Balkinization: Re-playing the Old Argument About Activist Judges

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# posted by

Brian,

For me the amazing thing about this "argument" is that it brings hope by showing how very fallible (and hypocritical) the GOP noise machine can be. Contrast this rhetorical use of the word "activist" with Newt's suggestions in the infamous 1996 GOPAC memo: "Use the list below to help define your campaign and your vision of public service. These words can help give extra power to your message. In addition, these words help develop the positive side of the contrast you should create with your opponent, giving your community something to vote for!

* active(ly)
* activist
* building...

I think it's vital to keep in mind that we are talking here about rhetoric, not argument, persuasion rather than truth (as evidenced by the facts you offer about who can be counted on to judge politically or overturn precedent). Schopenhauer labeled this "activist judges" ploy, "Put His Thesis Into Some Odious Category".

The classics never die.
(typos corrected)

# posted by

Robert Link : 5:36 PM

Activism is not necessarily reversing legislation. Rather, activism is ignoring the law as written to impose the judges' own policy preferences. Last session of the Court had two egregious examples of judicial activism - one in the majority, one in the minority:

The Boumediene majority wrote out the provisions in Article I expressly granting Congress the power to set rules for Captures and in Article II generally granting this power to the President as CiC to arrogate it to themselves although Article III grants the judiciary no such power. In this case, the activist judges reversed a statute.

But for one more vote, the Heller minority would have written the Second Amendment out of the Bill of Rights and permitted DC's near total arms prohibition. In this case, the activist judges would have upheld a plainly unconstitutional statute.

Consequently, for those of us who believe that the Constitution is important and means what it says, the specter of a President Obama appointing more activist dictators in robes ala Ginsberg is a horror show undermining the rule of law with the rule of very few men and women.

# posted by

Bart DePalma : 6:27 PM

"Bart" DePalma:

Activism is not necessarily reversing legislation. Rather, activism is ignoring the law as written to impose the judges' own policy preferences.

Prof. Tamanaha addressed a number of different potential meanings for "activism" in his discussion. "[I]gnoring the law [] to impose [] policy preferences" was one of them.

The Boumediene majority wrote out the provisions in Article I expressly granting Congress the power to set rules for Captures ...

Article I also says that Congress only can suspend habeas, and then only in times of rebellion or invasion as the "public safety" may require it.

No one said that Congress couldn't write rules for "captures". They said that Congress can't just write out habeas the way they did. Read the freakin' opinion, 'mkay?

... and in Article II generally granting this power to the President as CiC ...

Huh?!?!? What does the executive have to do with Boumediene (I mean, other than their ignoring the law)?

... to arrogate it to themselves although Article III grants the judiciary no such power....

See Marbury. Do you think that Marbury is bad law?!?!?

... In this case, the activist judges reversed a statute.

Yes. SFW?

... But for one more vote, the Heller minority would have written the Second Amendment out of the Bill of Rights and permitted DC's near total arms prohibition....

In a case that was arguable on either side. Which is why it went the other way for so long (see, e.g., Miller).

In this case, the activist judges would have upheld a plainly unconstitutional statute.

Huh?!?!? I think Prof. Tamanaha covered this in his comments on "political" views.

Cheers,

# posted by

Arne Langsetmo : 6:49 PM

"If "activism" means injecting political views into judicial interpretation, it is absurd to suggest that the recent votes of conservative Justices are not predictable on political grounds."

It's absurd to pretend that a Justice's vote being "predictable on political grounds" is necessarily the same as their "injecting political views into judicial interpretation".

Suppose one faction were voting on the merits, and the other voting purely on the politics. (For the purposes of this analysis it doesn't matter which faction is which.)

In the cases where the political faction's politics agree with the merits, they'll both vote the same, and it will be seen as a non-political case. Even though it only was for one side...

When the political faction's politics disagree with the merits, they'll vote differently, and both faction's votes will be predictable from their politics, even though only one faction's vote was determined by it.

You can't tell principled judging from stark politics, unless you are independently examining the legal merits of the cases.

Since legal realists don't believe in legal merits, they can never see anything but politics!

