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Federalist Society

HOT TOPICS JUNE 2001

When President George W. Bush announced his first nominations for the federal bench, he declared, "Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. To paraphrase James Madison, the courts exist to exercise not the will of men, but the judgment of law.  My judicial nominees will know the difference." Yet despite this assurance, and the recent nominations of many individuals meeting these qualifications to the federal bench, some critics believe these Bush nominees are little more than ideologues, adherents to a philosophy allegedly adopted by Supreme Court Justices Rehnquist, Scalia, and Thomas of "conservative judicial activism." This philosophy, which critics trace to the 1995 Lopez v. United States decision, accuses conservatives of legislating from the bench by ruling to overturn decades of precedent in areas such as healthcare, disability law, environmental protection, and welfare.

As one of its first orders of business under Democratic control, the Judiciary Committee has decided to investigate this debate by examining the role of ideology and activism in the judicial process. On Tuesday, June 26, New York Democrat Charles Schumer, the new chairman of the Subcommittee on Administrative Oversight and the Courts, held a hearing entitled, "Should Ideology Matter? Judicial Nominations 2001." Senator Schumer called this hearing to determine if a "rational consideration of ideology" should be taken into account in the confirmation process. Schumer, who identifies excellence, moderation, and diversity as other vital qualities in a good judge, wonders if ideology should be as important a factor, since judges are often the "ultimate test" in bipartisanship.

During the hearing, some panelists decried the Supreme Court for having what they perceive as activist, ideological tendencies. Harvard Law Professor Laurence Tribe expressed his view that this Supreme Court has been the most activist in over 55 years and is "utterly contemptuous" in its willingness to overturn acts of Congress and step into the 2000 presidential election. University of Chicago Law Professor Cass Sunstein
spoke of how the Court has limited Congressional power and invalidated legislation receiving considerable bipartisan support. He believes the
Court's rulings bear an "eerie resemblance" to the 1980 Republican Party Platform in their ideological fervor. Marcia Greenberger of the National Women's Law Center concurred, citing as examples the VAWA and Garrett cases as examples of the activism of the current Court.

UCLA Law Professor Eugene Volokh refuted these charges of activism, arguing that both the Supreme Court as a whole and its conservative judges are well within the mainstream. The Supreme Court has enforced the Bill of Rights and the structural constraints of the Constitution, not legislated from the bench. Clint Bolick of the Institute for Justice pointed out that many of the current court's decisions, concerning flag
burning, gay rights, and campaign finance, could hardly be characterized as "conservative" or "activist."

These charges of "conservative judicial activism" will be further explored by the Judiciary Committee. On July 11, Committee Chairman Patrick Leahy will hold hearings to discuss the Rehnquist Court, federal jurisprudence,
and conservative judicial activism. Future Judiciary Committee hearings will follow on the Senate's role in the judicial process, the burdens the nominees face in defending their records in confirmation proceedings, and the significance of recent Supreme Court federalism decisions.

For this June edition of HOT TOPICS, we present a bit more of this debate on conservative judicial activism. Responding to an article by Simon Lazarus that appeared in the Washington Post on June 3 charging the Rehnquist Court and Bush judicial nominees with being "conservative judicial activists" are Milwaukee County Circuit Court Judge Michael Brennan and Dr. Michael Greve, Director of the American Enterprise
Institute's Federalism Project. Judge Brennan and Dr. Greve attack Lazarus' arguments and demonstrate why judicial review is misunderstood to mean activism.

Click here to read the debate: http://www.fed-soc.org/junehottopic.html.