I just watched Robert Gibbs go through an incredibly frustrating debate over whether or not the criteria President Obama has laid out for judges means he’s going to appoint some of the dread “activist judges” to the Supreme Court.
I wish progressives wouldn’t be so defensive about this. The idea of an “activist judge” is something that was cooked up by white supremacists in the 1950s and 60s who didn’t like judges bossing people around and telling them they had to let black people vote and go to school. To me, frankly, it’s a bit shocking that modern-day conservatives are still so eager to associate themselves with the legacy of the racist backlash of a couple of generations ago.
The term is nonsensical on its face. Is the idea that judges should be passive? Just not issue rulings on constitutional questions? That’s absurd. Is the idea that judges should never strike down laws as unconstitutional? For one thing, conservative judges do it all the time. But more importantly, why would we have a system of judicial review if the ideal of judging was to never strike a law down? It’s a nonsense debate. As no less a figure than William Rehnquist explained in a memo written when he was in the Nixon justice department “A judge who is a ‘strict constructionist’ in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs—the latter two groups having been the principal beneficiaries of the Supreme Court’s ‘broad constructionist’ reading of the constitution.” I think it’s fair to have a real debate about this, but let’s not BS around about “activists” and “strict construction.”