# posted by

Brett : 8:27 PM

I doubt that the Republicans "activist judges" scare tactic will work, simply because it is such a tired tactic. But the way to combat it is not with the arguments that Prof. Tamanaha suggests, because those arguments, except perhaps for the fact that Republican appointees dominate the bench, are too sophisticated for the average voter. Democrats should produce an ad to the effect that, just as it has turned out that it is the Republicans who are the big spenders and who have wrecked the economy, so it is the Republicans who control the federal bench and who are the activists. And their next activist decision, if McCain becomes President and appoints a Supreme Court justice, will be to overturn Roe v. Wade and allow the government to send women to prison for seeking abortions. That message ought to be simple enough for the average voter.

# posted by

Henry : 8:53 PM

The "scary activist judges" argument does have some traction with some portions of the electorate, which is one reason the Republic Party uses it.

Another: it frames the argument to ignore inconvenient reality. An example of that is the Prop. 8 campaign in California which would outlaw gay marriage. Since the right wing's numbers people have figured out they've already lost that one, the Yes on 8 campaign doesn't even mention that; instead, it harps on "activist judges" as the horrible bugaboo to set right.

Another: it's so conveniently vague but resonates with those for whom it's perfectly clear. For them it means those activist judges who treated women as people, African Americans as people, and in general, people as people. So it makes for great code, if you want the support of racist sexist bigots. Apparently the Republic Party does.

This is similar to the myth and mantra of electoral fraud, all somehow committed against Republic Party candidates. Oh, the fraud! Again conveniently vague but clearly signaling to racist pigs that what we want is poll taxes and literacy tests, make sure everyone votes RIGHT.

So as far as I can tell it's a wonderful manipulation cooked up by smart Republic Party boys to enlist the support of fools and bigots without admitting to same in public. Other than that we have to admit there's a meaningful discourse we can have about activist judges. Right after the one about sand worms. I hate 'em; you hate 'em; am I right?

# posted by

jpk : 9:19 PM

Bart De Palma, like most Republicans these days, is simply a liar and a fascist.

If anyone's interested in the truth about the detainee cases and Boumediene, please see these recent posts on my PEGC blog:

* Boumediene and 28 USC 2241(e)(2)

* 18 USC 2441(c)(2)

# posted by

Charles Gittings : 9:35 PM

The reality is that the Republicans are themselves "activists" to the extent of wilful fraud. They'll argue that 1 + 1 = 3 or that water flows uphill if it makes a case come out the way they want.

# posted by

Charles Gittings : 9:41 PM

Charles:

The Court's activist invention of a constitutional habeas corpus right for foreign enemy combatants to challenge their detention as POWs has nothing to do with my point concerning the more egregious Court ruling assuming Congress' express Article I power to set rules for captures as part of a habeas corpus process.

BTW, you might want to ensure you know of which you speak before you fly of the handle yet again slandering others as liars and fascists.

# posted by

Bart DePalma : 11:39 PM

Bart,

Your misrepresentations of fact and fraudulent misconstructions of the law are nothing that could be described as "the court's activism".

You're just wrong.

# posted by

Charles Gittings : 1:31 AM

If "activism" means injecting political views into judicial interpretation, it is absurd to suggest that the recent votes of conservative Justices are not predictable on political grounds.

But what if we have a deeply conservative Constitution, and the conservative Justices are just faithfully interpreting it? It's at least a logically possible explanation of the predictability you point to.

# posted by

Asher : 2:59 AM

"But what if we have a deeply conservative Constitution, and the conservative Justices are just faithfully interpreting it? It's at least a logically possible explanation of the predictability you point to."

No, that's just you indulging in wishful thinking and seeing exactly what you want to see, much the way folks from various flavors of various religions see different things in texts like Bible, the Koran, etc.

# posted by

Charles Gittings : 9:28 AM

If "activism" means injecting political views into judicial interpretation, it is absurd to suggest that the recent votes of conservative Justices are not predictable on political grounds.

This might be a valid argument if you could demonstrate where conservative judges regularly ignore the constitution in order to reverse statutes or prior precedent in order to arrive at their preferred conservative policy outcome. I notice that you do not.

Rather, conservatives in the last session cited correctly to Articles I and II in their dissent from Boumediene, the Second Amendment in the Heller majority, the First Amendment in reversing the limits on political speech imposed by the Millionaire’s Amendment to the McCain-Feingold campaign finance law, and the federalism provisions in upholding state criminal procedures against presidential or World Court intervention.

