that such a definition and application are not imminent. But for god's sake, at the very least, let's stop this silly pretense that one party is motivated by "politics" while the other is motivated solely by objective pursuit of principle.

She believes that "FDR was a socialist, that minimum-wage regulations should be outlawed, that the New Deal was a "socialist revolution," that Social Security should be equated with "cannibalism", and that she is a combatant in a religous war against non-believers."

She has twice received an "Unqualified" rating from the California judicial evaluation committee. She currently has the American Bar association's lowest "passing' rating.

The state bar of California opposed her nomination to the California supreme court, saying her "judicial opinions were insensitive to established precedents and improperly reflected [her] philosophical and personal views."

After her hearing before the Senate judiciary committee...one of her strongest supporters, Professor Stephen Barnett of the University of California, changed his opinion and stated: "Those speeches, with their government-bashing and their extreme and outdated ideological positions, put Justice Brown outside the mainstream of today's constitutional law...I cannot accept Justice Brown's apparent claim that these are "just speeches" that
exist in a different world from her judicial opinions. That defense not only is implausible
but trivializes the judicial role."

During the 90's, the Republican party completely changed the tactics that were used to vet and vote on judicial nominees.

That is true. Starting in '95, when the GOP gained control of the Senate (and House), some Clinton nominees were rejected in committee. I agree that was something of a strong-arm tactic, and I'm not sure why the GOP chose to do things that way. Since they had the majority, nearly all of those nominees would have been defeated in the floor vote anyway.

And that's the key difference between what the GOP did during the Clinton years and what the Dems are doing now. The GOP was the majority party in the Senate and thus arguably had a mandate to deny consent to the President's nominees. What's happening now is that the minority is obstructing nominees who would otherwise be confirmed.

The Republicans in fact even went so far as to filibuster at least 1 of Clinton's judicial nominees when he reached the floor of the Senate. Bill Frist was in favor of that filibuster.

Except there was no filibuster. The vote was 85-14 against the filibuster. And this was in 2000--the GOP had the majority as they have since 1995. Comparing that to what the Dems are doing now is comparing apples to oranges.

Eric Seymore wrote:

That is true. Starting in '95, when the GOP gained control of the Senate (and House), some Clinton nominees were rejected in committee. I agree that was something of a strong-arm tactic, and I'm not sure why the GOP chose to do things that way. Since they had the majority, nearly all of those nominees would have been defeated in the floor vote anyway.

Not true. Only the most extreme of judicial nominees get a straight party line vote. The vast majority of them are confirmed with support across the board. And in the case of many of the Clinton nominees who were obstructed for years, when the obstruction ended they were confirmed easily. Richard Paez' nomination was held up for years, yet he was easily confirmed when a vote was held. The vast majority of the nominees that were held up would likely have been approved easily.

And that's the key difference between what the GOP did during the Clinton years and what the Dems are doing now. The GOP was the majority party in the Senate and thus arguably had a mandate to deny consent to the President's nominees. What's happening now is that the minority is obstructing nominees who would otherwise be confirmed.

Except that, as you noted, those who tried to filibuster Clinton's nominees were even in the minority in their own party, which is why they couldn't sustain the filibuster. The difference between the two is that the minority today is large enough to actually succeed, while that was not the case in the late 90s. But in over 60 cases, the Republicans blocked nominees from even getting a hearing, much less a floor vote. Yet today we hear all this blather about the sacred principle of an up and down vote on each and every nominee, from the very man (Frist) who attempted to deny that to Paez a mere 5 years ago. And yet, for some bizarre reason, you still think that its just the Democrats who are playing politics with nominations, while the Republicans are merely standing up for objective and principled constitutional jurisprudence. This is blind partisanship, not a rational conclusion. Both parties play such games, for the very same reason. Neither one cares the slightest about upholding the Constitution, they care about pandering to their constituents.

The problem I have with Eric's argument is that he seems to actually believe that the Democrats' objections to certain judges are due solely to their "personal philosophies", whereas the Republicans' objection to other judges is purely an objective rejection of bad legal judgement.

Not at all, Ed. Republicans opposed some of Clinton's nominees whom they considered activist judges, and for some other reasons as well. Democrats are opposing Bush's nominees for the exact same reasons, which exposes as a lie the claim that judicial activism isn't a problem.

In other words, the battle over judicial nominations has gotten to the place it is now because of judicial activism, and everyone knows it. Liberals deny that judicial activism is a problem on the one hand because they know that, on the whole, it serves their agenda right now. But on the other hand, they fight tooth-and-nail against Bush's nominees for fear that the judiciary might swing in a conservative direction.

If all judges were doing their best to apply the Constitution, we could leave the politics to the legislature. But that's not happening, and everyone knows it. Their actions prove it.

And in the case of many of the Clinton nominees who were obstructed for years, when the obstruction ended they were confirmed easily.

I'm not sure why that would be the case. I was in high school for half the Clinton years and an undergrad for the other half, so my memory of the politics of the time is not exhaustive. How could all 10 (?) of the Republicans on the Judiciary Committee oppose a nominee, yet a large number of the rest of the Senate GOP support him/her?

Nevertheless, as the majority party the Senate GOP had a much more legitimate standing to oppose certain of Clinton's nominees than the Dems have for their current obstructionism. The last two Presidential elections were supposed to be, in large part, about judicial nominees. Having lost at the ballot box, the Dems are applying this unprecedented application of the filibuster. (It's unprecedented both in using the filibuster for judicial nominees at all *and* for the fact that the Dems are holding up numerous items simultaneously by filibuster.)

Eric, if I understand things correctly, it wasn't that a large number of members on the committee opposed the nominees - if that were the case, the Republicans would have just voted down the nomination along party lines in the Judiciary committee, which they controlled.

What actually happened was Hatch, as chairman of the judiciary committee, had the power in his hands to prevent up or down votes in the committee itself. Traditionally, this power to hold up a nomination without a vote had only really been used for nominations when both Senators from a particular state disagreed with a nominee for a judgeship in that state. Hatch, however, stopped following that unwritten rule, and decided to use the power of the Judiciary chair to prevent up or down votes based on (as far as I can tell) whatever criteria he could come up with.

So, all 10 Repubs on the Judiciary committee weren't opposing most of these judges, the Chairman of the committee was just using his power to prevent an up or down vote.

Eric wrote:

Not at all, Ed. Republicans opposed some of Clinton's nominees whom they considered activist judges, and for some other reasons as well. Democrats are opposing Bush's nominees for the exact same reasons, which exposes as a lie the claim that judicial activism isn't a problem.

But you haven't ever defined judicial activism as anything more than "I know it when I see it." And you haven't addressed the numerous examples where the same republicans who complain about judicial activism have pushed for more activism (using the definitions that they offer of that phrase) and voted for equally "activist" judges in other circumstances. That alone proves that the rhetoric of judicial activism is meaningless. For crying out loud, one of the judges being fought for by the Republicans (Patricia Owen) is praised by these same legislators for trying to overturn a law that wasn't being challenged in the case she was ruling on. If anything qualifies as judicial activism, that absolutely must qualify under any definition. But that was done in service to a goal they agree with (getting rid of abortion), so therefore that judicial activism was good. Judicial activism that leads to results they don't like is horrible; judicial activism that leads to results they like is magically redefined as not judicial activism. It's a ridiculous shell game that only proves my point that there is no coherent definition of that phrase, it means only rulings one disagrees with. The only thing that matters is results, not principled application of the law - which is precisely what you are accusing Democrats of going (and accurately, I might add - they don't care any more about principled jurisprudence than Republicans do).

