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David N. Mayer

Senatorial Activism and the

“Judicial Activism” Debate, Revisited

            This week the U.S. Senate formally begins its process to determine whether to confirm Judge Samuel Alito, President Bush’s nominee to succeed Justice Sandra Day O’Connor on the U.S. Supreme Court.  As I have previously discussed here (see especially my September 5, 2005 entry on “Confirmation Abuse”), the Senate’s “advise and consent” power, to confirm presidential appointments, is a prime example of the one of the “checks and balances” put into the Constitution by its framers as a safeguard against abuse of power.  As a check and balance – that is, as an exception to the Constitution’s general rule of separation of powers – the Senate’s confirmation power ought to be interpreted narrowly.  Properly exercised, the Senate’s “advise and consent” power enables it to thwart attempts by the president to abuse his appointment power, by appointing unqualified persons to federal office.  When, however, the Senate uses its power to “second guess” presidential appointments – when it goes beyond legitimate questions about a nominee’s fitness for office and instead threatens to reject a nominee because of partisan political differences with the nominee or the president – the Senate abuses the power.  That’s because it ceases to exercise the power as the framers of the Constitution intended it, as a check on the president’s abuse of discretion, and instead attempts to usurp the discretionary appointment power itself – a power that the Constitution, in Article II, vests in the president.     

            In my September 5 essay I called it “confirmation abuse,” when Democrats on the Senate Judiciary Committee attempted to oppose the confirmation of John Roberts to succeed William Rehnquist as Chief Justice.  By all objective measures, Judge Roberts was extraordinarily well-qualified for the Supreme Court.  The only reason some Democrats in the Senate opposed him was because they disagreed with his conservative judicial philosophy and feared that, on the Court, he would vote in particular cases in ways that they – or the special-interest groups that support them – would not like.  They were playing politics with the Senate’s “advise and consent” power, abusing it by trying to dictate what kind of justice they wanted appointed to the Court.  Judges who abuse their power – who go beyond their legitimate judicial authority to interpret the laws and instead attempt to exercise legislative powers, to make law or public policy – are guilty of “judicial activism”; similarly, Senators who abuse their confirmation powers, in an attempt to influence the Court’s make-up according to their policy preferences, are guilty of what I call “Senatorial activism.”  Like judicial activism, it is a violation of the constitutional separation of powers, because it involves one branch of government trying to usurp the legitimate powers assigned by the Constitution to another branch.   (In this case, Senators guilty of exercising their confirmation powers in an illegitimate “activist” way are attempting to usurp the president’s discretionary authority with regard to appointments.) 

            If Harriet Miers, President Bush’s original nominee to succeed Justice O’Connor, had not withdrawn her nomination – in other words, if the Miers nomination were still alive for Senate consideration – Senators would have good reason to regard her nomination quite skeptically.  The Senate Judiciary Committee hearings would focus on the critical question – Is she qualified to serve as an associate justice on the U.S. Supreme Court? – along with a second important question about her ability to be independent of the executive branch.  That’s because Ms. Miers was a close personal friend and crony of President Bush; she also was someone whose record showed no background – no prior judicial experience, no expertise in constitutional law – that would qualify her for any federal appellate court, let alone the most important court in the land, the U.S. Supreme Court.  By all accounts, Harriet Miers was a crony of the President, absolutely unqualified for the position he was nominating her for – a textbook example of the kind of person whose appointment to high government office the framers of the Constitution gave the Senate the “advise and consent” power to thwart.  (For more on this, see my October 27 entry, “Mier’d in Mediocrity and Mendacity.”)  

      Samuel Alito is as different from Harriet Miers as a nominee can be.  Like John Roberts, he is superbly well-qualified to be a Supreme Court justice.  Indeed, Judge Alito’s qualifications far exceed those of Chief Justice Roberts, in terms of prior federal appellate judicial experience.  Judge Alito, after having been confirmed unanimously by the U.S. Senate in 1990, has served 15 years as a federal appellate judge, on the U.S. Court of Appeals for the Third Circuit – giving him more federal judicial experience than 105 of the 109 Supreme Court justices appointed in U.S. history.   