Thus, I would modify Tray's argument somewhat and suggest that, while the Constitution may not uniformly reflect conservative political policy, preserving the Constitution and constitutional government is a conservative political principle.

# posted by

Bart DePalma : 9:50 AM

Brian, you say that Orin's observation (comparing invalidations of state laws and federal laws) "does not detract from the thrust of the post: that it is wrong to assert (as conservative ads do) that Democratic judicial appointees are 'activists,' whereas Republican appointees are not."

Fair enough. "Activist" could be the wrong word for "conservatives" to use to capture what they regard as the problem with "liberal" judges.

But, I understood the "thrust" of your post to be not just that conservatives were using the wrong word, but that conservative judges are guilty of all the same things they claim liberal judges do. And, Orin's observation suggests to me that there might be some distinctions that could matter to reasonable conservatives: For example, perhaps, given the structure of our Constitution, it is (somehow) worse for a federal court to invalidate state laws? Or, perhaps (as I have argued elsewhere), it is reasonable for conservatives to be more troubled by decisions declaring that a particular policy is, substantively, offensive to constitutional norms -- and so removing from the democratic arena a particular normative or moral question -- than by decisions declaring that the Congress lacks the Article I power to enact a certain regulation (regardless of its substantive policy merits)?

# posted by

Rick Garnett : 11:44 AM

Rick: "...given the structure of our Constitution..."

Part of the problem with this line of thinking is that it presupposes there is no room for contention as to the structure of our Constitution and exactly how that structure is meant to operate. This, to my eye, makes this line of reasoning suspect.

Rick: "...and so removing from the democratic arena a particular normative or moral question..."

With apologies to Professor Levinson and other "untrammeled democracy" fans, this is precisely the job of the court, to act as check and balance in those cases where matters cannot be left to popular will. What matters are those? Again, a contentious issue. But it is certain that the framers and many other thinkers since the framing believe that some rights should be inalienable, no matter what the vote.

I don't have the link handy, but I think it was here at Balkinization that I read of a paper which took an empirical approach to studying "activism", the upshot of which was that ideology was the best predictor for both liberal and conservative justices. (Actually, I'm beginning to think it was a post by Professor Tamanaha, either that or it's in his book "Law as a Means to an End".) That research, coupled with the professor's observations on this post, argue strongly that GOP complaints about activist judges are at best disingenuous.

But it's good electioneering.

# posted by

Robert Link : 12:00 PM

"Part of the problem with this line of thinking is that it presupposes there is no room for contention as to the structure of our Constitution and exactly how that structure is meant to operate."

There is, of course, room. Just not nearly ENOUGH room to accommodate favored liberal, (And many popular conservative...) policies.

Take the interstate commerce clause. There's certainly room to reasonably discuss what actually constitutes interstate commerce, but the current 'interpretation' of the clause is insanely expansive, reaching matters that are neither commerce nor interstate, on the theory that a clause which explicitly authorizes regulation of commerce, which crosses state boundaries, somehow implies regulation of anything which might "effect" such commerce, by act or omission.

That's not interpretation, that's a decision to replace what the Constitution actually says with what somebody thinks makes more sense from a policy perspective.

# posted by

Brett : 12:52 PM

Brett: "Just not nearly ENOUGH room to accommodate favored liberal, (And many popular conservative...)"

The more we can stick to this kind of even-handedness, the better for the general tenor of this comments section. Would you stipulate "Unitary Executive" is one such popular conservative policy, offered to counter-balance your example of the commerce clause?

# posted by

Robert Link : 1:14 PM

Rick,

A nuanced approach of the sort you describe might well reveal that conservatives and liberals exercise the power to strike for different reasons. We can then discuss whether these practices are justifiable in constitutional or judicial terms.

Clint Bolick's 2007 book, David's Hammer: The Case for an Activist Judiciary (published by Cato), is an example of this sort of analysis.

But that is not how this issue is typicially presented, as the NYT article shows. It's this: Democratic appointees are "activists;" Republican appointees are not. That's baloney.

My second point is that judicial activism (by either side) is an exaggerated threat that pales in comparison to the other very serious problems we face--the issue is an election ploy, a distraction.