In other words, the battle over judicial nominations has gotten to the place it is now because of judicial activism, and everyone knows it. Liberals deny that judicial activism is a problem on the one hand because they know that, on the whole, it serves their agenda right now.

Except when it serves the Republican agenda, as it did with Patricia Owen in the abortion case, and as it did with the Schiavo case, and as it does when those conservative judges read the 9th amendment out of the Constitution in order to justify upholding laws that their constituents approve of. Those examples of judicial activism serving the conservative agenda magically transform themselves merely by repeating the same rhetoric when it applies in the opposite manner than intended. So we get ridiculous claims, like accusing Judge Greer, who showed precisely the sort of judicial restraint that conservatives call for constantly, of judicial activism. Judge Birch nailed them on it in spades. The phrase just gets repeated even if today it is aimed at the opposite of what it was aimed at yesterday. As long as it serves the agenda, never mind the total irrationality of the whole exercise. And yet, despite the fact that you haven't even attempted to address these arguments, you continue to claim that only the Democrats are interested in results-oriented judging, while the Republicans are only interested in principled jurisprudence - and pay no attention to the contradictory application of the principles they claim to be supporting behind the curtain.

If all judges were doing their best to apply the Constitution, we could leave the politics to the legislature. But that's not happening, and everyone knows it. Their actions prove it.

I agree, the actions of those claiming to be interested solely in principled jurisprudence prove that they're lying. But you only recognize the nature of politics at play when you disagree with the rulings it leads to. If the same unprincipled reasoning leads to results you like, you're all for it. Because only the other guy is playing politics, not your guy. And just repeating "everyone knows it" over and over doesn't change the dissonance at the core of your argument.

Eric wrote:

I'm not sure why that would be the case. I was in high school for half the Clinton years and an undergrad for the other half, so my memory of the politics of the time is not exhaustive. How could all 10 (?) of the Republicans on the Judiciary Committee oppose a nominee, yet a large number of the rest of the Senate GOP support him/her?

It didn't require all 10 on the Judiciary committee. In 1996, Hatch changed the committee rules to allow a single senator from the home state of a nominee to block them from even receiving a hearing from the committee, much less a floor vote. It was called "blue slipping". When Bush won in 2000, Hatch suddenly decided that blue slipping was a bad idea and it went away. But only the Democrats play political games and use procedural tricks to obstruct the nomination process, right? And of course, even if they did do this, I'm sure they did it only because they were taking a principled stand against those evil judicial activists, and never mind all the times they have themselves encouraged judicial activism when it leads to results they like.

It's time to take off the partisan rose-colored glasses and see the reality that judicial nominees are always a target for hypocritical political gamesmanship, by both parties regardless of who is in charge. The only thing that changes is that they exchange scripts depending on whether they're the majority or minority party and who is in the White House. When a Democrat was doing the nominating, Bill Frist would attempt to filibuster judges he didn't like even if he was part of a small minority that couldn't avoid a cloture vote. When a Republican is doing the nominating, and a much larger minority with the ability to keep a filibuster going and reject cloture votes is doing the same thing, it's an abomination that must end immediately. When a Democrat is in office, Bob Smith could get on the floor of the congress and say:

"Don't pontificate on the floor of the Senate and tell me that somehow I am violating the Constitution of the United States of America by blocking a judge or filibustering a judge that I don't think deserves to be on the circuit court ... . That is my responsibility. That is my advice and consent role, and I intend to exercise it."

Now that a Republican is in office and sending up nominees, filibusters are evil and contrary to justice, mom and apple pie. When a Republican is in office, using procedural tricks to block 10 judges from getting an up or down vote, even while approving 194 others, is an outrageous abuse of power. When a Democrat was in office, denying 65 judges even a hearing, much less an up or down vote, well that was just following their mythical electoral mandate. It's a hypocritical, dishonest shell game and it's played by both parties.

Let me add to that last response. Throughout the 1990s, when Republicans were obstructing dozens of Clinton nominees, the Democrats were howling in outrage as well. They were shocked at the unprecedented obstructionism of the Republicans, and were beside themselves that the Republicans would dare to play political games with judicial nominees. They accused them of causing a vacancy crisis on the Federal bench (the vacancy rate was twice what it is currently) that would deny to American citizens their right to petition the government for a redress of grievances. They could work up a self-righteous rant just as compelling as Frist does today about the "unprecedented" obstructionism that was doing so much obvious damage to our sacred principles. It was a crock then and it still is today. All they do is exchange scripts every few years, each taking the opposite position of the one they took when their party was in control, and each feigning shock and outrage at the behavior of the other side. Only the blindly partisan will fall for this rhetoric more than once by either party.

I'll happily raise my hand and agree with Ed fully on that last point.

www.confirmthem.com says that BaltaBoy is all wet on his "facts".

Just, fwiw, in 1968, the Republicans successfully filibustered the nomination of Abe Fortas to become Chief Justice of the Supreme Court. Just more evidence that the "unprecedented" language being thrown about is a con.

lunatics like Janice Rogers Brown

Phil, perhaps there's something I don't know about Brown, but most of what I've seen, I've liked. I know she leans strongly libertarian, dissented in avis, etc - but these are all good things, I believe, and they don't make her a lunatic.

What has she done to desrve the moniker from a reasonable guy such as yourself? Because I'm inclined to think that if you have a reason for thinking she's nutty, then I just haven't read the correct material on her.

I'd still like to hear philosopher's answer, but I suppose it pays to read onward before responding.

She believes that "FDR was a socialist, that minimum-wage regulations should be outlawed, that the New Deal was a "socialist revolution,"

That all seems rather un-looney to me. But we could argue for days about *that*.

that Social Security should be equated with "cannibalism",

Well, I don't know about that. Do you have a citation?

and that she is a combatant in a religous war against non-believers."

Well, for a religious combatant, she's taken strikingly limited gov't positions on things, and not just where it is convenient for the zealot to do so.

She has twice received an "Unqualified" rating from the California judicial evaluation committee. She currently has the American Bar association's lowest "passing' rating.

This doesn't demonstrate her lunacy to me. Now, maybe she is activist in ignoring tons of precedent and such, and if so, then to heck with her, too. But I have no reason to believe she is based on what I have seen about her and until I see something to change my mind, I won't. (I.e., until I see something that demonstrates to me that the CA judicial evaluation committee and whatnot dislike her for her abilities on the bench, not because she runs against the partisan grain.)

The beliefs of Janice Brown:

"My grandparents’ generation thought being on the government dole was disgraceful, a blight on the family’s honor. Today’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much “free” stuff as the political system will permit them to extract...Big government is...[t]he drug of choice for multinational corporations and single moms, for regulated industries and rugged Midwestern farmers, and militant senior citizens." [IFJ speech at 2,3]

"We are heirs to a mind-numbing bureaucracy; subject to a level of legalization that cannot avoid being arbitrary, capricious, and discriminatory. What other outcome is possible in a society in which no adult can wake up, go about their business, and return to their homes without breaking several laws? There are of course many reasons for our present difficulties, but some of our troubles can be laid at the feet of that most innocuous branch – the judiciary…From the 1960’s onward, we have witnessed the rise of the judge militant." [Speech to California Lincoln Club Libertarian Law Council (Dec. 11, 1997)(“Libertarian speech”) at 5-6, 9]

"The United States Supreme Court, however, began in the 1940s to incorporate the Bill of Rights into the 14th Amendment…The historical evidence supporting what the Supreme Court did here is pretty sketchy…The argument on the other side is pretty overwhelming that it’s probably not incorporated." [“Beyond the Abyss: Restoring Religion on the Public Square,” Speech to Pepperdine Bible Lectureship in 1999]

"In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the “constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong." [Federalist speech at 8]

Nick, I think Jim S has basically beaten me to the punch in responding to your question. There's a whole lot more at
http://www.pfaw.org/pfaw/dfiles/file_229.pdf
and you hardly need to take their word for it -- most of the claims are independently confirmable -- but it's a nice summary.