            Because no one can seriously question Judge Alito’s superb qualifications for the Court, the debate over his confirmation has focused on his judicial philosophy.  (In other words, because the Senate has no legitimate basis for refusing to confirm Judge Alito to the Court, the special-interest groups that oppose his confirmation have been urging members of the Senate Judicial Committee to engage in “Senatorial activism” – to inquire into matters that go beyond the legitimate scope of the Senate’s confirmation powers, to inquire into Judge Alito’s personal views, not only the legal positions he has taken as an appellate judge over the past 15 years but also the positions he took 20 years ago when he worked as an attorney in the executive branch of government – matters that are irrelevant to his confirmation, properly considered.)  And the debate over Judge Alito has resurrected, with a new twist, the traditional “left versus right” debate over constitutional interpretation that has dominated most issues of constitutional politics for the past 20 years or more. 

            As I have argued on behalf of my contextual theory of constitutional interpretation, both sides in the traditional debate – both left-liberals and conservatives – get it wrong.  They both fail to fully take into account the text of the Constitution:  the document as a whole, and its fundamental purposes of both limiting the powers of government and safeguarding the rights of individuals.  Both sides in the debate err in fundamental ways:  left-liberals generally fail to recognize the limits the Constitution imposes on federal government powers (in other words, they overlook the significance of the Tenth Amendment), while conservatives generally fail to fully protect all the rights of individuals, especially those not enumerated in the Constitution (in other words, they overlook the significance of the Ninth Amendment and other provisions of the Constitution that protect liberty in the general sense).  Even with regard to those provisions of the Constitution they basically “get,” both sides in the debate err in their understanding:  left-liberals, with their inconsistency (and double standards) in the protection of rights; conservatives, with their erroneous identification of the Tenth Amendment with so-called “states’ rights.”  Both sides fail to understand, for example, that the principle of federalism – of dividing powers between the national government and the states – not only protects the autonomy of state governments but also (and more fundamentally) protects the rights of individuals.  (For more on this, see my essay “Interpreting the Constitution Contextually” (2003).) 

            The new twist that recently has been added to the traditional “left vs. right” debate over constitutional interpretation is the issue of judicial activism.  In the debate today, both sides tend to label as “activist” those court decisions with which they disagree.  And they accuse the other side in the debate of being “activist,” without really understanding what judicial activism (in the bad sense of the term) is really about. 

            Properly speaking, an “activist judge” is one who decides the outcome of a given case or controversy according to subjective values – his or her personal convictions – rather than following so-called “neutral principles,” objective standards for interpreting laws and constitutional provisions.  Activist jurisprudence is result-oriented, focused on reaching the particular result, or outcome, that a judge desires in a particular case.  What makes a given decision “activist,” however, is not the result it reaches so much as the reasoning the judge gives in support of his or her decision.  A truly activist judge, in the negative sense of the term, frequently uses policy arguments – the kind of arguments more appropriately made in a legislature rather than in courthouse – in support of the court’s decision; in the guise of constitutional interpretation, activist judges really are trying to make new law, rather than interpret and apply existing law.  Thus, judicial activism is an abuse of the courts’ legitimate judicial power; it is an attempt to usurp the law-making, or legislative, power that our constitutions (both state and federal) vest in the legislative branch of government.  An activist decision is unconstitutional because it violates one of the key principles of the American constitutional system, the separation of powers.  

            As I have discussed in a previous entry (“Judicial Activism, Real and Imagined,” April 4), there is much misunderstanding about the concept of judicial activism.  One of the common errors made by both sides in the constitutional debate is to confuse judicial activism, properly speaking (as discussed above) from judicial enforcement of constitutional limits, the limits the Constitution imposes on governmental powers.  Both conservatives and left-liberals are guilty of improperly labeling as “activist” judicial decisions that enforce limits on the powers of government that they do not like. 

