Judicial-Activism Stance Draw Fire Conservatives Wary of Notion That Court Fills "Vacuum" Left by Congress or White House. SOUTER HEARINGS

Article excerpt

JUDGE DAVID SOUTER has stirred modest concern among several conservative members of the Senate Judiciary Committee with some of his statements on judicial activism.

Judge Souter said that one reason past Supreme Courts have taken active stances is that a "vacuum" sometimes existed which neither Congress nor the White House had filled, and into which the Court stepped, in accordance with its constitutional duties, to meet proper national needs.

The courts, he said, sometimes are "forced to take on problems which sometimes might better be addressed by the political branches of government."

These statements raised anew conservative concerns over activism by the court.

During the Earl Warren years, the court took far too active a stance on social issues, according to many conservatives. However, the concern does not seem to threaten his nomination.

Conservatives worry that Souter might become an activist member of the Supreme Court, trying to force it back into a more socially active and liberal role than it now holds.

But activism lies more in the eyes of the beholders than in the actions of the justices, say several legal specialists. "In general, people criticize courts for being activists (because the courts are) doing things they don't like," says Mark Tushnet, professor of law of Georgetown University Law School. Activism "is just a label" to describe actions that people oppose.

From the beginning of the Supreme Court in the late 18th Century, its judges have been judicial activists, says Herman Schwartz, professor of law of American University: "From John Marshall, one of our greatest activists, to Antonin Scalia, to Bill Brennan, to Sandra Day O'Connor - they're all activists." They just have different perspectives, he says.

At present it is conservatives who accuse liberals of being court activists. But in the past it has been the other way around: "Liberals accused conservatives in the pre-1937 Court of being activists," says David O'Brien, professor of government of the University of Virginia.

SOUTER'S comment about the court's role in filling a vacuum was too much for Iowa's Republican Senator Charles Grassley. "If we're going to have a Supreme Court that thinks it can fill vacuums every time there is a perceived problem," he said, "then . …


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