The more I read from this woman, the more I like her, as long as she rises no higher than an appellate appointment. (Only the third of her passages gives me pause.) There are highly sophisticated arguments one can deploy in favor of generational transfers, for instance, but it's hard for me--as someone who will lose a great deal of money over my lifetime paying for longer-living, pill-popping senior citizens who are getting a great return on their Social Security contributions--to say that her characterization of the AARP is wrong. Similarly, although FDR was not a "socialist," he was one of the nearest thing to a European-style "social democrat" we've ever seen--and the NRA and other New Deal agencies came awful close to moving Roosevelt into the light-pink camp. And, in general, she is right to say Holmes was wrong: The Constitution does presuppose certain forms of economic arrangements that preclude other alternatives.

I would agree with 2 of the 4 statements there, and with the premise but not the conclusion of a third. I fully agree with the first one about all the groups reliant upon big government, and I really like the fact that she put corporations in there as well. Contrary to popular misconception, libertarians tend not to be popular with big business precisely because we would seek to end the massive tax payouts, through subsidies and liability immunities and direct payments, upon which they have come to rely. That distorts the free market every bit as much as tariffs and price controls.

I think the second statement is true in premise but not conclusion. No one could dispute that we are a vastly over-regulated society with a massive bureaucracy that no one fully understands, much less controls. But I think it's wrong to attribute that to judges. Lay the blame firmly at the feet of the legislature on that one, and thank judges for at least occasionally stepping in and reigning in the bureaucracy. I wish they'd do much more of that (come on, Raich decision), but the principal blame lies with the legislatures that created that bureaucracy.

I think the third statement is sheer lunacy. I have no idea what historical evidence she is reading that she thinks is "fairly overwhelming" that suggests the 14th amendment was not intended to incorporate the bill of rights against the states, but she is flat wrong on this one. You can see dozens and dozens of quotes from those who framed the amendment that say quite bluntly that the purpose of the 14th amendment was to apply the bill of rights to the states here.

The fourth statement I mostly agree with. So if anything, those statements made me more likely to support her nomination than to oppose it. Like Paul, I'd say that I'd be fine with her on the bench as long as it doesn't go above the appeals court level. I won't put anyone who rejects incorporation completely on the Supreme Court. I can handle Thomas' argument that the Establishment Clause is not incorporated; I disagree with him, but there's at least a minimally plausible argument for it. There is no such argument against incorporation in general.

So, my philosophy must be based on materials provided by People For The American Way? Ed must have missed Raoul Berger's influencial book that makes the argument which Ed says does not exist. His neighbor, Epstein, also makes that argument.

While Brown was smart enough to not show up at "Justice Sunday" the same day she gave a talk to a group of Catholic legal professionals and seemed to be echoing all of their themes. See this:

http://news.yahoo.com/s/latimests/faithwarragesinusjudgesays

THAT one bothers me more than the others (except perhaps the one on the Bill of Rights and the 14th Amendment).

Anonymous is foolish enough to assume that the People for the American Way is the only place to find and confirm this information. Of course I won't find it on Powerlines or the RNC web site but that's no surprise.

I've noticed that our anonymous troll has a penchant for two things - asking weird and irrelevant questions (no one ever mentioned what his philosophy should be based on) and making vague appeals to authority of the "so and so disagrees with you" variety. As if the mere mention of someone's name who disagreed with an argument defeats the argument. Let me know when you want to actually make a substantive claim that can be debated. The fact that Raoul Berger wrote a book disagreeing with me once is not an argument that can be engaged, it's just an allusion to a possible source of arguments. I will stick with the substantive argument that the history of the 14th amendment clearly indicates that it was intended to apply the bill of rights to the states, and I provided a link to a very long paper full of dozens of quotations from the legislative history of the amendment to support that contention, and I'll be happy to defend that position. Appeals to authority, unaccompanied by any substantive argument, mean nothing.

Paul and Ed beat me to the punch - barring the third quote listed, I tend to think Brown is on perfectly safe groud, and I certainly don't think she's a lunatic.

I won't accuse anyone here of calling a judicial nominee names because they disagree with her interpretations of the law rather that thinking she's an unethical person, in fact insane, etc, but...

Who is Jon Roland and why would anyone trust his selective and unhistorical selections from the record?
Judicial activism is where judge's decisions cannot plausibly be related to the Constitution they are purportedly enforcing. Ed, that is a definition-so cease the claim that none exist.
Government By Judiciary-The Transformation of the Fourteenth Amendment, by Raoul Berger is available from Liberty Fund/Liberty Books, perhaps online. It has a foreword by Forrest McDonald who I think is a Libertarian or was.
How does one ascertain plausibility? Can the decision pass the laugh test? Can it pass the smell test? Is it intellible to real minds or just legal ones?

I tend to agree that appeal to authority is not the strongest form of argument but if we accept Justinian's prohibition of it then your incorporation argument could easily go down the drain-see Professor Epstein-also Libertarian. It would be interesting to see her statement in full. I would wager that Berger is cited in it as he was the recognized authority. Perhaps your source is also cited but no one that I know of has ever heard of him.

Will anyone accept a wager that Janice Brown's speech (it is only a speech,by the way)to the Pepperdine Bible Club)is mis-characterized by PAW (the group that is the source for all of the comments I have notice on Google)? All we would need is a link to the transcribed speech to set against the half-wits.

Anonymous wrote:

Who is Jon Roland and why would anyone trust his selective and unhistorical selections from the record?

You really do seem stuck on appeals to authority rather than on making substantive arguments. Can you demonstrate that he is using "selective and unhistorical selections" in his essay? Then by all means, please do so. If you can't, then you are simply combining an unsupported assertion with an appeal to authority for a double shot of logical fallacies.

Judicial activism is where judge's decisions cannot plausibly be related to the Constitution they are purportedly enforcing. Ed, that is a definition-so cease the claim that none exist.

That's the loosest definition I've ever heard. I doubt it could fit any situation whatsoever. I doubt you can name a decision that can't be "plausibly related to the Constitution". At which point, you will no doubt begin moving the goalposts and arguing over the definition of "plausibly". Your definition is vague and subjective, which is precisely my point. There is no consistent, coherent and objective definition of the phrase.

Government By Judiciary-The Transformation of the Fourteenth Amendment, by Raoul Berger is available from Liberty Fund/Liberty Books, perhaps online. It has a foreword by Forrest McDonald who I think is a Libertarian or was.

Great, so by all means please bring up a substantive argument in the book and we can discuss it. Merely citing an authority is as irrelevant today as it was yesterday. I can just as easily cite Randy Barnett's book Restoring the Lost Constitution. But without actually bringing up substantive arguments contained therein, it's not an argument it's just a reference to someone who has an argument.

I tend to agree that appeal to authority is not the strongest form of argument but if we accept Justinian's prohibition of it then your incorporation argument could easily go down the drain-see Professor Epstein-also Libertarian.

