Judicial Activism

I see John McCain has made a speech parroting the old nonsense about “judicial activism” and promising to follow the Bush precedent of appointing “strict constructionists” to the Federal Courts. This is a pitch guaranteed to warm the hearts of the Republican Conservative faithful who moan about “judicial activism” whenever a court decision goes against them.

I have two observations. The first is that “judicial activism” is simply the art of getting the courts to recognize an injustice that needs to be redressed before one can hope to get it recognized by the electorate at large.

If you follow the history of the battle against school segregation it wasn’t the single court case of Brown vs. The Board of Education. It was a protracted campaign building precedent upon precedent in less far reaching cases until it was felt that an assault upon segregation in general could succeed.

Why not leave it up to the electorate as Conservatives like to say these days? Because the fact of the matter is that the view of the electorate changes slowly. I doubt that today anyone would argue that segregation has merits but in the early 1950’s it was the majority view in many states and had the benefit of court precedent on its side as well. Remember the phrase “separate but equal?” It’s sort of the same thing some folks say about “civil unions” vs. marriage. Here’s a news flash, separate, or different, is inherently unequal.

The courts are the last bastion of royalty, the last stronghold of the wisdom laden elders that we rely upon to insure that society follows the right path. They are the ones entrusted with the burden of protecting the minority from the tyranny of the majority. Do I like the idea that we still need a council of elders above the will of the people? No I don’t. Do I accept it as a reality of life? Yes I do.

“Judicial activism” is simply the elders of the tribe realizing before the majority of the people that there is an injustice to be made right.

My second observation is that McCain keeps agreeing with Bush.

The Bush administration has arguable been the greatest disaster in the history of the American Republic. Not only are we bogged down in a quagmire of a war that was not, is not, and never has been necessary, we’ve seen a budget surplus degrade into the biggest deficit in history (so much for the Republican mantra of “financial restraint”), we’re mired in a recession, the country’s influence around the globe has plummeted along with its prestige and we’ve seen this administration flaunt the law by instituting torture and illegal wiretapping.

We’ve seen this administration tell bald faced lies to the American people and congress, out an American intelligence agent, assault science by manipulating or censoring scientific data that didn’t agree with its preconceived notions and thumb its nose at the principle of the separation of church and state by financing “faith based” initiatives.

So why the hell would anyone in his right mind vote for someone who’s going to continue the policies of the last eight years?