As several recent studies of judging indicate, the majority of federal judges follow the law a substantial bulk of the time (and what judges should do when the law is ambiguous or runs out raises serious and complicated questions about which there are no simple answers).

Thanks for your comments.

Brian

# posted by

Brian Tamanaha : 2:50 PM

Those that live in glass houses:

["Bart", to Charles Gittings]: BTW, you might want to ensure you know of which you speak before you fly of the handle yet again slandering others as liars and fascists.

You've been repeatedly caught (by myself and others) making outright false statements.

Cheers,

# posted by

Arne Langsetmo : 2:52 PM

Tray:

But what if we have a deeply conservative Constitution, and the conservative Justices are just faithfully interpreting it? It's at least a logically possible explanation of the predictability you point to.

But what if we have a nation "founded on Christianity"? Isn't it "arguable"? It would seem so....

I'd note in passing that your hypothetical opens up the alternative that it is not a "deeply conservative Constitution", and as such, this only reinforces Prof. Tamanaha's point....

Cheers,

# posted by

Arne Langsetmo : 2:56 PM

"Bart" DePalma:

This might be a valid argument if you could demonstrate where conservative judges regularly ignore the constitution in order to reverse statutes or prior precedent in order to arrive at their preferred conservative policy outcome.

I keep pointing out one egregious example of such, and you keep ignoring it. The Eleventh Amendment.

Cheers,

# posted by

Arne Langsetmo : 2:58 PM

But what if we have a deeply conservative Constitution, and the conservative Justices are just faithfully interpreting it?

The problem is, there's no standard of reference -- no Archimedean point -- from which to judge whether we do have a "deeply conservative Constitution", nor, for that matter, a "deeply liberal one". In the absence of such a standard, it makes no sense to dismiss one side's position as illegitmate a priori. All we can do is argue about which one makes the most sense.

# posted by

Mark Field : 3:13 PM

Speaking of rewriting the law, Judge Urbina, under the guise of a habeas corpus hearing for the Uighur detainees at Gitmo, has just ordered them immigrated into the United States and ordered ICE not to detain them as illegal aliens.

However, ordinary voters should not be concerned that the judiciary is importing admitted terrorist trainees into the United States. After all, the bugaboo of activist judges is simply an election scare tactic.

Madness.

# posted by

Bart DePalma : 3:21 PM

On Oberst Bart's latest post, the NY Times report is that the Judge has ordered the habeas corpus production of 17 Guantanamo detainees (the Uighurs) in his courtroom: NTY Report

The paper reports this interesting exchange:-

"Judge Urbina said that the detention of the 17 prisoners — members of the Uighur ethnic group, a restive Muslim minority in western China — was unlawful, noting that the Constitution prohibits indefinite imprisonment without charges.

“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for the detention,” he said.

The judge ordered the 17 detainees, all of whom are men, brought to his courtroom next Friday, but the government suggested that it would immediately appeal the ruling, and that perhaps immigration officials might detain the men on their arrival in the United States.

The judge reacted angrily, saying he did not want the detainees molested by anyone in the government, in what he called an urgent matter.

“There was a pressing need to have these people, who have been incarcerated for seven years — to have those conditions changed,” Judge Urbina said.

He rejected a request from the Justice Department for a stay of his orders, suggesting that he was impatient with the government. “All of this means more delay,” he said, “and delay is the name of the game up until this point.”

Far from "madness" as LSR Bart puts it, this sounds as if a Federal Judge has decided to apply habeas corpus practice in accordance with the sound conservative judicial practice of centuries.

Perhaps Senator McCain can tonight offer these unlawfully detained persons one of his many mansions in which to adjust to freedom under the law. Failing that, perhaps Bart can help - after all some of the upland areas of Colorado should suit the Uighurs very well.

# posted by

Mourad : 3:38 PM

Mourad:

Precisely when has it been the practice under US habeas corpus review to compel the immigration and release into the United States of former enemy combatants?

This ruling is not conservative under any rational meaning of that term.

Either the President needs to appeal this or simply ignore the unlawful order of the court, release these men back to Afghanistan and allow the Afganis to do what they please with them.