            As an example of conservatives’ misuse of the concept of judicial activism, consider their criticism of Lawrence v. Texas, the U.S. Supreme Court’s decision in 2003 that declared unconstitutional the Texas law criminalizing sodomy (oral or anal sex) between persons of the same sex.  The majority opinion by Justice Anthony Kennedy simply applied the due process clauses of the Fifth and Fourteenth Amendment broadly to protect liberty.  “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.  In our tradition the State is not omnipresent in the home.  And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence.  Freedom extends beyond spatial grounds.  Liberty presumes an autonomy of self that includes freedom of thought, belief, expressions, and certain intimate conduct.  The instant case involves liberty of the person both in its spatial and more transcendent dimensions,” Justice Kennedy wrote. 

            Conservative critics of the Lawrence decision point to Justice Kennedy’s broad definition of liberty as an illustration of judicial activism because they consider it “activist” for judges to protect rights – that is, to protect aspects of liberty – not enumerated in the text of the Constitution; and indeed, many conservative scholars and jurists regard such “substantive” use of the due process clauses of the Constitution to be illegitimate (not withstanding the long history of what modern scholars call “substantive due process” in American constitutional law).  They are wrong, however, to consider judicial protection of liberty, in a general sense, to be “activist” for the simple reason that the text of the Constitution itself explicitly does protect “liberty” as a fundamental right.  Moreover, the Ninth Amendment (as well as the “privileges or immunities” clause of the Fourteenth Amendment, as it was meant by its framers) also explicitly protects unenumerated rights.  What’s really activist about judicial protection of liberty is to do so selectively, protecting certain aspects of liberty (which judges like) and refusing to protect other aspects (which judges do not like) – the kind of selective protection of fundamental rights that conservatives (with good reason) find so improper in modern “liberal” constitutionalism.   As I observed in my previous entry on “Judicial Activism, Real and Imagined,” judges are just as guilty of being activist when they refuse to protect rights they do not like – that is, when they uphold abridgements of liberty through exercises of governmental power that they do like – as when they declare laws they dislike to be unconstitutional.  Indeed, looking at the various opinions of the justices in Lawrence, one may conclude that the most “activist” opinion was Justice Antonin Scalia’s dissent.  It was Justice Scalia in his dissent, and not Justice Kennedy in his opinion for the majority, that sees the Court involving itself in the so-called “culture war.”  And by accusing the majority of advancing the “homosexual agenda,” it is Justice Scalia who betrays his own personal preferences for laws prohibiting what some people regard as “immoral” conduct. 

            Many of the arguments now advanced by left-liberals in opposition to Judge Alito’s confirmation also illustrate now they misuse the concept of judicial activism, improperly characterizing as “activist” conservative Court decisions enforcing limits on governmental powers that they do not like.  For example, consider Court TV commentator Catherine Crier’s November 3 op-ed in USA Today (“What conservatives see as the `right’ stuff”), which argues that President Bush nominated Judge Alito to appease “ultraconservatives,” members of the “far right” who want a Supreme Court justice who “will carry their ideological agenda onto the bench.”  Crier, remarkably, accuses the Rehnquist Court of being perhaps “the most `activist’ in U.S. history” because it “overturned all or part of more than three dozen federal statutes in the past 10 years.”  When left-liberals like Crier consider it “activist” merely for the Court to do its job – to declare unconstitutional laws that violate the limits imposed on government actions by the Constitution – they are making the same mistake many conservatives have made in decrying as “activist” many of the decisions of the Warren Court (1953-1969):  they’re confusing judicial activism, properly considered (which, as I discussed above, is an abuse of judicial power) with the Court’s legitimate power of judicial review.  (For more on this, see my essay on “Judicial Activism, Real and Imagined.”)  Crier’s biased criticisms (which are also self-interested, as she’s trying to sell copies of her book Contempt – How the Right Is Wronging American Justice) distort the positive legacy of the Rehnquist Court, which was to revive at least partially some basic constitutional limitations – such as the protection of property rights under the Fifth Amendment’s takings clause or the limits on Congress’s powers to “regulate commerce among the States” – limitations that left-liberal judicial activists on the Supreme Court had been ignoring since the late 1930s. 

