The Federalist Society held another fine event yesterday at the National Press Club, which a few of us from the office had the pleasure of attending. Titled “Judicial Activism vs. Judicial Restraint: Is the Alito Nomination Sharpening the Debate?” the debate featured Wendy Long of the Judicial Confirmation Network; Prof. Stephen B. Presser, TAS contributor and of Northwestern School of Law; Seth Rosenthal of Alliance for Justice; and Prof. Jonathan Turley of the GW Law School. Stuart Taylor, National Journal columnist did his best to keep the comity high and verbosity low.
The entire hour-and-a-half session was entertaining and enlightening, so it’s difficult to choose from the highlights. In the course of this last year of judicial controversy, the left has managed to muddle the definition of “judicial activism” and water it down merely to mean not deferring to democratic choice.
Judicial restraint and judicial activism are easily recognizable, as Prof. Presser pointed out in a series of comparisons. The former is characterized by the rule of law, while the latter by “calculated mendacity.” The Alito nomination is reminding us that the role of judges is to apply the law, not carry out substantive agendas. If we agree that judicial objectivity is dead, in the tradition of Oliver Wendell Holmes’ legal realism, then professors are wasting their time in law schools. If we pretend it does exist, then we should just look at a nominee’s training and integrity, as the Senate did in considering Ruth Bader Ginsburg. By those standards, Presser said, Sam Alito should face an easy confirmation.
Rosenthal agreed with Stuart Taylor’s “neutral” definition of judicial restraint: deferring to democratic choice. He added another component: respecting decisions of prior courts. Rosenthal had difficulty in Q&A saying which trumps the other when they conflict. This definition is particularly poor when prior decisions and public opinion supports laws that are clearly unconstitutional, as Wendy Long argued. Judicial restraint is practiced when courts follow their proper constitutional role. Deferring to democratic choice is only part of the picture, Long said, but that definition ignores the Constitution. “In some cases, when one exercises judicial restraint, one is deferring to democratic branches of government. In other cases, one is exercising judicial restraint by overruling the actions of democratic branches of government. … Judicial restraint means when a court follows its defined role under the Constitution, deciding controversies that come before it using the laws that are made by the people.”
Turley offered another measure of judicial activism: no coherent legal philosophy. Justice Sandra Day O’Connor embodies this unhinged judicial style, as she uses no apparent rationale from case to case. Somehow, this “take each case as it comes” approach is exalted in the media. However, after 15 years on the bench, Turley said, after examining constitutional questions, you should be able to say, “‘Yes, I have a judicial philosphy.’ … There was a time when we expected judges to have a philosophy. I think it’s a good thing. Scalia may be the only member of the court who belongs there. … If you don’t have a judicial philosophy, what you’re saying is, ‘I’m going to take each case as it comes,’ as if that’s some noble thing. … No! Don’t do that! Don’t sit there and say, ‘Well! These facts are pretty compelling.’ … I think that’s a serious problem.” Turley is troubled by Alito’s jurisprudence because he looks like another O’Connor — “every possible flavor of a judge.”
Except for Rosenthal’s adherence to anti-Alito sound bites, this debate showed that the current discourse over judicial activism, as well as some senators’ understanding of it, barely scratch the surface. This post cannot do justice to the issue or the arguments presented, but the debate will be aired on CSpan sometime in the near future.