The two main points being made by Democrats in support of Elena Kagan’s nomination to the Supreme Court merely serve to remind us that Democrats are inveterate liars.
First, it has been repeatedly observed how wonderful it is that Ms. Kagan is “someone who’s an intellectual heavyweight who’s going to give Roberts a run for the money” — as Sen. Amy Klobuchar, D-Minn., put it.
Whew! Good thing the Democrats got that Hispanic nominee out of the way, so they could appoint somebody with intellectual heft! Hey! What happened to the “wise Latina”? At least now you know what liberals really think of you, Sonia.
Second, liberals are raving about Kagan’s “skill at building a consensus … reaching out and building coalitions” — as Sen. Dick Durbin, D-Ill., said last week. It’s as if they’re talking about a governing majority in the Senate. Next thing you know, liberals will be complaining about a “do nothing” Supreme Court.
On MSNBC’s “Hardball” back in May, Sen. Klobuchar said: “We want to get some things done on this court.” Get some things done? Amy Klobuchar is not considered a lunatic, but this was a crazy, giveaway moment. (Durbin is also not considered a lunatic, just a hack.)
The Supreme Court is not supposed to be “getting things done.” Durbin’s and Klobuchar’s statements reveal a massive misunderstanding of the role of the court.
Congress, as the people’s elected representatives, is supposed to “get things done.” If they don’t, that usually means the people don’t want those things done. It’s not the court’s job to say: “Hey, Congress, you forgot to enact this! Don’t worry, we’ll take care of it.”
But liberals see the Supreme Court as their backup legislature, giving them all the laws Democrats can’t pass themselves because they’d be voted out of office if they did.
Can’t get Americans to approve of abortion? Get the Supreme Court to do it! Can’t get Americans to ban the death penalty? Get the Supreme Court to do it! Can’t get Americans to release criminals? Get the Supreme Court to do it!
Usually Democrats denounce the idea that they want an activist judiciary as a vicious, right-wing lie. But now they’re complaining that the court’s not activist enough — and they need Kagan up there to “get some things done”!
Despite the herculean efforts of liberals to redefine “judicial activism” as “overturning laws,” the two are completely unrelated.
It would be like redefining “terrorist” to mean “airline passenger.” Some airline passengers are terrorists and some aren’t. They have nothing to do with each other, although, sometimes, both notions come together and you get an airline passenger who’s a terrorist — and blows up the plane.
It makes as much sense to say, “Republicans say they’re against ‘judicial activism,’ but conservative justices write longer opinions than liberal justices do.”
As former Chief Justice William Rehnquist described the proper role of judicial review in a constitutional democracy, the courts have the last word “as to whether a law passed by the legislature conforms to the Constitution.”
It would be every bit as “activist” for the Supreme Court to refuse to strike down a law that violated the Constitution — e.g., Chicago’s anti-gun laws or Congress’ restriction of free speech via the campaign finance laws — as it is for the court to strike down laws that do not violate the Constitution.
We know that laws restricting speech and the right to bear arms violate the Constitution because it says so. The very first two items in the Bill of Rights prohibit the government from infringing on — I quote — “the freedom of speech” and “the right of the people to keep and bear arms.” You can look it up yourself.
If Congress passed a law banning books critical of Hillary Clinton and the court refused to strike down that law, that would be “judicial activism.”
Historically, judicial activists have preferred to strike down laws that are perfectly acceptable under the Constitution, which may be where the confusion arises. Constitutionally permissible laws include laws against abortion and laws providing for the death penalty.
We know that laws prohibiting abortion do not violate the Constitution because neither abortion, nor its synonyms, nor anything vaguely resembling abortion, is mentioned in the Constitution, much less granted specially protected status.
And we know that laws providing for the death penalty are permitted by the Constitution because the document goes on and on about capital crimes. The Fifth Amendment, for example, says:
— “No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury”;
— “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”;
— “nor be deprived of life, liberty, or property, without due process of law.”
States are welcome to ban the death penalty on their own, but the Constitution requires only three things for the imposition of a death sentence: a grand jury indictment, no double jeopardy, and a hearing. The End. Love, the Founding Fathers.
And yet, the Supreme Court banned the death penalty — even with those three safeguards — as “unconstitutional” from 1972-1976.
Several justices — including Kagan’s mentor, Justice Thurgood Marshall — continually voted to ban the death penalty, despite the fact that the Constitution clearly, repeatedly, unquestionably provides for capital punishment.
That’s how liberals “get some things done.” That’s judicial activism.
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