NOREEN: Brace yourself for activist judges
BARRY NOREEN
May 15, 2009 - 3:50PM
"Activist judge." "Judicial activism."
You've seen or heard these terms many times, often barked out by over-caffeinated talk show hosts. Well, get ready, because the talk has already begun and soon we'll all be immersed in it.
President Barack Obama is about to nominate someone to the U.S. Supreme Court to replace Justice David Souter, who has announced he will step down at the end of the court's current term. Souter, 69, was touted as a political conservative when appointed by President George H.W. Bush, but Souter turned out to believe in drawing narrow decisions based on the law, not politics.
Thus, political conservatives quickly became disenchanted with a justice who would not agree to completely reverse Roe v. Wade.
These same people soon will rail about Obama's nominee, regardless of who it is, and it's a good bet the "activist judge" phrase will be thrust upon us again, just like "widespread panic" or "rogue nation."
Colorado Supreme Court Justice Gregory Hobbs said the cries of "activist judge" typically come from "somebody who takes exception to the majority opinion. If they have a political expectation, the court is bound to disappoint them."
So Hobbs, appointed in 1996, believes the "activist judge" moniker is "not very meaningful and it's certainly over-used."
Jean Dubofsky was the first woman to serve on the Colorado Supreme Court. When she stepped down, she went to work as an attorney again, leading the effort to attack Amendment 2, the Colorado measure that sanctioned discrimination against gays but was struck down as unconstitutional.
"My sense of a judicial activist," Dubofsky said, "is a judge who goes beyond the issues the parties have raised to address something that really wasn't before the court. In recent years I've heard the term used primarily by a litigant who doesn't like the result in a case."
Dubofsky noted that the Colorado Springs-based Coloradans for Family Values raised the "judicial activism" verbiage when it lost at the Colorado Supreme Court level and later, when the U.S. Supreme Court upheld the Colorado ruling.
Attorney Bruce Hausknecht, judicial analyst for Focus on the Family, might disagree with Dubofsky on many issues, but his definition of an activist judge sounds like hers: "Judges creatively getting to a result that is not justified by the constitution or the statutes."
While he disagreed with the Amendment 2 rulings, Hausknecht said, "I do not put that into my basket of judicial activism."
In a recent interview, Sen. Orrin Hatch, R-Utah, noted that Obama "said that a judge has to be a person of empathy - what does that mean? Usually that's a code word for an activist judge."
Sure, there is such a thing as judicial activism. But Hobbs, Dubofsky and Hausknecht are right - it's a term often used by partisans who just came out on the losing side.