            Yet another example of left-liberal abuse of the concept of judicial activism, in their criticisms of Judge Alito’s jurisprudence, can be seen in a recent USA Today editorial on what seems to be the critical hot-button issue, “On abortion, would nominee put personal views aside?” (December 2).  The editorial cites two pieces of “evidence” of Judge Alito’s views that have been frequently proffered by his opponents (showing, among other things, how pathetically desperate their opposition is):  a 1985 memo written by Alito when he was a lawyer in the Reagan administration’s Justice Department, outlining a legal strategy for “eroding access to abortion by supporting states’ efforts to write more restrictions into law – while keeping the reversal of the landmark Roe v. Wade decision . . . as the ultimate objective” (as the USA Today editors characterized it), and a comment made by Alito’s mother, in “a refreshingly candid interview the day he was nomination,” who said bluntly, “Of course he’s against abortion.”  (Alito’s background as an Italian-American and especially as a Catholic is also being exploited by some of his opponents, in a subtle appeal to ethnic and religious prejudice, to call into question his jurisprudence on abortion.)   

            The USA Today editors wrote that the 1985 memo raises “serious concerns as to whether Alito would bring deference to settled law – or a personal, activist agenda – to abortion cases” (emphasis added).  What nonsense!  No one, whether judge or attorney (as Alito was when he wrote the memo) or law professor, for that matter, is an “activist” simply by questioning the Court’s 1973 decision in Roe v. Wade.  It’s the Roe decision itself, and its supporters, who are the activists, in the true sense of the word; Justice Blackmun’s opinion for the Court in Roe may be rightly seen as a textbook example of judicial activism (with the Court making policy decisions, about the balancing of fundamental rights, and especially with the Court attempting to decide a question – when does human life begin, for purposes of the law? – which the Constitution’s Tenth Amendment reserves to the states).  All this is water under the bridge, however, given the Court’s 1992 decision in Planned Parenthood v. Casey, in which the Court (in a plurality opinion by Justices O’Connor, Kennedy, and Souter) upheld some of Pennsylvania’s restrictions on abortion (the kind of state laws about which Alito wrote in his 1985 memo) while reaffirming the basic holding of Roe v. Wade (although discarding Justice Blackmun’s trimester scheme in favor of the new “undue burden” test), under the legal principle of stare decisis.  What Judge Alito probably will say when asked about the 1985 memo during his confirmation hearings this week (no doubt he will say it less bluntly than I am writing here) is that the Casey decision makes the key holding of Roe – that the Constitution protects a right to privacy, and that right includes a pregnant woman’s decision to have an abortion, at least during the early stages of pregnancy – “settled law” that will not be overturned, even if the reasoning in Roe was erroneous.  That’s because so many court decisions have relied on Roe – just as many persons have relied on its holding in making critical choices in their lives – one of the key reasons for following stare decisis as outlined in Justice O’Connor’s opinion in Casey.  Alito’s 1985 memo truly is irrelevant to the question of his jurisprudential views today; not only was it written 20 years ago – before Alito’s lengthy career as an appellate judge had begun – while he was still employed as an attorney (that is, as an advocate) in the Reagan administration, but also the memo was written seven years before the Casey decision settled the question.  Conservative activists (who are not really activists at all but rather proponents of a philosophy of judicial restraint which informs their criticisms of Roe v. Wade) might still wish to overturn Roe, but it’s not likely that Justice Alito will vote to do so, precisely because he’s not an activist.  As a non-activist, he will accept the Casey decision’s stare decisis analysis and thus regard the basic holding of Roe as settled law, notwithstanding his private views on abortion.  His private views – being “against abortion,” on moral or religious grounds – are also irrelevant, precisely because Judge Alito is not a judicial activist.  Of course, he’s not likely to expand abortion rights, either – he won’t be an activist on behalf of the extreme view of “a woman’s right to choose” that abortion-rights activists push – and that’s why they’re so adamantly opposed to him.     

