Originally Posted By DouglasDubh No wonder we have so many bad judges. The consequences should be the last thing emphasized.
Originally Posted By Dabob2 >>No, true. Conservatives often utter the phrase but do not define it well. In fact, you don't until the end here.<< <Since you disagree with Conservatives, you wouldn't be satisfied with their definition. You said you disagreed with my Liberal definition of judicial activist. I'm not surprised. It comes down to who is making the definition.> Ding Ding Ding!! We have a winner! That was my point too. Conservatives tend to think (perhaps you don't) that they have THE definition of "judicial activist" rather than THEIR definition. They try to "own" the term - but that's inherently one-sided. <There is nothing objective about calling someone a judicial activist, but that report pretends to be objective.> It only claims to look at one possible interpretation, and makes pains to point that out. >>You on the other hand, seem to think it IS fine and dandy to do so - unless the law being overturned is one you liked. THEN it's "activism."<< <Not really. I think a law should not be overturned if there is no legal basis for it. I think Liberal judges often "create" a legal basis out of nothing especially to ensure social justice.> I agree they sometimes have. But conservatives have sometimes done the same thing in the name of their pet principles as well. <The overtuning of laws is serious business so it should be based on the law or the will of the people rather than judicial fiat.> "The will of the people" is problematic sometimes, as you have the problem of the "tyranny of the majority" as Madison put it. Most white southerners wanted to uphold Jim Crow laws in the 60's, but finally the courts had to say they were unconstitutional. <I do think it was a self-serving study that implied Conservatives don't know what going on. The analysis was flawed. It is saying.. "Gee, if you really want a better definition, I'll give it to you." It definitely doesn't serve the Conservative agenda with Roberts and Alito in mind.> SHOULD it "serve the conservative agenda?" >>So only hot button issues can inspire activism? That's a definition I've never seen before.<< <You parsed my post without context. What's up with that? I was making a case they maybe their distribution had inherent biases. It was probably an incomplete study.> It admitted so. It looked at one possible definition of activism (overturning previous laws) and one court. Again, it made pains to point out it was only one way to look at things.
Originally Posted By Dabob2 <<You missed the part where I specifically said I was referring not to the SCOTUS decision in Loving, but the state courts that invalidated the ban on interracial marriages before Loving. Were those courts "activist?">> <Yes, I did miss that part. However, the same principle applies.> How so? Examples, please. And you didn't answer the question. Were the state courts that invalidated bans on interracial marriage "activist?"
Originally Posted By cape cod joe Post 288-------Maybe Judge Cashman from Vermont can post about his judicial training when oui's get 6 months and serial rapists get 2 months? I wonder if that's pretty much what law schools teach too?
Originally Posted By DouglasDubh <Were the state courts that invalidated bans on interracial marriage "activist?"> Without knowing the details, I'd guess that some of them probably were.
Originally Posted By DouglasDubh <Making conclusions not supported by facts, Doug?> No. I clearly said I was guessing.
Originally Posted By StillThePassHolder "No. I clearly said I was guessing." About everything? See now, that makes more sense.
Originally Posted By woody >>Conservatives tend to think (perhaps you don't) that they have THE definition of "judicial activist" rather than THEIR definition. They try to "own" the term - but that's inherently one-sided.<< No, I disagree with this assertion. Conservatives have clearly defined the term as they use it. It is no secret about how they define it. They don't like judicial activists who will NOT follow the law in a narrow interpretation. Conservatives want a strict reading of the law. They don't want liberal judges to make law out of personal biases. Some actually do think if conservative judges do the same thing (like make law out of conservative biases), it is equally bad. That is because Conservatives are confident that the Constitution is already self-limiting, which serves their interests. They are also confident their interests can be passed in the Legislature, which makes judicial intervention unnecessary. In the Alito hearing, Kennedy and Biden have showed their preference for liberal judicial activism; however, I don't know if liberals would call them that. They want judges to care about the disadvantaged class and want the judges to rule accordingly.
Originally Posted By Dabob2 <<Were the state courts that invalidated bans on interracial marriage "activist?">> <Without knowing the details, I'd guess that some of them probably were.> Putting aside the "guess" part... how so? Should those courts NOT have invalidated the bans on interracial marriage then?