Appeals to authority are what one uses when they can't use substantive arguments. You can cite authorities for your position, and I can cite authorities for mine. The question is, who is correct? That can only be decided by making actual arguments and presenting evidence for those arguments, something you seem entirely unprepared or unwilling to do.

Most comment sections have limitations on words. I see where your authority for the 14th relies heavily on the other old KKK'er, Justice Black, to whom we owe the error filled history that has led a couple of generations to think that the wall of separation was in the Constitution. I've tried to read Randy's book that you cite. It is very difficult reading. If you don't like the definition, take it up with Bork. Substance? When did Jefferson write the letter? What did Jefferson have to do with the Constitution (he was in Paris)? What plausible reason would Black then cite(in Everson, but is typical of his lack of mooring to the Constitution)Jefferson for?
We don't know who Jon Roland is but we are willing to cite him?

It took awhile but http://oll.libertyfund.org/indexold.html will get you Berger's online book! I think, beginning at page 155, you will find the argument you seek and do pay attention to the footnotes. Of course, the whole book is worth your time. N.B. Bookmark the site because it is a wonderful and useful resource. Justice Black, as most of us know, really, was a terrible hack and NOT PLAUSIBLE except to the undereducated.

Anonymous wrote:

Most comment sections have limitations on words.

Um. Okay. I'm sure there's some reason why you said that, but I can't for the life of me figure out what it might be. Is that your excuse for not offering substantive arguments and only offering appeals to authority? If so, that's quite amusing.

I see where your authority for the 14th relies heavily on the other old KKK'er, Justice Black, to whom we owe the error filled history that has led a couple of generations to think that the wall of separation was in the Constitution.

He does? Well let's take a look. Click here to see the essay that I cited and let's see whether he "relies heavily" on Hugo Black. He mentions Black exactly once, right near the beginning, where he mentions in passing Black's dissent in the Adamson case, at the end of a list of cases dealing with the question of incorporation. He only notes that it is "interesting" because it contains an appendix which cites some of the same historical sources that this essay cites. And this single mention of a single Black opinion in passing is enough to qualify for him "relying heavily" on Black? That's quite absurd. It's even more absurd that you're mentioning this only as pretext for making two entirely irrelevant arguments, both of which merely add to the growing list of logical fallacies you've committed in this exchange: A) an implied ad hominem (Roland mentions Black, Black was once a KKK member, therefore....what? The illogical conclusion goes unspoken, of course) and B) a change of subject to an entirely different issue on which you think Black was wrong. To refresh your memory, the subject at issue here is the doctrine of incorporation, not the separation of church and state.

I've tried to read Randy's book that you cite. It is very difficult reading.

Gosh, I'm sorry. I certainly wouldn't want to burden you so unfairly, but serious scholarship is often difficult reading. Still, you have missed the point of my mentioning the book. The point was that merely citing an authority, without actually making a substantive argument, is pointless. We can each cite an authority by name and book. Who is right? Well, that's the obvious question. You've made no attempt whatsoever to actually support your position here, you've only engaged in a steady stream of pointless arguments that would make a pretty good case study in the use of logical fallacies.

If you don't like the definition, take it up with Bork.

Wow, this is like a perfect double axel of logical fallacies - you gave a vague and subjective definition in response to the demand for a specific and objective one (fallacy number one); I pointed out why it's vague and subjective, thus making a substantive argument for why that definition doesn't add any clarity to the subject; and you respond with yet another appeal to authority (fallacy #2) without bothering to answer the actual argument you're ostensibly responding to or even to reference anything that authority actually says. Truly, you have managed to turn dodging an issue into an art form.

Substance? When did Jefferson write the letter? What did Jefferson have to do with the Constitution (he was in Paris)? What plausible reason would Black then cite(in Everson, but is typical of his lack of mooring to the Constitution)Jefferson for?

And this has something to do with the doctrine of incorporation and the purpose of the 14th amendment? Yet another attempt to change the subject in lieu of making a logical argument on the issue at hand. This is quite a virtuoso display of irrationality, I have to say. Have you considered turning pro?

We don't know who Jon Roland is but we are willing to cite him?

Not sure who "we" is. I know who Jon Roland is. He's the founder of the Constitution Society. More importantly, I know the arguments and evidence he cites, which make a powerful case for his position and mine. It's the quality of the arguments and evidence that matters, isn't it? Does a logical and well supported position suddenly become less so if it's made by someone you disapprove of? Does an illogical and ill supported position become more so if it is made by someone with the proper credentials? All of this, of course, is simply your way of dodging the substantive issue of the proper meaning of the 14th amendment. So to sum up your arguments here for why Roland is wrong:

1. I don't know who he is, therefore he's wrong.

2. He mentions Hugo Black and Black was a member of the KKK as a young man, therefore Roland is wrong. The dozens and dozens of statements that he cites from the men who wrote the 14th amendment don't matter because someone else he cites in passing was once a member of the KKK.

3. Black was wrong on an entirely different issue once, therefore Roland is wrong. And again, the dozens and dozens of statements that he cites from the men who wrote the 14th amendment don't matter because someone else he cites in passing was wrong on something entirely unrelated.

4. Did I mention that I don't know who Roland is?

5. My appeals to authority are obviously true, though I don't bother to cite any substantive argument they make or the evidence they cite for that position; your appeals to authority are irrelevant because I found them "difficult reading."

I'm beginning to understand why you post comments anonymously. I wouldn't want to take credit for such silly arguments either.

Anonymous wrote:

It took awhile but http://oll.libertyfund.org/indexold.html will get you Berger's online book! I think, beginning at page 155, you will find the argument you seek and do pay attention to the footnotes. Of course, the whole book is worth your time. N.B. Bookmark the site because it is a wonderful and useful resource.

Certainly it's a wonderful source to read Berger's views, which I will certainly do, and I thank you for it. But you still haven't actually made an argument here other than an appeal to authority. Let me know when you wish to and we can discuss something of substance.

Justice Black, as most of us know, really, was a terrible hack and NOT PLAUSIBLE except to the undereducated.

This is still completely irrelevant, and it's an incredibly stupid argument - "You cited an author who mentioned Black, I think Black is wrong on things, therefore you're wrong." If you wrote something that stupid in a junior high school class, you'd get flunked. Surely you can do better than that as, presumably, an educated adult. Make an argument, for crying out loud, an actual substantive argument that refers to evidence or deduction in favor of your position. If you can't, then you're just pissing in the wind.

"Invocation of the Bill of Rights against the States is of fairly recent origin, whether it be regarded within the older framework of "adoption" or the more recent theory of "incorporation". That would be the topic sentence on page 155. It is also of import to recognize that Judicial Review is not the same thing as Judicial Supremacy. When you take the long view of the Frog in the hot water Bork's definition will form the basis of any argument over judicial activism-the key word being plausible. It will cost you a couple of minutes of reading 155 ff to see why Mr. KKK comes under attack.

But you haven't ever defined judicial activism as anything more than "I know it when I see it."

That's not true, Ed, and I resent that you are once again misrepresenting my arguments. The crux of judicial activism is judges replacing the law with their personal opinions and covering it with a fig leaf of precedent or a Constitutional "penumbra," etc. Yes, for an outsider it's nearly impossible to "prove" in the way you demand, because there is a degree of subjectivity in jurisprudence. That doesn't mean it doesn't exist.

