For more than a generation, the American right has fallen back on the idea that our federal courts were too liberal and \activist"" judges were unmaking every aspect of our national character. As recently as last week, perennial ethics violator Rep. Tom DeLay, R-Texas, took time out from his impressive spiral into flaming political oblivion to attack Supreme Court Justice Anthony Kennedy (a conservative Republican appointed by Reagan) and the federal judiciary generally, for being too independent. Focus on the Family's James Dobson has said ""The future of democracy ... depends on"" confirmation of Bush's most repugnant troglodytes as federal judges.
These are impressive charges: The future of democracy itself depends on abandoning our legislative traditions to push through the appointment of extremists? The funniest thing is that, after decades of Republican dominance, most federal judges are already conservative Republicans. Conservative lawmakers keep attacking their judicial brethren because it's a political technique that's worked for so long, but it has no basis in reality.
The federal judiciary is not particularly liberal. Republican Presidents have appointed the majority of judges and justices at all levels. Republicans appointed seven of the current nine Supreme Court justices. Additionally, 94 of the 162 judges on the U.S. Court of Appeals, which sits immediately below the Supreme Court, were appointed by Republican presidents. These Republican appointees have clear majorities on 10 of the 13 circuit courts. Further, where Democrats have filibustered only about a dozen of Bush's nominees, 60 of Clinton's were blocked by Republican obstructionism during the 90s.
The public is sometimes misled as to the courts' ideology because the only cases they hear about are big news about individual rights. Most cases on individual rights, like the 2003 decision that struck down anti sodomy statutes, come out in favor of rights. Arguably, the traditional conservative position is opposed to rights, and thus these decisions are liberal. But the average person doesn't hear about the hundreds of small cases decided by the conservative courts, each turning the law a bit further to the right.
Further, even many newsworthy decisions are clearly conservative. Consider 2004's University of Michigan affirmative action cases, which held that pro-diversity efforts couldn't give explicit, numerical advantages to minorities. Or, most famously, in Bush v. Gore, the five most conservative members of the Court installed Dubya as president by stopping the ballot recount ordered by Florida courts. After Bush v. Gore, can anyone seriously argue that the United States Supreme Court is liberal?
In addition, conservatives have won an impressive war of terminology by labeling conservative judges ""strict constructionists,"" while deriding liberals as ""activist judges."" Even DeLay's most recent attacks on Kennedy employed this time-honored label, in plain defiance of Kennedy's record on the Court. The idea behind this slander is that liberal justices ignore the words of the Constitution when setting out their decisions, while conservatives stick with the true meaning of the document. All justices claim that their decisions are in accordance with the Constitution; the question is which of them we believe.
Strict constructionists try to justify reading their personal preferences into the Constitution by cloaking them in specific interpretative rubrics, like ""textualism"" or original intent. Deeper investigation reveals that these are just disguises. The same justices who produce elaborate historical treatises against civil rights for gays abandon history's guidance when limiting affirmative action.
Similarly, in the area of statutory construction, conservatives like to claim they use a plain words approach. But when presented with environmental statutes, they routinely modify them to conservative ends, in spite of the words' plain meanings. For example, regulations stemming from the Endangered Species Act prohibit destruction of habitat critical to endangered wildlife. Justice Scalia objected to this, saying that when Congress outlawed ""harming"" endangered species, they didn't mean to include indirect harm. That Justice Scalia, who all but embodies the conservative ideal of strict constructionism, could be such an ""activist judge"" in interpreting the Endangered Species Act makes clear that the term has no meaning as a general label. It is only used, and incorrectly at that, as an attack on liberal judges.
DeLay's comments about Kennedy are just so much meaningless bile spewed by a politician who has already choked forth gallons of the stuff. Since the federal courts followed the clear dictate of the law in staying out of the Terri Schiavo case, DeLay feels aggrieved. Plus, he needs to divert attention away from his own wrongdoing. Unfortunately, his attacks got press for the same tired lies, further obscuring the truth of the already conservative federal courts.
opinion@dailycardinal.com