Originally Posted By DouglasDubh <Should those courts NOT have invalidated the bans on interracial marriage then?> I think invalidating bans on interracial marriage was the right thing to do. However, I am not certain the courts were always the right place to do it. Judges should rule according to the law, not make law based on what they believe is the morally right thing to do. That's the legislature's job.
Originally Posted By Dabob2 >>Conservatives tend to think (perhaps you don't) that they have THE definition of "judicial activist" rather than THEIR definition. They try to "own" the term - but that's inherently one-sided.<< <No, I disagree with this assertion. Conservatives have clearly defined the term as they use it. It is no secret about how they define it.> Okay, but they then try to say their definition is the only correct one. That's where the blind spot comes in. <They don't like judicial activists who will NOT follow the law in a narrow interpretation. Conservatives want a strict reading of the law. They don't want liberal judges to make law out of personal biases.> But (some) are okay with conservative judges doing the same out of their biases. Not saying you are. <Some actually do think if conservative judges do the same thing (like make law out of conservative biases), it is equally bad. That is because Conservatives are confident that the Constitution is already self-limiting, which serves their interests. They are also confident their interests can be passed in the Legislature, which makes judicial intervention unnecessary.> But there are plenty of liberals who like justices to keep to a strict reading of the law as well. And think the constitution backs THEM up. A good example would be the current FISA brouhaha. Liberals are hoping the FISA law, which is pretty clearly written, will be upheld AS written. Some conservatives are hoping a court will take a broader view, saying something like "in a post 9/11 world, that law no longer cuts it." Which would not be strict interpretation of that law, but a re-interpretation of it. <In the Alito hearing, Kennedy and Biden have showed their preference for liberal judicial activism; however, I don't know if liberals would call them that. They want judges to care about the disadvantaged class and want the judges to rule accordingly.> They might look at it as wanting judges to uphold laws as written that protect the rights of individuals particularly as contrasted to government or corporate power. Alito tends to side with that latter, and they may see him interpreting ambiguous laws (and many non-constitutional laws are ambiguous) based on a pro-government or pro-corporate bias. Again, one man's meat is another man's poison.
Originally Posted By Dabob2 <<Should those courts NOT have invalidated the bans on interracial marriage then?>> <I think invalidating bans on interracial marriage was the right thing to do. However, I am not certain the courts were always the right place to do it. Judges should rule according to the law, not make law based on what they believe is the morally right thing to do. That's the legislature's job.> What if the state had its equivalent of the 14th ammendment, saying all citizens of the State of X must be treated equally? Wouldn't that be a case of the court upholding the state constitution?
Originally Posted By DouglasDubh <What if the state had its equivalent of the 14th ammendment, saying all citizens of the State of X must be treated equally? Wouldn't that be a case of the court upholding the state constitution?> It might. Without specifics, it's hard to say.
Originally Posted By Dabob2 <<What if the state had its equivalent of the 14th ammendment, saying all citizens of the State of X must be treated equally? Wouldn't that be a case of the court upholding the state constitution?>> <It might. Without specifics, it's hard to say.> But certainly you can envision a case where a court would overrule a legislative decision (law) on constitutional grounds, and that would not constitute "activism" - right?
Originally Posted By DouglasDubh <But certainly you can envision a case where a court would overrule a legislative decision (law) on constitutional grounds, and that would not constitute "activism" - right?> Sure. That's why I said that wasn't a good definition of what judicial activism is.
Originally Posted By woody "Some conservatives are hoping a court will take a broader view, saying something like "in a post 9/11 world, that law no longer cuts it." Which would not be strict interpretation of that law, but a re-interpretation of it." This is not an example of judicial activism. If you look at the DOJ statement on it, it would appear the Bush Administration wants to interpret FISA as consistent with the president's constitutional powers and the AUMF and Patriot Act, which would justify it's decision to avoid the FISA Court in certain circumstances as an exception clause. The president's constitutional authority is never clearly written (defined), but courts have always recognized it. As I have written before, there is a potential constitutional crisis with FISA. As you would say, "one man's meat is another man's poison."
Originally Posted By cape cod joe never clearly written-----correct Woody-hence the constant ebb and flow of Presidential power from the low right after Watergate to the enhancement with Reagan and now the possible exponential augmentation that is possibly taking place presently?
