Actions speak louder than words
Liberals usually dispute that judicial activism is real or at least that their agenda is being advanced by it, but their attitude toward Bush’s judicial nominees may betray that they actually know differently. In a recent commentary written in favor of the “nuclear option,” Lowman S. Henry of the Lincoln Institute (a conservative organization in Pennsylvania) noted the following:
The acrimony over judicial appointments has reached a fever pitch precisely because Democrats have lost control of Congress, and likely the Presidency, for the foreseeable future. The judiciary is the last bastion of liberal power at the federal level, and Democrats are prepared to fight to the death to prevent the loss of the third branch of government as well.
After years of seeing “their” judges push their agenda through the courts based largely on personal philosophy (covered by Constitutional fig leaves), liberals understandably fear that the opposite will happen if judges with conservative personal philosophies are appointed. Recent battles over judicial nominations have closely resembled political campaigns–nominees’ views on abortion, affirmative action, and the like have become the central issue rather than the nominees’ fitness to interpret and apply the law. This does not bode well for a branch of government that is supposed to be independent from politics.
These lines of questioning would be irrelevant if we could trust judges to interpret the law without personal bias. That the Democrats are so concerned about judges’ personal philosophies seems to indicate that they know just how far personal biases have invaded jurisprudence.
Anonymous wrote:
Because his legal opinions were insane.
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:
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:
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 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 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:
And I replied:
You then flipped back, kind of, to your original definition, saying:
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:
I replied to your latest definition by saying:
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:
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”:
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:
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 then went on in a very long comment to provide a specific critique of the arguments you cite from Sowell and Bainbridge and concluded:
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:
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.
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.
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.