And you haven't addressed the numerous examples where the same republicans who complain about judicial activism have pushed for more activism

I thought it should be obvious. I agree that there are hypocrites in the Congress. But I've personally stated (in other comment threads) that while I thought the outcome in the Schiavo case was unjust, that was not due to any failure by the Florida courts to interpret the law.

you continue to claim that only the Democrats are interested in results-oriented judging, while the Republicans are only interested in principled jurisprudence

Bullshit, Ed. Show me where I've said that. I did say earlier in this thread:

Republicans opposed some of Clinton's nominees whom they considered activist judges, and for some other reasons as well. Democrats are opposing Bush's nominees for the exact same reasons

And if that's not a clear enough statement that I recognize politics are in play on both sides, let me say it now: most politicians on either side will cheer for court rulings which support their agenda, regardless of what kind of reasoning the court uses. However, that does not change my assertion that...

1) A distressing number of judges are behaving as activists, as defined above (and these activist rulings currently favor liberal causes by at least a 2:1 margin).

2) Liberals know just as well as conservatives that this is happening, as evidenced by the way they are opposing Bush's nominees tooth-and-nail.

3) Any liberal who denies that judicial activism is real, yet opposes any qualified Bush nominee, is a hypocrite.

Eric wrote:

That's not true, Ed, and I resent that you are once again misrepresenting my arguments. The crux of judicial activism is judges replacing the law with their personal opinions and covering it with a fig leaf of precedent or a Constitutional "penumbra," etc. Yes, for an outsider it's nearly impossible to "prove" in the way you demand, because there is a degree of subjectivity in jurisprudence. That doesn't mean it doesn't exist.

Which means precisely what I said, that you can't define it but you know it when you see it. I'm not asking for "proof", I'm asking for a consistent and coherent definition. Neither you nor anyone else has provided anything even approaching one. First you said that engaging in penumbral reasoning was "judicial activism". I pointed out that that penumbral reasoning is not only acceptable as a form of constitutional interpretation, it's an absolutely necessary one. So then you changed to arguing that penumbral reasoning was sometimes judicial activism and sometimes not, but you've never provided any criteria for determining when it is and when it isn't. Now you're arguing that it's when a judge's personal opinion intrudes on his decision. But how on earth does one discern when this is the case? Virtually never does a ruling even refer to the personal opinions of the judge writing the decision, so we're left with this subjective notion that it's judicial activism whenever you think they've done so. And that just proves my point all the more that there is no coherent definition to be found here, certainly not one that can be applied consistently.

1) A distressing number of judges are behaving as activists, as defined above (and these activist rulings currently favor liberal causes by at least a 2:1 margin).

According to what criteria for determining judicial activism? If it's your latest one, then please provide some examples of judges using "personal opinion" to replace the law.

2) Liberals know just as well as conservatives that this is happening, as evidenced by the way they are opposing Bush's nominees tooth-and-nail.

This is truly a bizarre argument. The Republicans claim that they are just trying to rid the bench of "judicial activists" (despite the numerous examples I have given, and you have ignored, of those same Republicans wanting MORE judicial activism as long as it leads to the result they want). You agree with them, and think that the fact that Democrats oppose many of the Republicans' choices for the bench means they're admitting that the Republicans are right. But remember, both sides want judicial activism as long as it serves their goals, as I've shown with numerous examples that have gone completely unanswered.

If they're really just interested in preventing judges from replacing the law with their personal opinion, then why on earth would they be nominating Patricia Owen, who has sought to do precisely that in wanting to overturn a law that wasn't even being challenged in the case before her? If they're really just interested in preventing "judicial activism", then why did President Bush go to court in 2004 to try to get a judge to ban 527 organizations from taking out TV ads, which the campaign finance reform bill explicitly did not do (and which he himself had argued only 4 years earlier was unconstitutional)? If they're really only interested in judges following the letter of the law, then why on earth have they spent the last few months savaging George Greer, who did precisely what they claim to support?

Your premise is simply false. The Republicans are not the least bit opposed to judicial activism by any coherent definition, they are opposed to judges ruling in ways they disagree with and they label all such instances as "judicial activism" even if doing so contradicts their rhetoric in that regard. And that has been my point all along, that the way this phrase is used is incoherent and often hypocritical.

3) Any liberal who denies that judicial activism is real, yet opposes any qualified Bush nominee, is a hypocrite.

There's just so much presumption in this. First, any nominee is "qualified". Second, I think I've shown pretty conclusively (and without any counter-argument on any of the examples I've given, which I think speaks volumes) that there is more than enough hypocrisy on both sides.

Tell me again why Robert Bork is not on the Supreme Court.

We have approached the incorporation matter because Ed characterized her purported statement concerning it as being looney. When a scholar like Epstein makes the same point and more he is characterized as not being mainstream. Exactly. He would prefer to be correct and if being correct invalidates a number of illegal legislative acts then so be it. Hanging one's hat on a biased "source" like PAW who could be trusted to indulge in selective and ignorant quotation doesn't seem wise to me. It is alleged that there are many sources for the same information. If so, link to the address given to the Pepperdine Bible folks and let's see who is being misled. Let's not pretend that People for the American Way are in any way honest.

According to what criteria for determining judicial activism? If it's your latest one...

Way to be a tendentious jerk, Ed. I have never changed my definition of judicial activism. Rather, I have done my best to be as specific as possible, and I find it very annoying that you would attack me for doing so. I do think that penumbral reasoning raises a red flag of a possible activist court action. But as I've been saying for some time now, the crux is when a judge starts with his/her personal opinion and then sets about constructing a rationale to justify it.

You keep saying that this is a meritless criticism because it's subjective. But let's apply that same reasoning to something liberals often complain about: predatory lending practices. We had this discussion recently on this blog. Could anyone give exact criteria of what interest rate and/or other practices constitute "usury"? I doubt it. But would you say this invalidates complaints about high interest rates? If so, I suppose we simply have a fundamental difference in philosophy.

despite the numerous examples I have given, and you have ignored, of those same Republicans wanting MORE judicial activism

I haven't ignored anything, Ed. Did you actually read my last comment? As you say, there is hypocrisy on both sides.

The Republicans are not the least bit opposed to judicial activism by any coherent definition

Did I ever say they were? But I am opposed to it, even when--as in the Schiavo case--it might bring about an outcome which I'd prefer.

But remember, both sides want judicial activism as long as it serves their goals

Great Scott! In trying to refute me, you've just stumbled upon the very point I was trying to make with this post. Or something close to it, anyway. The pitched battle over judicial nominations indicates that the courts have become major players in issues that should be decided by the legislature. Both sides are trying to get "their" judges in, and keep the other side's judges out. The supposedly independent judiciary is becoming a legislative battleground by proxy.

What's strange to me about your take on this is that you now admit that liberals "want judicial activism" but you say that it's not just hypocritical for conservatives to complain about it, but that it's a meaningless complaint.

Anyway, I've had just about enough of this debate, because I'm tired of having to correct misrepresentations of what I've said or argued.

Anonymous wrote:

Tell me again why Robert Bork is not on the Supreme Court.

Because his legal opinions were insane.

We have approached the incorporation matter because Ed characterized her purported statement concerning it as being looney. When a scholar like Epstein makes the same point and more he is characterized as not being mainstream. Exactly. He would prefer to be correct and if being correct invalidates a number of illegal legislative acts then so be it.

Yes, I have characterized a rejection of incorporation as "lunacy" and "far out of the mainstream". I've also supported those claims with arguments and evidence in a long post detailing the legislative history of the 14th amendment. You are of course free to offer counter arguments, but I suspect that instead you will only offer more appeals to authority and well poisoning. Because you appear to be constitutional incapable of actually making a logical argument and supporting it.