# posted by

Bart DePalma : 3:48 PM

Of course. If these people are as evil as the State claims, all it has to do is convince a Judge of that. It's one of those, what do you call, basic human rights. The freedom agenda is celebrating today. (Note: this does not necessarily refer to those who merely call themselves part of the freedom agenda).

# posted by

jpk : 3:50 PM

Mark Field: "...it makes no sense to dismiss one side's position as illegitmate a priori."

Fine as far as it goes, but it presupposes a context of reasoned argumentation rather than the rhetoric of persuasion in the age mass communication and the big lie. Failure to acknowledge this distinction remains the greatest error of reasoning liberals. The game of electioneering is the latter, and interactions with recognized political advocates needs to proceed accordingly.

btw, where's the Mark Field blog? ;)

# posted by

Robert Link : 3:51 PM

The real question of course is why it has taken so long for the Courts to do their job here. Perhaps a new term is needed: "passivist judges".

# posted by

jpk : 3:55 PM

The problem is, there's no standard of reference -- no Archimedean point -- from which to judge whether we do have a "deeply conservative Constitution", nor, for that matter, a "deeply liberal one". In the absence of such a standard, it makes no sense to dismiss one side's position as illegitmate a priori. All we can do is argue about which one makes the most sense.

I don't want to dismiss anyone's side as illegitimate a priori. I'm just saying that predictable conservative votes just might be explained by reasons other than politics. Take Heller. The Justices who formed the majority were just the ones you'd expect to do so. But perhaps they were simply voting out of intellectual honesty, while the dissenters were voiting their policy preferences. I've never delved into the Second Amendment scholarship, but if even Sandy Levinson says there's an individual right, I tend to think there probably is one. There are a lot of cases where it strikes me, at least, that the conservative members of the Court are more intellectually honest than the liberal members. Look at Giles v. California, last term's Confrontation Clause case. Scalia does a searching and pretty convincing reading of 18th century common law, and Breyer's response ultimately is, "well, domestic abuse is a big, big problem in this country, and it'd be such a shame if wife-beating husbands could kill their wives to suppress them from testifying about their being assaulted," and Souter has this odd concurring opinion where he says that perhaps a mere history of domestic violence would be enough evidence to show that a defendant killed his wife with purpose of suppressing her testimony, because after all, abusers by definition isolate their victims from outside help; that's just the nature, he says, of the "dynamics of abuse." The one side's argument is transparently policy-driven, whereas I don't think that Scalia has any special ideological commitment to making it easier for domestic abusers to get off.

# posted by

Asher : 3:56 PM

this issue is typicially presented: Democratic appointees are "activists;" Republican appointees are not. That's baloney.

Of course. To frame the issue is to win the debate.

If it makes you feel any better, I have a hunch that none of it can possibly make enough difference to affect electoral outcomes this time.

# posted by

jpk : 3:59 PM

Tray: "I'm just saying that predictable conservative votes just might be explained by reasons other than politics"

I'll take this as another chance to plug Professor Tamanaha's fine book, "Law as a Means to an End" wherein, as I recall, you will find non-trivial empirical support for the assertion that while one might stipulate the possibility of other explanations, politics is the explanation that best matches the data.

# posted by

Robert Link : 4:01 PM

I've always thought Bart was only nominally qualified to practice law.

US Habeas Practice is substantially that which pertains in all jurisdictions where the Great Writ is known.

The Court has already held hearings where the government has had the opportunity to show cause that the persons were lawfully detained. It has lost. The government has now conceded (i) that these persons were not enemy combatants and (ii) that these persons cannot be returned to the country of their nationality.

The Court will therefore on the production of the persons concerned before the Court determine whether there is any other lawful authority to continue to hold them in US custody. If no, then they will have to be released and I suspect they may have to be given refugee status in due course. But that may be a matter for another jurisdiction.

They certainly did not attempt to enter the USA unlawfully. They were taken into government custody as a voluntary act by the government.

Pottery barn rule - you break - you pay.

# posted by

Mourad : 4:25 PM

This comment has been removed by the author.

# posted by

Charles Gittings : 4:29 PM

I'm just saying that predictable conservative votes just might be explained by reasons other than politics. Take Heller. The Justices who formed the majority were just the ones you'd expect to do so. But perhaps they were simply voting out of intellectual honesty, while the dissenters were voiting their policy preferences.