            Another erroneous argument frequently made by left-liberal political activists in opposition to Judge Alito’s confirmation is that he would “tip the balance of the Court,” because Judge Alito is perceived to be more conservative in his jurisprudence than Justice O’Connor, on certain issues dear to the bleeding hearts of leftists (not only abortion but also issues such as “affirmative action,” or government-enforced racial preferences).  In several cases involving these issues (such as the 1992 Casey case, discussed above, or the 2003 affirmative-action cases involving the University of Michigan’s admissions programs), Justice O’Connor sided with the “liberals” on the Court – thus making her seem more a “moderate” than a conservative, to people on the left.  It’s not at all clear whether Alito would decide those cases significantly differently from O’Connor; as discussed above, he’s likely to agree with her analysis of stare decisis in Casey, although it’s quite possible he would have cast the deciding vote in the University of Michigan cases in a different way (which, in my view, would have been proper).  But all this is beside the point, for it is not the Senate’s purpose to maintain any sort of jurisprudential “balance” on the Court.  The notion of “balance,” in fact, is an attempt by left-wing activists to disguise what they’re really trying to do, which is to shift the real balance on the Court to the left, resulting in a left-liberal activist Court more to their liking.  The kind of “moderate” justice they would like to see as a successor to O’Connor would, in fact, vote differently from O’Connor in the many kinds of cases in which she sided with the conservatives on the Rehnquist Court – for example, cases involving federalism, the division of powers between the federal government and the states, another one of the positive legacies of the Rehnquist Court (its so-called “New Federalism”), which rest on the fragile 5-4 majority that conservative justices hold against the four unabashed left-liberal justices on the Court (Justices Stevens, Souter, Ginsburg, and Breyer).   

            As I’ve discussed above, it is wrong – it is an abuse of their constitutional authority, under the Article II “advise and consent” clause – for Senators even to consider a nominee’s judicial philosophy in deciding whether or not to confirm.  Their sole legitimate subject of inquiry is the nominee’s competence – Is the nominee qualified for the office to which he is being nominated? – and, of course, there’s no serious reason to doubt Judge Alito’s superb qualifications to be a Supreme Court justice.  How he will vote on particular cases or controversies that come before the Court – whether or not he will shift the “balance” on the Court – are properly matters of concern of the president in nominating a justice, but they are not within the legitimate subjects of inquiry for members of the Senate.  As I discussed in my “Confirmation Abuse” essay, Senators largely confined themselves to their proper role when holding the confirmation hearings for Bill Clinton’s first nominee to the Court, Ruth Bader Ginsburg, in 1993 (thus creating what Republicans now tout as the “Ginsburg standard” for the proper scope of questioning a Court nominee).  As a result, Ginsburg was confirmed overwhelmingly, by a 96-3 Senate vote, despite the fact that many Republicans (who were then in a minority in the Senate) disliked Ginsburg’s judicial philosophy.  Indeed, as I noted in my previous essay, “Ginsburg had built her career as a `women’s-rights’ attorney who had left-liberal political views that influenced her judicial philosophy, putting her well outside the American `mainstream’ on many constitutional issues, including the scope of the right to privacy and application of the Constitution’s Equal Protection Clause.  Moreover, she was replacing a conservative justice, Justice Byron White, and thus her appointment shifted the so-called “balance” on the Court.   Republicans, who were then a minority in the Senate, justifiably could have opposed Ginsburg’s confirmation, on similar partisan grounds now being cited by Democrats for their opposition to Judge Roberts [or Judge Alito].  But in 1993 the Republican minority on the Senate Judiciary Committee accepted Biden’s ground rules [what is now called the “Ginsburg standard”]; after three and a half days of light questioning in their committee hearings, they sent the Ginsburg nomination to the full Senate, where after a perfunctory debate, she was handily confirmed.” 

