Monday, May 11, 2009

EJ Dionne Redefines Judicisal Activism

EJ Dionne, writing at the Washington Post, projects his own fantasies onto the question of the approval process for a Supreme Court nominee. He argues that the nominating process has always been politicized - not true. And he argues that judicial activism is the hallmark of the right - not only untrue, but insipid and outrageous. Mr. Dionne is attempting to redefine the term "judicial activism."

According to EJ Dionne, the nominating process for appointment to the Supreme Court has always been politicized by both Republican and Democtrat.

To pretend that these judicial fights are about anything other than the court's philosophical direction is a form of willful dishonesty. It's better to be straightforward about the existence of a political struggle over the court than to manufacture phony reasons for opposing a nominee related to "character," "qualifications" or "temperament."

That is palpably false. The nomination process became politicized when the left established as a litmus test that a Judge must acknowledge his obeidiance to Roe v. Wade and that line of cases finding rights that appear nowhere in the test of the Constitution. That very destructive turn of events started under Joe Biden with the hearings for Robert Bork - a hearing so highly politicized as to create of the nominee's name a verb - "borking." Certainly none of the Clinton appointments, Justices Ginsburg or Breyer, were subject to the political circus by the right that surrounded Justices Bork, Thomas, or any of the other Republican appointees since. Indeed, Justice Ginsburg, who has taken some pretty radical positions over the years, sailed through the nominating process - based on her charachter, qualifications and judicial temperament - with almost no Republican dissent. EJ Dionne is simply projecting the left's partisan approach onto Republicans without bothering to check the record.

While Dionne's projection may be false, his next statement is outrageously false:

Today, judicial activism is far more the habit of conservative justices than liberals. The real danger of a conservative Supreme Court is that it will rob Congress and the states of the right to legislate on civil rights, worker rights, the environment and social welfare, just as conservative courts did from the turn of the last century until the late 1930s.

Wow. This is the left's tried and true rhetorical device of redefining words far our of their original meaning. Conservative justices are associated with originalism - the belief that the Constitution should be interpreted to mean what the Founders who drafted the Constitution meant the words to mean at the time. And indeed, if enough Americans disagree with what they wrote at the time, the Constitution provides several methods by which the American people can democratically chage the Constitution. Until the left took over the Court in the last half century, that is how changes were repeatedly made.

But the left of today believes that they can redefine the Constitution to whatever they want it to mean, irregardless of what the Founders meant or, for that matter, whatever the text explicitly says. That is why there is no longer a takings clause prohibition against government taking private property and giving it to another private entity, despite the explicit words of the 5th Amendment. Its why, for the first time in the history, prisoners taken on a battlefield are entitled to court hearing using a habeus petition. Its why there is now a "wall between church and state" that clearly never existed before twentieth century and does not appear in the text of the Constitution. And its why there is today not a state legislated right to abortion, but a Constitutional one founded upon absolutely nothing in the text of the Constitution.

Interestingly, what Dion is referring to is the question of whether the commerce clause has been interpreted by the Supreme Court far beyond the terms of its original meaning. It is also a red herring. Even the most conservative of justices on the Supreme Court has not argued for a wholesale reinterpretation of the commerce clause. It is a very complex issue. But that is certainly not what the disingenuous Mr. Dionne posits. He wants a Supreme Court that will turn us into a far left nation based on the whim of Justices who share Dion's beliefs, irrespective of what our Founders wrote. That is real "judicial activism." And Mr. Dionne is obviously willing to dissimulate to get it.

No comments: