I'm back, and there's been plenty to blog about while I was gone, so here we go!
If you've been reading my blog, you know I vehemently disagree with President Bush's policy on immigration. However, I couldn't agree more on his Supreme Court nominations (Harriett Meiers was an awful choice, but her nomination was withdrawn, so I'm not counting her). This could end up being one of the major components of Bush's post-Presidential legacy, and a real positive. Here's why.
There are two kinds of judges: originalist and activist. The basic difference is that the activist judge believes the Constitution (and thus all other law) is a living, evolving thing that should be interpreted based on current thought. The originalist judge believes the Constitution was written in a specific way for a specific reason by the Founding Fathers, and that it should be interpreted in light of the context and intent of those reasons. Another way to think about it is that an originalist will simply interpret the law as it is already stated; an activist will interpret the law as he/she believes it should be. That might sound like playing with semantics, but there's a world of difference when it comes to application, and the ramifications are immense. Here's an obvious example: in February of 2005, a judge in Nebraska overruled an amendment to the Nebraska state constitution that would have banned gay marriage. The amendment had passed with 70% approval, but this judge believed that the law should have changed to reflect today's culture, so he ruled accordingly. The problem as illustrated here is that a single activist judge can overrule 70% of a state's population -- or more, theoretically -- all by himself. This is a terrible abuse of power, and should be stopped at all costs.
How do most judges get their jobs? They're usually appointed by governors or the President (depending on whether they're state or federal). So, whoever wins the White House gets a major trump card in determining policy when judge vacancies come open. That's one of the privileges of the Presidency, and a key part of the checks and balances of our system of government.
So, to circle back around, Bush has made two appointments, Chief Justice John Roberts and Justice Sam Alito to the Supreme Court, and both are undeniably brilliant, young, and solid originalists. The previous make-up of the Supreme Court was 4 activists, 3 originalists, and two wafflers (O'Connor and Kennedy) who usually leaned to the activist side. Now, with Roberts and Alito, the balance has shifted to 5 originalists and 4 activists, with Kennedy generally being the only occasional waffler. Again, it may seem small, but the differences are already showing.
A number of the recent decisions have been 5-4 in favor of the originalist viewpoint, and we're talking about some key issues. In 2002, the McCain-Feingold Act was passed, which effectively banned political ads from being run less than 60 days before an election. [Side note: unlike the shamnesty bill, this was a perfect example of not enough people paying not enough attention - this Act was a clear violation of the 1st Amendment right to free speech, but people thought sure it couldn't pass Congress; when it did, they thought surely the President wouldn't sign it into law; when he did, they thought surely the Supreme Court wouldn't let it stand; they did - shame on all of us for not getting outraged by this!] In a recent decision, the new Court reigned in the restrictions on political ads prior to an election. If you want more details, go here and here. By way of summary, the whole thing wasn't dismantled, but the new ruling was at least a step in the right direction, and Alito even left the door open for reviewing the whole kit and kaboodle again, so it may come up in the future. But, as the Editors of NRO said, speech is now "slightly freer". As it should be!
Another recent decision is that of striking down race-based school assignments. The short version of this is that many schools around the country use race as a deciding factor in where students are allowed to go to school; that practice has now been ruled unconstitutional. You'll probably hear a lot of whining about 're-segregation' due to this ruling, but don't believe it - the evidence shows there is more racial mixture happening in schools now than any time in our nation's history. Besides, isn't the whole idea of segregation bad? Wasn't that the reason for Brown v. Board of Education in the first place - to allow students of different races to mix? This ruling should be heralded as confirmation that racism is a poor substitute for giving children of all color the best opportunity to learn and succeed. But, since it's a political issue, you won't hear that.
Both of these decisions were 5-4. There is some talk of another potential retirement in the Supreme Court before Bush's second term is over. If that happens, you could see a definite change in the rulings coming down, and that would be a good thing for America. Any time you have a single activist judge that can (and will) override the will of the American people, it opens the door to major abuses, and that's something that should be avoided. Another thing that activist judges (especially at the Supreme Court level) like to do is quote international law. I don't know about you, but I think that when they're trying to interpret American law, they should stick to...American law.
There has been a shift in the views of the Court under Roberts, and that should be a good thing - it means less activism and more strict interpretation, which is, according to the Constitution, what they're supposed to be doing, anyway.
There's my two cents.
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