Judicial activist liberal Democrats will say anything to divert attention from their hostility to founding documents

Judicial activism means one thing, and has always meant only one thing:

Ignoring the plain language or intent of the Constitution when ruling on executive action or legislation, in order to reach a desired result.

It has never meant merely the overturning of statutes, but judicial liberals will engage in all manner of cognitive dissonance to avoid stating the obvious, except when they are effectively cross-examined or retired.

Democratic Party members of the Judiciary Committee conducting Elena Kagan’s nomination hearing were recently echoed by a liberal Washington Post columnist in their supposed triumph at putting Republicans on the defensive:

But far more than she was given credit for, Kagan did lay out a clear judicial philosophy that (1) sees courts as having an obligation to defer to the choices of elected officials except in the most extreme cases and (2) puts the lie to Chief Justice John Roberts’ notion that judges are mere “umpires,” as if their task was, in Kagan’s cutting word, to be “robotic.” And it was Republican senators who seemed to be begging her to be a judicial activist and overturn the enactments of Congress. Thus did Sen. Tom Coburn ask her whether she would rule against a law requiring Americans to eat a certain number of fruits and vegetables.

“Sounds like a dumb law,” Kagan replied, and then she spoke admiringly of Justice Oliver Wendell Holmes (pictured) who “hated a lot of the legislation that was being enacted” in the early years of the 20th century “but insisted that if the people wanted it, it was their right to go hang themselves.”

“Judges,” Kagan declared, “should realize that they’re not the most important people in our democratic system of government.” It’s a line that might usefully be engraved on a wall of the Supreme Court building.

Yes, Republicans seemed to be admitting implicitly, it is conservatives who are now the judicial activists. That’s why they moved on during last week’s hearings to a new attack line against liberal jurists as being “results-oriented.”

Where to start? Kagan is no Holmes

Does E.J. Dionne think that 50+ years of conservative complaints against liberal judicial activism were about correct results in Miranda, Roe and Kelo? I think not.

Since when are judges not the “most important important people in our…government”? Apparently when the ObamaDem super-majority was elected in 2008, because, under questioning from Ranking Member Jeff Sessions (R-AL), Kagan cited the ruling in Brown vs. Board of Education as an example of a third way to “change” the Constitution other than the two exclusive ways to amend the Constitution laid out in our governing document. Kagan herself puts five-lawyer majorities on the Supreme Court on par with super-majorities of We the People’s representatives in both houses of Congress and the state legislatures or conventions, much less above mere majorities of same and/or executive action.

Finally, Kagan’s obtuse and defensive Oliver Wendell Holmes and Chief Justice John “mere robotic umpire” Roberts references followed her refusal to acknowledge the existence of Creator-endowed unalienable rights to Life, Liberty and the Pursuit of Happiness not enumerated in the Constitution.

Deference on the power to ban the eating of Twinkies

President Barack Obama’s nominee to replace retiring Justice John Paul Stevens as Associate Empathizer Justice on the nation’s highest court indicated she would defer to Congress (or, more likely, executive overiersreach in the promulgation of regulations under ObamaCare statutes) should they proscribe the eating of certain foods on threat of fines or imprisonment.

So, Kagan dismisses the Declaration of Independence as irrelevant and at no time references any enumerated power to justify such deference, even to the point of making the eating of Twinkies illegal interstate commerce, even while not straddling the border of two or more states.

Moreover, when liberals want to forget “deference” and overturn Congressional state statutes limiting abortion, banning books of political speech, or take private property for private use, they can’t be troubled by the words contradicting same or silence in what is supposed to be the supreme law of the land, i.e. The Constitution of the United States.

In short, judicial activism may be passive (when upholding unconstitutional statutes or executive action) or active (when overturning constitutional laws or state action).

Explicit admission

Too bad we have to wait for a retired liberal judicial activist, David Souter, to admit of over a half-century of succumbing to what Robert Bork calls “the tempting” of judges to re-write the law in their image (while all the time writing opinions to pretend to follow the document for appearances sake):

“…seeking to resolve difficult constitutional questions based on an honest effort to construe that document’s words (whether broadly or narrowly) “has only a tenuous connection to reality” and leads to bad decisions.

Souter’s candor is commendable but also genuinely troubling — the practical equivalent of a retired cardinal announcing that religion is an opiate for the masses. Even judges who quietly believe that the Constitution is an irredeemably reactionary document, which they must pull and push into the 21st century, are not generally so bold, preferring instead to cloak their innovations with references to the Constitution’s text.

It is, therefore, the courts (and the Supreme Court especially), that Souter believes must “decide which of our approved desires has the better claim,” and this cannot be done simply by reading the Constitution’s words. Put differently, we all must trust in the judges to find our way through the morass, to make the right choices between competing constitutional imperatives, and we cannot accuse them of making up the law when they make choices we do not like. It is their job, not ours.

He should have been impeached and Kagan should be filibustered given their admissions that they live to violate the Oath of Office they recite to uphold the Constitution in order to take bench.

Tea partiers upset with ObamaDems’ executive overreach and legislation that saps the Tree of Liberty would do well to take note of the judicial example of the same rule by men and women instead of the rule of law that made America the greatest nation in history.

[Originally published at 73Wire]

Mike DeVine

“One man with courage makes a majority.” – Andrew Jackson

Charlotte Observer, The Minority Report and Examiner.com archives

www.devinelawvista.com

Share this post

About the author

stix1972 had written 12397 articles for The Minority Report Blog

Owner of Stix Blog. Doug has been blogging for about 10 years, and can always be found on twitter. Part of the Gateway Grassroots Initiative. And the resident Code Monkey for The TMR Network