What Does Bush Want: The Irony of “Constructivist” Judges
By William King, Domestic Affairs Staff Writer
My high school AP Government teacher taught us that judges could be neatly divided into two camps: activists, who used their own opinions to create law through court cases, and strict constructivists, who used their positions to merely interpret laws and the Constitution without creating new policy. From his first days on the campaign trail in 2000, George W. Bush has announced that it would be his intention to only appoint constructivist judges to the bench as he viewed activism as a threat to the foundations of Democracy. [i] The reality, however, of the last eight years has shown that the distinction between judicial activism and restraint are quite blurred and that many of Bush’s appointments are actively shaping policy.
While the need for an unbiased judiciary has been expressed for centuries, modern criticisms of judicial activism are largely the result of the progressive policies of the Warren Court in the fifties and sixties, most specifically their ruling in Brown v. Board of Education. Southern social conservatives accused the court of imposing its liberal views on the country by forcing desegregation of schools and ignoring the will of the majority. [ii] Activism reached its apex in 1973’s Roe v. Wade (under the Rehnquist Court) when the judges protected a woman’s right to choice under the umbrella of a constitutional privacy protection- it has largely been in retreat ever since… or has it?
George W. Bush has said that he opposes the use of a litmus test for appointing federal judges to the bench, with the exception that he would only appoint judges “who know the difference between personal opinion and strict interpretation of the law.” [iii] This has been the reasoning for every Republican president since Richard Nixon. However, the logic behind this statement is quite vague since judges issue opinions inherently believing they are following the “right” reading of a law.
When Bush came into office in 2001, there were 99 vacancies to be filled on the federal bench. Nearly all of the federal judges appointed before Ronald Reagan had retired and this gave Bush the opportunity to carry the tradition of Republican court appointees (since Regan, Republicans have made court appointments for eighteen years as opposed to the Democrats’ eight). Of the active judges in 2001, Republican appointments had a 103 to 62 lead over the Democrats. The stage was set for decades of judicial restraint. [iv]
The irony with Bush’s appointments is that they are not strict constructivists at all: they actively try to impose conservative judicial philosophies on the courts in the same ways a “liberal activist” would. In an op-ed for the New York Times in 2004, author Dahlia Lithwick proposes that we more accurately label these judges as “re-activist” because of their tendency to disregard stare decisis (the practice of respecting previous court precedents) when it comes to what they feel are “activist” rulings. Their notion of judicial restraint seems to largely just be the practice of literally erasing any case they feel was decided incorrectly. According to Lithwick, re-activists gave the federal court ruling in Lawrence v. Texas (2003), which no longer made sodomy a crime, “the jurisprudential force of a Post-it note,” [v] when the 11th Circuit Court upheld an Alabama ban on the sale of sex toys. In Lawrence, Justice Anthony Kennedy plainly asserted in the majority opinion that, “there is a realm of personal liberty which the government may not enter,” which, to the dismay of many legal commentators and experts, the court apparently did not find relevant. Six of the judges on the 11th Circuit Court were appointed by Republican president’s including the most recent, William H. Pryor, Jr. in 2005 who has openly compared homosexuality to “prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.” [vi] Pryor, who previously served as the Attorney General for the State of Alabama, was a staunch supporter of Alabama’s Supreme Court Chief Justice Roy Moore when he refused to remove a monument of the Ten Commandments from the courthouse. [vii]
Priscilla Owen, Bush’s appointment to the Fifth Circuit Court of Appeals, has sought to literally re-write the rules of parental notification in abortion cases making parental consent nearly a requirement in states such as Texas. [viii] Janice Rogers Brown, a Bush appointment to the Federal Court of Appeals for the District of Columbia (one of the most important courts in the United States since it is often a stepping stone to the Supreme Court) has termed the New Deal legislation of the 30’s and 40’s part of a “socialist revolution.” [ix]
The long-term implications of Bush’s appointments cannot be overlooked. In his first term as President, nearly a third of nominees to the Federal Court of Appeals and Court of Federal Claims were energy-industry lawyers and lobbyists. For the environment, these consequences are dire: his confirmed nominees ruled against environmental challenges 83% of the time. [x] Vermont Law School professor Patrick Parenteau has said that, “bleak times are ahead… deadlines won’t get met, species don’t get listed, environmental impact statements won’t get written, and wetlands won’t get saved.” [xi] The Sierra Club describes some of these nominees as actively rejecting the idea that the Commerce Clause of the Constitution can be used to protect the environment; the basis of federal environmental law since the early 1900’s. [xii]
Perhaps the President should take a cue from the old saying: “don’t bite the hand that feeds you.” Undoubtedly, one of the most flagrant acts of judicial activism in the last decade was the Supreme Court’s ruling in Bush v. Gore (2000) which Michael Kinsley of The Washington Post describes as an “imaginative” use of the 14th Amendment’s Equal Protection Clause. [xiii] Here the Court decided in a 5-4 split that since different Florida counties used different balloting methods, a hand recount would violate the notion of equal protection under the law. Furthermore, they placed a caveat on their decision by saying that the case could not be used as precedent for other equal protection cases, as if they knew their reasoning was a stretch.
What we are left with, then, is a clearer understanding of judicial restraint when the term is employed by conservatives, and Bush specifically; not judges who strictly reference the Constitution and previous decisions when making their rulings, but an ideology which seeks to right wrongs they claim were brought on by liberal judges. Restraint is activism in the wrong direction. Our Constitution is a living, breathing, movable document whose ability to change and adapt over time has allowed it to endure. A degree of progressivism, therefore, is key. In an age where gay rights, abortion, the legal protections of war detainees, and the environment are all issues that are set to take center stage we need forward-thinking judges. In 1857, on the eve of the Civil War, a strict interpretation of the Constitution led to the Supreme Court’s decision in Dred Scott v. Sandford which held that African-Americans were a “subordinate and inferior class of beings” who were not entitled to Constitutional rights; whether we call it restraint, Constructivism, or re-activism, the dangers can be great.
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[i] Jipping, Thomas. “Democrats Use Three-Pronged Attack on Bush Judges.” Human Events. 4/15/2002. Vol. 58, Issue 14. p. 4
[ii] Kinsley, Michael. “The Right’s Kind of Activism.” The Washington Post. 11/14/04. p.B7
[iii] Kinsley, Michael.
[iv] Dante, Chinni. “Bush’s looming battle: filling federal bench.” Christian Science Monitor. 5/1/2001. Vol. 93, Issue 109
[v] Lithwick, Dahlia. “Activist, Schmactivist.” The New York Times. August 15, 2004.
[vi] “How Far Right Are They?” The Advocate. 6/7/05. Issue 940. p. 48.
[vii] “How Far Right Are They?”
[viii] “How Far Right Are They?”
[ix] “How Far Right Are They?”
[x] Scherer, Glenn. “Full Court Mess.” Sierra. May/June 2005. Vol. 90, Issue 3. p. 13-63.
[xi] Scherer, Glenn.
[xii] Scherer, Glenn.
[xiii] Kinsley, Michael.