Eric Seymour wrote:

Way to be a tendentious jerk, Ed. I have never changed my definition of judicial activism. Rather, I have done my best to be as specific as possible, and I find it very annoying that you would attack me for doing so.

For crying out loud, Eric. Would you really like me to go back over all of the posts on which we have exchanged on this subject and pick out the multiple different definitions you've used? Here's the first one, from a comment found here:

That is a liberal canard. There are plenty of cases where I disagree with the way a court interpreted or applied a law which I would not consider judicial legislation. It is only when a court strikes down a law based on extraconstitutional opinions and "penumbras"--that is what I call "judicial activism."

I pointed out that penumbral reasoning in constitutional interpretation is not only acceptable, it's required, and I posted a long comment that examined the history of penumbral reasoning. I cited Glenn Reynolds' excellent law review article on the subject and many cases that were based upon penumbral reasoning that you would surely not consider in any way to constitute "judicial activism". You replied and agreed with me that your first definition was not accurate in a comment here:

I will grant that some amount of what you might call "penumbral reasoning" is necessary, but I personally think that has gotten way out of hand to the point where judges are substituting their personal philosophies for sound Constitutional interpretation. It is a question of degree, then, not of type. But that does not mean that any objections are invalid.

I then posted a long essay on constitutional interpretation and legitimate authority and you replied again in the comments there. I agreed to some extent with your rephrased definition, saying:

I think we're on to something here, but it needs to be stated much more objectively in order to have any real meaning. As it is, it sounds very much like Justice Stewart's famous statement about pornography, that he could not define it but "I know it when I see it." I do agree with you that it is a question of degree, and clearly there are instances where a ruling seems entirely divorced from the text. But we have to have some criteria for distinguishing between legitimate and illegitimate assertions of authority...

Once we can agree, as it seems we have, that (at least some) unenumerated rights are real, and agree, as it seems we have, that we must therefore have some criteria for distinguishing between legitimate authority and illegitimate authority, then we can move on to the question of what that criteria should be and compare it to the criteria that the court has used to make that determination in the past and today.

I then went on to discuss the standard conservative arguments for when a judicial ruling is legitimate and when it is not (based upon the state of the law at the time of the Constitution in the states) and critiqued that as a standard. I also went on to examine the Loving decision, which was characterized as "judicial activism" using essentially the same language and arguments you are using over the last few weeks. But surely you would not consider Loving to be an instance of judicial activism today? In your first comment on that thread you said:

I did not mean to imply that any time a court rules based on something other than the explicit text in the Constitution, it is being activist. I was, in fact, stating the opposite: the court actions I find to be activist are always cases where they are striking down a law based on extra-Constitutional rationales.

And I replied:

I still think this needs to be stated in more objective terms. Can you give an example of a ruling with an "extra-Constitutional rationale"? Even Roe v. Wade, which you listed as an example, has a clear rationale that is grounded in the text of the Constitution (via penumbral reasoning), even if it is wrongly applied.

You then flipped back, kind of, to your original definition, saying:

Again I am having problems consistently and clearly putting my opinions into words. I should have said "extra-Constitutional or penumbral rationales." In other words, anything that is not drawn directly from the text of the Constitution. So, Roe v. Wade does qualify.

So now you were back to saying that penumbral reasoning is once again the key to determining "judicial activism", despite the fact that I had already shown why that argument is false and you had agreed with me. And you continued with this additional comment:

And that, I would say, is the essence of judicial activism. The activist judge decides what outcome he/she would like to see, then sets about looking for rationales to support it, be they the actual text of the Constitution or "penumbras" of various clauses. The Constitution (as well as case law) becomes not a standard to follow, but a tool to reach a predetermined end.

I replied to your latest definition by saying:

Okay, but you previously admitted that penumbral reasoning is necessary. It just doesn't seem like you have any well thought out conception of what you oppose, only that you don't like the outcome and therefore it must be wrong. Which is not unique to you. I don't think anyone really has such a coherent conception, even among the leading judicial conservatives.

And I pointed out that every judge to some extent judges based upon the outcome they would like, and I gave examples of Scalia doing this (logically deducing that he was substituting personal preference for the law because his reasoning so obviously contradicted his previous statements on the subject of reading legislative history). You ignored the examples I gave of Scalia engaging in exactly the sort of thing you are objecting to despite the fact that he is one of the leading people who complains about judicial activism, and instead you went back to your second definition that sometimes penumbral reasoning indicates activism and sometimes it doesn't:

No, as I've said several times and formulated most strongly in my last comment, what I oppose is judges deciding outcomes based on their personal philosophies and then finding "excuses" to rule that way. Of course, it's practically impossible to prove this is what happened in a case by reading the decision. But I think when someone is relying on penumbras it should send up a red flag. Sometimes penumbras are valid, sometimes they're not.

But this of course still left us without any coherent definition of judicial activism, it only pushes the problem one step back. The obvious question then is, what is the criteria by which to determine when penumbral reasoning is good and when it is "judicial activism":

So again, when are they valid and when are they not? This just gets us back to the position I've stated many times, that this is just a catchphrase that means "judges doing things I don't like". Are they valid when you agree with the outcome and invalid when you don't? Let's take Roe v Wade as an example. You believe this case was classic "judicial activism", and you may be right, but if you are it's not on the basis of poor penumbral reasoning. I think a good argument can be made that the application of the right to privacy was flawed, but the decision was not wrong because it recognized the same right to privacy, reached through penumbral reasoning, in Griswold.

You ignored my argument about Roe v. Wade, which was after all your only specific example of judicial activism, and instead just said that you think judicial activism is somethign more specific even if it can't be proved. You then wrote your own post on the subject in which you still did not offer a coherent definition of judicial activism. You seemed then to want to breezily dismiss my arguments as some sort of debater's trick and fall back on some sort of instinctive knowledge of the nature of judicial activism, but again without defining it:

A clever debater or pundit has many tools in his or her repertoire. In several posts and the corresponding comment sections, Ed Brayton has argued that the term "judicial activism" is used very loosely by rank-and-file conservatives and that even a serious analysis fails to find an objective measure by which to distinguish it. Therefore, Ed seems to imply that there is no judicial activism, or that any cases are isolated and most are overturned on appeal. "These aren't the droids you're looking for..."

But conservatives sense, almost instincively, that something is afoot. When judges more and more often invoke "evolving standards" and supposed "national consensus" in their rulings, there is a distinct odor of personal philosophy emanating from courtrooms around the country.

And you cited similar rhetoric from Thomas Sowell and Stephen Bainbridge, but again without either of them giving anything approaching a coherent definition of the phrase. I, of course, pointed this out::

I haven't actually implied that there is no judicial activism. What I've implied is that no one has yet come up with a consistent definition of it that is applicable in the real world. And this post gets us no closer to such a definition. Sowell's essay, if anything, takes us further from it. But the implication here is that I'm engaging in some sort of debater's strategy or "Jedi mind trick" to cover up the lack of support for my argument. I would suggest that the opposite is true. My position is in fact easily shown to be wrong. All one has to do is provide a coherent and consistent definition of judicial activism. No one has yet done that.