A single anecdote isn't very persuasive on this score. Just to pick an obvious example, who in their heart of hearts really believes that 5 members of the Court support child rape as a policy preference? Who really thinks that the majority in Morrison favored violence against women on policy grounds?

If you want to make your argument, you first have to make a convincing showing about which policy is being implemented, and then you'd have to show that such policy arguments tend to prevail in general. As Robert Link's posts suggest, I think you'll find it difficult to come up with such evidence.

# posted by

Mark Field : 4:30 PM

What former enemy combatants?

There's never been any credible evidence the Uighurs were combatants or enemies. What the evidence shows is that they were kidnapped, tortured, and unlawfully imprisoned by the Bush administration in violation of US law.

As for Juge Urbina's ruling, if courts only made rulings that had been made before, they'd never rule on anything.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness[.]"

Judge Urbina didn't do anything more or less than uphold the law.

# posted by

Charles Gittings : 4:33 PM

The problem with Bart, is that he only regards the decisions of the Court as being in accordance with the law if he happens to agree with them.

It's a sort of "folie de grandeur" which might be excusable from some very learned source - but from Bart...!

If the government think the Judge has acted outwith the law or his proper discretion, then they have their remedies by way of appeal, but unless the appellate jurisdiction grants a stay, the Order is to be obeyed.

In our jurisdiction that would entail contempt proceedings against any official who willfully disobeyed or caused another to disobey the Order of the Court.

When Michael Howard was our Home Secretary, contempt proceedings were instituted when his department neglected to comply with an order not to deport someone - and there was a terrible fuss.

The flexing of some judicial muscle has been slow in coming, but it is welcome nevertheless.

# posted by

Mourad : 5:03 PM

Further update on the Uighurs from Bloomberg:

"The judge ordered the men to be brought to his courtroom in Washington in three days to be released into the custody of local Uighur families.

While the detainees were cleared for release in 2004, the government said it couldn't find any country willing to accept them and feared they would be persecuted if returned to China. The Bush administration argued it has wartime authority to hold the men indefinitely even if they aren't enemy combatants.

The Uighurs are among an estimated 225 detainees still at Guantanamo Bay.

The ``court rules that the Uighurs detainees be released into the U.S. and brought to this court'' on Oct. 10 for a hearing on the conditions of release, Urbina said in his order. ``The court directs that a representative of Homeland Security be present for the hearing.''

So, as I thought, the release will be conditional until the immigration status of the former detainees is resolved.

Seems sensible.

# posted by

Mourad : 5:13 PM

Scotus Blog now has Post on Uighur Hearing with link to Minute of Order

# posted by

Mourad : 5:42 PM

"Bart" DePalma:

Speaking of rewriting the law, Judge Urbina, under the guise of a habeas corpus hearing for the Uighur detainees at Gitmo, has just ordered them immigrated into the United States and ordered ICE not to detain them as illegal aliens.

How's that "rewriting the law"? That's what the Supreme Court ordered (in what is a case of pretty much first impression, with an opinion based on the language of the Constitution).

However, ordinary voters should not be concerned that the judiciary is importing admitted terrorist trainees into the United States. After all, the bugaboo of activist judges is simply an election scare tactic.

I note that in other news, the "peace talks" that "Bart" bally-hooed ("We have won the Iraq War and are perhaps on the verge of doing the same in Afghanistan as CNN is reporting the Taliban are treating for peace with the Afghan government in Saudi.") as showing us "winning" in Afghanistan, the report actually said this:

"A former Taliban ambassador said Monday that the hard-line militants sat with Afghan officials and Saudi King Abdullah over an important religious meal in Saudi Arabia late last month as the insurgency raged back home.

"Abdul Salam Zaeef, the Taliban's former ambassador to Pakistan, denied that the get-together could be construed as peace talks. But President Hamid Karzai has long called for negotiations with the Taliban, and the meeting could spur future initiatives."

And it went on:

"Zaeef, who spent almost four years in the U.S. military prison in Guantanamo Bay, Cuba, said none of the representatives from the Taliban or Hekmatyar's group was authorized to carry out peace talks."