            It’s worth emphasizing that Justice Ginsburg really did shift the “balance” on the Court, for she was an unabashed left-liberal who was replacing a justice who clearly was a conservative, Justice Byron White (who, among other things, was the author of the Court’s majority opinion in the 1986 decision, Bowers v. Hardwick, upholding the Georgia sodomy statute as applied to a homosexual man engaged in oral sex – the decision that the Court overturned in its Lawrence decision in 2003).  Yet the members of the Senate in 1993 (both Democrats, then in the majority, and Republicans, then in the minority) responsibly exercised their “advise and consent” power and confirmed Justice Ginsburg, notwithstanding the way she was expected to shift – and, as history has shown, has in fact shifted the “balance” of the Court, solidifying its left-liberal block of justices. 

            I’ll repeat what I wrote on September 5 about Senate Democrats’ criticism of Chief Justice Roberts, because the same points apply – perhaps even more forcefully – with regard to their criticism of Judge Alito: 

Make no mistake about it:  despite their rhetoric claiming to be acting on behalf of Americans’ constitutional “rights,” the Senate Democrats are motivated purely by partisan politics of the nastiest sort.  Democrats on the Judiciary Committee – Senators Patrick Leahy of Vermont, Teddy Kennedy of Massachusetts, Joe Biden of Delaware, Chuck Schumer of New York, Dick Durbin of Illinois, Herb Kohl of Wisconsin, Dianne Feinstein of California, Russ Feingold of Wisconsin – are among the most rabidly partisan, left-wing members of the Senate.  Most of them depend, for their re-election, on the support (financial and otherwise) of the same leftist advocacy groups that are opposing Roberts [and now, Alito] – groups like NARAL and People for the American Way, which see a jurisprudential conservative like Roberts [or Alito] as an obstacle to their nefarious designs.  And what are those designs?  Conservatives are generally quite right in maintaining that leftists are trying to pack the federal judiciary with left-liberal activist judges who’ll abuse their power as judges to help advance their public-policy agenda.  How do liberal activist judges do this?  They do it in two ways.  First, by failing to enforce limits the Constitution places on the powers of Congress (through both Commerce Clause powers and the so-called “spending power”), they essentially give the national government carte blanche to control individual citizens’ lives, especially in economic matters.  Second, by selectively protecting individual rights (enforcing only those provisions of the Bill of Rights they regard as important or “fundamental”), they enable government at all levels – not only the national government, but the states and local government, too – to run roughshod over individual rights that left-liberals disregard (property rights and economic liberty, or the Second Amendment right to “keep and bear arms,” for example).  . . .

Left-liberal politicians like Teddy Kennedy and leftist special-interest advocacy groups have been whining that if another conservative justice is confirmed to the Supreme Court, it will be the end of “women’s rights,” “workers’ rights,” “gay rights,” “rights for the disabled,” “environmental rights,” et cetera.  These frenzied cries are based on two grossly erroneous assumptions:  they mischaracterize both the proper role of the judiciary and the essential nature of rights, properly understood.   Once we identify these two erroneous assumptions, we can see exactly why left-wing activists are so incensed at the appointment of a conservative to the Court.

First – contrary to the assumption that lurks behind Senator Kennedy’s frequently-asked question “Whose side is he on?”– responsible judges do not take sides; they impartially and objectively apply the law to the facts of the particular cases and controversies that come before them.  Sure, there are always winners and losers in litigation – one side to the controversy wins its arguments before the court, while the other side loses – but in deciding cases, judges have an obligation to follow the law, impartially and objectively, rather than their own personal preferences for the outcome of the decision.  When judges cease to follow neutral, objective legal principles and instead follow their own subjective biases, they are guilty of that abuse of the judicial power that is commonly called “judicial activism.”  Jurisprudential conservatives, like [Judge Alito], are especially conscious of the evils of judicial activism and thus try scrupulously to avoid it in their judicial decision-making.