The problem with defining "judicial activism" is that there is no middle ground. It can only be defined either too broadly, as when it is used to mean "courts overruling legislative acts", too broad because everyone has some legislative acts that they believe are correctly overturned by the courts. Or it can be defined very narrowly but unprovably, as when it is defined as "when a judge uses his personal opinions to reach a desired result." When you try and apply this to the real world, you find out just how inadequate it is. Was Griswold v. Connecticut an example of "judicial activism", as Bork claims it was? Nowhere in the opinion does Justice Douglas refer to his personal opinions at all, and the decision is based upon the same type of reasoning from general principles that is present in dozens of other cases that not even Bork thinks are controversial. He cites case after case that not only supports this course of reasoning, but also supports the specific application of it in terms of establishing a general right to privacy. If this is a case of "judicial activism", as so many conservatives claim, there is not a shred of evidence for that argument. And the fact that they "sense, almost instinctively" that it just must be activist only supports my contention that what is really going on here is the ritual attachment of a meaningless phrase to any ruling that they disagree with.

I then went on in a very long comment to provide a specific critique of the arguments you cite from Sowell and Bainbridge and concluded:

Anyway, on the general issue of whether judicial activism is a consistent and coherent notion, all one has to do to prove me wrong is to provide such a definition and apply it consistently to real world cases. Eric has not done so, but given that he has no background in law that is hardly surprising nor is it a mark against him. But neither has Sowell, or Scalia, or Bork, or anyone else who tosses the phrase around as though it really means something. And vague references to one's "instinctive sense" of what it means rather than an objective and applicable definition only make my argument that much stronger.

You had no response to any of that. As can be seen by this cursory examination of the history of our exchanges over "judicial activism", you have indeed offered multiple contradictory definitions of the phrase and then, when unable to provide the coherent definition that reason would require, you simply fell back on the "I know it when I see it" position. So when I refer to your "latest definition" (judges replacing law with personal opinions), it is hardly reasonable to respond by calling me a jerk. It is quite clear that you have offered multiple definitions precisely because you don't have any coherent conception of what you are opposing. And that has been my point all along. You still haven't provided any criteria upon which one could determine when a judge has replaced law with his personal opinion, and I've given multiple examples on both sides of the issue:

A. Rulings that conservatives typically call "judicial activism" in which there is no hint of a judge's personal decision but is much well-argued reliance on legal reasoning and precedent (like Douglas' opinion in Griswold); and,

B. Rulings in which the very same people who criticize other judges for substituting personal opinion for sound interpretation have engaged in that very same thing themselves as evidenced by their inconsistent reasoning (Scalia's dissent in Edwards).

I don't think pointing out what should be incredibly obvious to everyone at this point - that you simply have no idea what "judicial activism" is yet continue to throw the phrase around as though you did - makes me a "tendentious jerk". But responding to a calm and reasoned argument with name calling might well qualify as such. You owe me an apology, I believe.

No, Ed. I believe if anyone owes an apology, it is you.

Frankly, I consider it a major affront in a debate to misrepresent what someone is saying. And you've done so repeatedly in two areas. First, by claiming that I've been flip-flopping on my definition of judicial activism, and second, by claiming that I think only Democrats favor judicial activism and Republicans only want principled jurisprudence.

As to the second point, you've never shown me where I said that. Which is because I never did. So, if you'd like to retract that I'll accept your retraction.

As to the first, thank you for collecting the various things I've said about judicial activism. My position, which I've explained from different angles and tried to clarify, is this:

The basic problem of judicial activism is when judges start from their personal philosophy and then find excuses to rule that way. Sometimes they may find a solid textual reason to rule that way, but sometimes they rely on extra-Constitutional sources and penumbras. Therefore, when a judge rules based on the latter, it should send up a red flag. And when a judge is frequently using such rationales and coming up with very novel interpretations of the law, I think it's fair to criticize him/her as an activist judge.

Now if you'll compare that to any of my former statements, I think you'll find it completely consistent, just as my former statements are consistent with each other. In some cases, I started from how an opinion is written, and in some cases I started from the judge's motive. Two sides of the same coin. Perhaps you still think my argument fails to be consistent in some way. Fine, that's a philosophical critique, we can agree to disagree. But I think it's highly unfair to accuse me of flip-flopping.

Eric, I showed you exactly where you offered multiple definitions. I quoted your words exactly and they are not the least bit consistent. The fact is that you haven't the foggiest idea what judicial activism is, you just think you know "instinctively" what it is. Which just proves the point I've been making all along, that you - like everyone else who invokes it - only uses it to mean "rulings I don't like". You tried for 3 weeks to come up with a coherent and consistent definition and you ended up falling back on a vague and subjective definition involving a judge's "motive", which is something you can't possibly know in any circumstance unless you've had a private conversation with the judge in question. So we're still left where we started, with no coherent definition at all. I have argued this point vigorously, but always politely. I've given you every benefit of the doubt along the way and gone out of my way to be collegial, as anyone reading these exchanges would agree. The fact that you then felt the need to engage in name-calling, I think, demonstrates both the illogical nature of your position and the emotional attachment you have to it that clearly clouds your perceptions. When you couldn't dispute my arguments with reason, you resorted to insults. Game, set, match. Goodbye.

Well, that Robert Bork was or is insane sure isn't much of an argument. Would you say the same thing of Sidney Hook? He wrote a book called, Philosophy and Public Policy. Included in it is a very good essay entitled Law and Anarchy. I recommend it to you and to others who might care about the intersection between real philosophy and legal philosophy. Judicial activism, if you care for another definition, is merely our old enemy "the end justifies the means" decked out in legalese. Its imposition by the ignorant and the arrogant is judicial activism. Too, it seems strange that Ed mews about a term that has been in common use for decades. Tell us some more about Bork's insanity if you can back that claim up with anything more than an assertation.

Pepperdine has no record or transcript of the Janice Brown speech referenced by Jim S, Philo, and Ed. They claim it is available. Produce the body!

Perhaps our anonymous troll can be excused for his reading comprehension failures. I haven't referenced any speech; I had said speech referenced for me. And I have replied quite reasonably that if the excerpts reflect her real views, I find them disturbing. I've also written at some length about the possibility that they are out of context and that her view may well be far more nuanced than those quotes make it appear. You really must break out of this childishly simplistic view of the world you seem to have where anyone who takes even an entirely moderate and reasonable position that you don't like must be branded a liar and attacked.

Ed,

You can claim that my definition isn't coherent or objective, but I have not offered multiple definitions or changed my argument in any way, other than good-faith efforts to be as specific as possible. Any reasonable person can see that by reading my quotes which you collected above, which is why I thanked you for collecting them.

I don't think it is collegial at all to repeatedly accuse someone of flip-flopping when that is clearly not (or at the very least, not clearly) the case. Nor is it collegial to build the kind of straw-man argument I've called you on multiple times and you've yet to retract--your claim that I think only Democrats want judicial activism and Republicans only want princiled jurisprudence. I never said that. When you continued to insist on tackling such straw men and inserted various levels of scorn and sarcasm in your comments, I responded by calling you a jerk. Since you haven't retracted any of your statements, I stand by mine.

You can declare yourself the winner of this debate until your face turns blue, but the few people still reading this thread will decide for themselves. I do agree with you on one thing--nothing constructive can come out of arguing this any further. Goodbye.

Eric Seymore wrote:

Nor is it collegial to build the kind of straw-man argument I've called you on multiple times and you've yet to retract--your claim that I think only Democrats want judicial activism and Republicans only want princiled jurisprudence. I never said that.