So one of our 'guests' in Gitmo is now breaking bread with King Abdullah. That's what "Bart" calls "winning"....

Cheers,

# posted by

Arne Langsetmo : 6:21 PM

"Bart":

Precisely when has it been the practice under US habeas corpus review to compel the immigration and release into the United States of former enemy combatants?

The Uighurs weren't "enemy combatants", either former or present. Bare assertion (or "designation") -- by Dubya or your -- doesn't make it so. That was the whole point of the habeas hearing.

Cheers,

# posted by

Arne Langsetmo : 6:26 PM

Judge John E. Jones III is the poster child for "activist judges." He was protesting too much when he said in his Kitzmiller v. Dover opinion (page 137),

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board . . . . .

But later, in an interview, he couldn't even define the term "activist judge":
On accusations that the Dover decision made him an "activist judge": "People term 'activist judges' judges they don't agree with."

But Judge Jones is an "activist judge" by any definition. He showed extreme prejudice against Intelligent Design and the Dover defendants -- regardless of whether or not ID is a religious idea -- by saying in a Dickinson College commencement speech that his Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions:

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Judge Jones claims to be a big stickler for judicial precedent but his above interpretation of the establishment clause has no judicial precedent and is in fact contrary to judicial precedent. Judge Jones now defends his Dover decision on the grounds of "judicial independence" and "the rule of law."
But the principle of "judicial independence" can go only so far in justifying an unpopular decision -- the public is supposed to be generally supportive of the constitutional principles and laws that court decisions are supposed to be based upon. Megalomaniacal Judge Jones fancies himself as a white knight in shining armor -- or a Horatius at the bridge -- heroically defending the Constitution and the ideals of the Founders against the tyranny of the great unwashed majority. Where a decision is unpopular, the court opinion should at least argue persuasively that the decision was reasonable and fair, but the Kitzmiller v. Dover opinion utterly failed to do this -- the majority of expert opinions in law journal articles and elsewhere were critical -- often harshly critical -- of the opinion.

# posted by

Larry Fafarman : 5:38 AM

Larry Fafarman:

But Judge Jones is an "activist judge" by any definition. He showed extreme prejudice against Intelligent Design ...

... as something that could be called "science". Basically because it isn't. See, e.g., the "Wedge document".

... and the Dover defendants -- regardless of whether or not ID is a religious idea -- ...

If it is a "religious idea" (which it is), case closed.

... by saying in a Dickinson College commencement speech that his Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions:

"... this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

This is unremarkable. But he didn't base his judgement on that. He just stated that this was what a number of prominent founders thought. Which they did.

Cheers,

# posted by

Arne Langsetmo : 5:19 PM

>>>>>> ... as something that could be called "science". Basically because it isn't. <<<<<<

Irrelevant. The question here is whether or not Judge Jones was prejudiced. He obviously was.

>>>>>>> This is unremarkable. But he didn't base his judgement on that. <<<<<<<

Wrong. He said it was something that he learned in his undergraduate education at Dickinson (the statement was actually a plagiarized quote mine from a book that was published long after he graduated) and that it helped him make his decision in the Kitzmiller v. Dover case. Here is my original quote (shown in bold) in context:

One might be tempted to assume that I received all of the tools necessary to understand the complex expert testimony and determine the facts solely through my law school education. If so, they would be incorrect. In fact, it was my liberal arts education, achieved right here at Dickinson College that provided me with the best ability to handle the rather monumental task of deciding the Dover case . . . .

. . . .As has been often written, our Founding Fathers were children of The Enlightenment. So influenced, they possessed a great confidence in an individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason. And that reason was best developed, they clearly believed, by a broad based liberal arts education that caused its recipients to engage the world by constantly questioning and persuading others.

Ironically, but perhaps fittingly for my purposes today, we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

As I hope that you can see, these precepts and beliefs, grounded in my liberal arts education, guide me each day as a federal trial judge. <<<<<<<

Nothing could be clearer than the fact that he based his Dover decision on that interpretation of the establishment clause.

>>>>>> He just stated that this was what a number of prominent founders thought. Which they did. <<<<<

So what? That is not what the establishment clause says and that is not how the courts have interpreted it.

# posted by

Larry Fafarman : 6:23 PM