Second, the leftists’ frequent appeal to various special-interest rights distorts the essential nature of rights, properly understood.  The only “rights” that people legitimately have, in our constitutional system, are rights they hold as individuals:  all the legitimate rights found in the Constitution – each of them being an aspect of the fundamental, natural rights of life, liberty, and the pursuit of happiness – pertain equally to all individuals.  Thus, there is really no such thing as “women’s rights,” “workers’ rights,” “gay rights,” “rights for the disabled,” or “environmental rights”:  each of these special-interest “rights” are not rights, properly speaking, but rather claims upon use of the coercive powers of government to benefit some individuals at the expense of others.  Rather than being genuine rights, they each necessitate the abuse of governmental powers to invade the genuine rights of some persons in order to “benefit” others. 

Let’s translate leftist-speak into what each of these pseudo-“rights” really means.  “Women’s rights” means, among other things, that a pregnant woman’s freedom to terminate a pregnancy should trump all other individuals’ legitimate rights – and particularly, an unborn child’s fundamental right to life – as well as such fundamental American constitutional principles as federalism and separation of powers.  “Worker’s rights” means, among other things, that the coercive power of government should be used to prop up the political power of labor unions, to force employers to accede to employee demands not fairly advanced at the bargaining table.  “Gay rights,” as advocated by leftists, means that the government should criminalize homophobia.  “Rights for the disabled” means, among other things, that government should dictate not only employment practices but also the designs of buildings and walkways – and that’s just to help assure “equal access” for one category of “disabled” persons, those whose physical disabilities require them to use wheelchairs.  When one takes into account the expansive definition of “disabled” that some activists advocate – not mere physical disability, but medical including mental (such “disabilities” as hyperactive disorder or attention-deficit disorder), “rights for the disabled” can easily become the nightmare scenario envisioned by Kurt Vonegut in his short story “Harrison Bergeron,” in which government assumes totalitarian powers in pursuit of the vain quest of “equalizing” opportunity for all, by handicapping the able.  And finally, “environmental rights,” among other things, means expansive interpretation of federal laws such as wetlands protection laws and the Endangered Species Act which deprive property owners of their rights and which sacrifice economic development at the altar of environmental radicalism.  Because the “environment,” as an abstract entity, has no rights, it means that those who profess to act on its behalf – the radical environmentalists – can use the coercive power of government, often backed up by phony pseudo-science theories, to destroy the legitimate rights (property rights and economic freedom rights) of others.  All these pseudo-“rights” really mean using the power of government to advance the demands asserted by some special-interest groups in society against the rights – the true, legitimate legal/constitutional rights – of other Americans. 

To which it may be added that, as understood by many Democrats on the Senate Judiciary Committee, protection of these pseudo-“rights” also means that Congress ought to have unlimited power to define their scope.  Thus, in the name of protecting certain special “rights,” Democrats would have the courts abandon all efforts to limit the exercise of Congress’s power (recall, again, that in the eyes of many left-liberals, the enforcement of constitutional limits on Congressional power is a type of judicial “activism”) – and thus endanger the real rights of all Americans.   

I’ll close by paraphrasing what I also wrote on September 5 about the Senate’s duty to confirm Chief Justice Roberts, applying the same argument to Judge Alito.  Senators who take seriously their oaths to preserve and protect the Constitution – and who respect all the legitimate constitutional rights of all the American people (not just the pseudo-rights asserted by the most vocal special-interest groups) – must vote to confirm Judge Alito as the next associate justice of the U.S. Supreme Court.  Any Senator who votes “No” on Alito’s confirmation – whether a Democrat or a so-called “moderate” Republican (which really means a partially leftist Republican) – is sacrificing this greater duty to the American people, in order to pander to left-wing special interests.  Any Senator who does this is abusing the “advise and consent” power that the Constitution entrusts to the Senate.  Senators who vote “No” on Judge Alito because they disagree with his judicial philosophy – or with how they imagine he might decide particular cases or controversies – are guilty of “Senatorial activism,” which is just as unconstitutional as judicial activism.

 | Link to this Entry | Posted Monday, January 9, 2006 | Copyright © David N. Mayer