In the run-up to an expected confirmation fight over President Obama’s first Supreme Court appointment, Republicans are already warming up their tired old rhetoric attacking “judicial activism” as an unacceptable quality for judges. A perfect dissection of the emptiness of this term has been offered up at Politico by Keenan Kmiec, a former law clerk to Chief Justice Roberts, and thus presumably not a wild-eyed liberal:
Complaints about judicial activism have plagued Supreme Court confirmation hearings for decades. Justice Sandra Day O’Connor fielded dozens of questions on judicial activism in 1981. Justice Stephen Breyer was urged to “resist the siren calls of judicial activism” in 1994. The term appears 56 times in the record of Justice Ruth Bader Ginsburg’s confirmation hearings, and it seemed omnipresent at the Roberts and Alito hearings.
But what does “judicial activism” mean? To borrow from Justice Antonin Scalia, it often “doesn’t mean anything. It doesn’t say whether you’re going to adopt the incorporation doctrine, whether you believe in substantive due process. It’s totally imprecise. It’s just nothing but fluff.”
Without context or a clear definition, a charge of judicial activism is an empty epithet, the legal equivalent of calling someone a jerk.
Kmiec goes on to look at several issues that lurk below the surface of charges of “judicial activism,” including deference to legislative decisions, respect for judicial precedent, and various approaches to the interpretation of both constitutional and statutory texts. But the fundamental issue of a putative Justice’s judicial philosophy is not often captured by talk of “activism:”
There are about as many theories of constitutional interpretation as there are judges. The current Supreme Court includes self-described “originalists,” “minimalists” and proponents of “active liberty,” to name a few….
Understanding a nominee’s judicial philosophy is hard work, but it should be the goal of the confirmation process. Amorphous charges of “judicial activism” score cheap political points, but they have no place in a serious confirmation debate. Let’s banish the term or at least use it carefully.
Sounds like a very good idea, but don’t hold your breath for Republicans to agree.
Meanwhile, MSNBC’s First Read has come up with what it calls a “working short-list” of six for Obama’s SCOTUS pick:
The co-frontrunners (in no particular order): Diane Wood of the 7th Circuit, Solicitor General Elena Kagan, Sonia Sotomayor of the 2nd Circuit, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and Merrick Garland of the DC Circuit Court of Appeals.
Granholm and Napolitano are a bit of a surprise for so narrow a “short-list,” but it should be noted that they both served as Attorney General of their states. Napolitano knows a little about confirmation fights, too. As Dana Goldstein has pointed out, Napolitano was an attorney representing Anita Hill during the Clarence Thomas confirmation saga.