You certainly did. You have repeatedly said that the Republicans oppose judges because they're "judicial activists" (whatever that is), while the Democrats only oppose the Republicans over judges because they want "judicial activists" (whatever that is) because "judicial activism" (whatever that is) leads to results they like. Yet you have ignored the numerous counter-examples I've given of how, using the same fleeting definitions of judicial activism offered by conservatives, they have often pushed for MORE "judicial activism" and are at this very moment trying to push through a judge who is a judicial activist even under the most minimal definition of the term. That disproves your first premise; the fact that the Democrats oppose that activist judge disproves your second premise. And that leads us right back to the argument I've been making all along, and you've been futilely trying to dispute while inadvertantly supporting - that the phrase "judicial activism" only means whatever the speaker wants it to mean at any given time when they oppose a judge's ruling. It's even been used over and over again by the very people that you claim are opposed to it on principle to mean the opposite of what they claim it means. So your entire premise has been disproven time and again.

As far as your claim not to have offered multiple definitions of the term is concerned...all I can say is that I'm baffled that someone can see their own words in black and white and then claim not to have said them. This is cognitive dissonance of the highest rank, clearly. Your first definition was that any ruling based upon "penumbral reasoning" was "judicial activism". Then you agreed that penumbral reasoning was acceptable and even necessary so your new definition was that it was when judges put their own opinions into it. Upon realizing that that definition can never be proven because you can't possibly know a judge's motives, you fell back on a combination of that AND penumbral reasoning. Then you said that penumbral reasoning is just a "red flag" but it doesn't necessarily indicate activism. And then you went back to the "judges putting their opinions in" definition again. This is completely incoherent and contradictory and anyone who has been watching you thrash around and tie yourself into logical knots trying to come up with something even minimally coherent and consistent in these exchanges can see that quite clearly. All you have proven in these exchanges is your utter lack of intellectual honesty and your inability to admit that you really have no idea what you're talking about.

You have repeatedly said that the Republicans oppose judges because they're "judicial activists" ..., while the Democrats only oppose the Republicans over judges because they want "judicial activists"

Wrong, wrong, wrong. You're just wrong, Ed. Here's what I said:

Not at all, Ed. Republicans opposed some of Clinton's nominees whom they considered activist judges, and for some other reasons as well. Democrats are opposing Bush's nominees for the exact same reasons, which exposes as a lie the claim that judicial activism isn't a problem.

I think it's clear that I'm saying that both parties have sought to obstruct nominees who they believe will behave as activists. You made a complementary argument when you said:

But remember, both sides want judicial activism as long as it serves their goals

I agree with this, too. Both sides (as a group) want to get their judges in and keep the other side's judges out because they both realize that judges are becoming increasingly activist. Your argument is that there's no legitimate basis for complaining about judicial activism, but I'm saying that this sort of battling over nominations shows that both sides believe it's happening.

If you're willing to admit you made an incorrect inference about what I was saying regarding Republicans' and Democrats' behavior over judicial nominations, I'm willing to put an end to this argument. But I will not allow you to perpetuate a mischaracterization of what I've been arguing.

One more thing...

all I can say is that I'm baffled that someone can see their own words in black and white and then claim not to have said them

Once again, you are lying about what I've claimed! I didn't claim that I didn't write the words you quoted. I simply disagree that any of those quotes logically contradict each other. In some cases, I was clarifying a previous position that could be read too generally, and in other cases I was describing the same phenomenon from different angles.

Ed, either you are being incredibly sloppy in paraphrasing my arguments or you are the one guilty of intellectual dishonesty.

Okay, now let's look at some other comments you made that make my interpretation quite a reasonable one.

Liberals deny that judicial activism is a problem on the one hand because they know that, on the whole, it serves their agenda right now. But on the other hand, they fight tooth-and-nail against Bush's nominees for fear that the judiciary might swing in a conservative direction.

This of course ignores the fact that judicial activism does not necessarily serve the "liberal agenda" right now, and I gave several examples of conservative judicial activism. Your argument all along has been that Republicans are against judicial activism (which is false) and that liberals are for it, but deny that it exists because it serves their agenda (also false). What's going on here is that you're now pretending to have taken an entirely different position than you really took all along. Not once in any of your previous statements before these last few did you ever even admit that there was such a thing as judicial activism on the part of ostensibly conservative judges. When I brought up numerous examples of such, you ignored them and just kept repeating this "I know it when I see it" mantra. My point all along has been that "judicial activism" is nothing more than a rhetorical catchphrase that is never applied consistently or coherently in the real world. After denying that for the last 3 weeks, you're now erroneously claiming to have been agreeing with that but that your use of the term, despite your shifting and incoherent definitions of it, somehow isn't just empty rhetoric.

Ed, either you are being incredibly sloppy in paraphrasing my arguments or you are the one guilty of intellectual dishonesty.

Or possibility number three, which I think I have shown pretty conclusively to be true by quoting voluminously from your various and contradictory attempts at staking out a consistent position: that the fault lies with the inconsistent and incoherent nature of your answers. You've even admitted at least twice that you can't seem to put into words what you mean, which is a pretty good sign that you just don't have any clear idea what you're talking about. Eric, the bottom line here is that you just don't understand this issue very well. You threw around some loose rhetoric, got called on it, backtracked a couple of times and finally ended up with just a mishmash of contradictory notions laying there with no semblance of a coherent position. The way to avoid that, of course, is not to go off making bold claims on subjects you aren't well informed about. If you're going to take a series of incoherent positions on a subject, it's hardly reasonable to call someone a jerk for pointing out that incoherency. For crying out loud, you can't even accurately paraphrase your own position, much less criticize someone else for not paraphrasing it accurately. There are many areas in which I'm sure I would sound just as bad if I tried to make bold claims about them; hence, I don't make such claims.

Maybe I have been sloppy. But, I did read on one of these threads that the Pepperdine Speech was available from many sources. Would that have been the self-styled Philosopher or Jim S? That speech was supposed to have been evidence that the judge was a loon. So-whoever thinks that on the basis of a PAW FABRICATION (at this point in time) can produce or procure the body (the speech) or they can retract their loon charge and look silly (but more honest). If they cannot produce the speech then let us consider their argument demolished and purchase for them some footware that will fit their webbed feet.

Okay, now let's look at some other comments you made that make my interpretation quite a reasonable one.

If you'd said "assumption," I might have agreed with you. I think your problem in analyzing my arguments is that you assume too much about what I'm saying based on the fact that I'm a conservative Republican. I simply never said that only Democrats want judicial activism and Republicans only want principled jurisprudence. You assumed it.

The situation as I see it is this: Democrats are cheering on judicial activism because, on the whole and despite a few examples of the opposite, it benefits their causes. Most Republicans would gladly cheer on conservative judicial activism, as their actions in the Schiavo case showed. The problem for you is to remember that I'm not "most Republicans."

I'm not going continue debating with you over what I've said or haven't said. My statements are there in black and white. Other people can decide for themselves whether the position I've laid out is coherent and whether I've used "loose rhetoric" or backtracked.

I don't give a whit what you think. I'm tired of playing this game. First you claimed that no consistent definition of "judicial activism" exists. I have tried to formulate one, and with each refinement you offered criticisms. Fair enough. But when I settled on something fairly consistent, if subjective, you suddenly turned my efforts against me, claiming that my definition has been shifting! I find that very unfair.

Perhaps Ed does not wish to "get it"? I can imagine a SC decision in which the written opinion has NO reference to the Constitution. When that occurs could we consider those perps to be judicial activists?

Eric-

Perhaps next time I'll try your "debating tactics" of making claims I can't back up, making increasingly incoherent statements to support those claims, and then call my opponent a jerk when he points out that I'm not making any sense. Up until that point it was a polite, if pointed, disagreement. You decided to cross that line and become rude, not me.