Right, Left Target 'Judicial Activism'
Feuerherd, Joe, National Catholic Reporter
There's one see loser in the upcoming Senate Judiciary Committee to consider Samuel Alito's elevation to the Supreme Court: "judicial activism."
Interested parties work tirelessly to convince the Senate to confirm or reject a nominee they believe will help or hinder their ideological agendas (pro-choice vs. pro-life, civil liberties vs. combating terrorism, union supporting vs. corporate friendly, traditional marriage vs. same-sex unions). Even as they do, nobody, not the liberal interests like People for the American Way nor the conservative groups who have put the phrase "judicial activism" front and center in the culture wars, readily admits that what the court decides is as important as how its decisions are reached.
Process, we're encouraged by both left and right to believe, is the Supreme Court's most important product. In fact, the charge that some nominee or interest group supports the idea that the Constitution or a statute can be interpreted or twisted to suit a judge's ideological whims is now the Capitol Hill equivalent of that old schoolyard slander "... and so's your mother."
A typical take-that salvo was fired by Ethics and Public Policy Center president Ed Whelan at a Dec. 21 news conference. The liberal activists groups opposing Alito, charged Whelan, advocate "a living constitution" in order to "indulge their policy preferences." Those preferences, said Whelan's co-panelist Curt Levey, general counsel of the Committee for Justice, include liberal abortion laws, gay marriage, "a soft approach to fighting terrorism," polygamy, Internet pornography, social spending for illegal immigrants, voting privileges for convicted felons, abolition of the death penalty, and hostility toward the Boy Scouts.
The left's goal, said Levey, is to enact the "extreme views of these groups" into law through the courts because they can't get them passed by Congress or state legislatures.
But it's Alito and his allies, counter the liberal groups, who are the real constitutional subverters. Alito's willingness to discuss establishment clause cases during meetings with conservative senators, Americans United for Separation of Church and State argued in an early November press release, "could be a sign that he is a far-right judicial activist eager to overturn decades of settled church-state law." People for the American Way, meanwhile, charges that Alito is an "ideological activist" whom "ultraconservative" groups have embraced because he can "be counted on to push the law in the direction of their ideology and desired outcomes."
Both liberal and conservative groups will be hitting the airwaves early this month with advertising campaigns focused on their perspectives on Alito's record.
Scratch just below the rhetorical surface, however, and it quickly becomes clear that both supporters and opponents of Alito's nomination aren't in the fight solely to ensure that the framers intent is observed or precedent honored.
"The conservative view is that you get somebody who pays attention to the law as written, as opposed to someone who feels liberated from the text, and it produces outcomes that are predictable," says a senior aide to a conservative member of the Senate Judiciary Committee. "If we have judges who simply apply the law as written" and narrowly construe constitutional questions, said the aide, "then conservatives ought to be happy with that. …