Not to sound like the beginning gag of a standup comedian or anything, but have you ever noticed that when conservatives drop the term “activist judge” it’s always in reference to a ruling they don’t like? “Legislating from the bench” is another term of art they’re quick at the tongue to traduce, meaning a member of the judiciary creating laws rather than interpreting them. You know, egregious overreaches by the courts such as Brown v. Board of Education or Loving v. Virginia. But such selective slander seldom if ever seems to apply when a conservative judge or court calls the shots. Who labeled Chief Justices Rehnquist or libeled Roberts as “activist” in Bush v. Gore or Citizens United, respectively? Both were arguable breaches of judicial probity. It seems only a conservative can accuse another — anyone — as activist, irrespective of supporting fact or substantive grounds. For just as when Republicans ballyhoo a hue and cry about invasive government only when it comes to business regulations or environmental protections — and never about whom you are sleeping with, or how — their bete noir becomes their best friend when a conservative agenda is gaveled, no matter how abusive of power. It’s heads I win, tails you lose.Case in point, so to speak: Texas governor and present contender* for the GOP nomination running for president, Rick Perry. In his book Fed Up! Our Fight to Save America from Washington Perry decries that “the Fourteenth Amendment is abused by the Court to carry out whatever policy choices it wants to make in the form of judicial activism.” Embarking on harkened nostalgia, he calls for judicial restraint and a reversion to the good old days when the citizenry could self-govern without them pesky courts meddling around nohow . But upon learning that he failed to qualify for the Virginia Republican Primary by not garnering the minimum requirement of 10,000 signatures to have his name appear on the ballot Perry changed his tune about intervening courts faster than a [insert folksy Texan idiom here] and implored that a district court of Virginia invent a new standard of total signatures required to qualify a candidate to appear on a ballot. But that’s only half of it: his legal argument claims that Virginia law infringes upon his own 14th Amendment rights. Call it the audacity of hopelessness.
(Though not so audacious as his one of his rivals, Newt Gingrich (who also, incidentally, failed to qualify to compete in the Commonwealth of Virginia). The former Speaker of the House has gone so far as to call for the arrest and/or subpoena of judges who have made “controversial” decisions by federal law enforcement to then testify before a congressional hearing. Controversial to whom?)
No matter, such chest-thumping rhetoric is the stuff of national campaigns and their clap-and-cheer pabulum. It’s when everyday people (whoever we are) regurgitate these thoughtless soundbites that is more alarming. Like windup automatons and satirical cliches we follow the formulaic script perfectly:
Step 1: Find a self-appointed bloviating blowhard.
Step 2: Have him/her incite a crowd into a mob mentality by use of us/them solipsisms.
Step 3: Obfuscate facts and scapegoat some Other as the cause of all this tragic undoing.
Step 4: Give said frenzied crowd bats, torches, and pitchforks (or flags, armbands, and ribbons).
Step 5: Point to Other, then sit back and watch the show.
Who needs an enemy when there’s always ourselves, and our own gullibility is the smoking gun?
Last year in Wisconsin conservatives had a field day with Circuit Court Judge Maryann Sumi, who was tea-partied and tar-feathered as an “activist judge” when first she made an injunction and then later ruled against the controversial and restlessly contested Republican-passed bill effectively eliminating collective bargaining for almost all public employees. However, many of her in-the-red critics found no foul play or unfair favor when just last week Circuit Court Judge J. MacDavis — a former Republican state senator — in Waukesha County — the bastion of conservatism in Wisconsin — revised by fiat the established practice of reviewing petition signatures for a recall election. Made this decision in the middle of a historic and unprecedented recall drive, thanks to a lawsuit filed by the executive director of the state Republican Party and the Walker campaign (more on this below). Whereas the onus had been on the politician in office facing a potential recall to review and scrutinize the petitions for obviously fake names, duplicates, or inaccuracies — which had been the status quo when nine total state senators faced recall elections in August of 2011 — Judge MacDavis ruled that now, when Governor Walker himself could face a recall, it was incumbent upon the Government Accountability Board (aka the state elections board) to prove the validity of the petitions. No legislating from the bench there, no sir.
Let’s put this in terms of numbers. During last year’s round of recalls, the total amount of signatures collected in all nine elections (six Republican and three Democratic state senators) was roughly 189,000. But still the challenge to prove those signatures invalid was the task of the politician facing a recall. That was 2011, and what was good for a senator is not good enough for a governor, clearly. The minimum needed to force a recall election of Governor Walker is 540,208. However, over one million signatures supporting the recall of Walker were submitted, on top of an additional 845,000 for Lieutenant Governor Rebecca Kleefisch, not to mention another hundred thousand total for the recall of four additional Republican state senators (including Majority Leader Scott Fitzgerald). All told, some 1.9 million signatures were submitted yesterday, weighing 3,000 lbs and trucked in by a U-Haul! That is more than ten times the amount for the nine recall elections of 2011, and yet the under-resourced GAB is now ordered by a former Republican lawmaker in the most Republican county of the state that it scrutinize and verify this staggering amount of petitions. What had been the accepted standard operating procedure for when the tally was under 200,000 is now deemed unreasonable when the figure is nearly two million. But there is nothing “activist” about it. That’s just crazy talk!
As ever, Waukesha County + election = controversy. As mentioned above, a lawsuit against the GAB was filed in Waukesha County, which was no coincidence. Walker’s lawyers specifically sought out the GOP-germane county thanks to a newly passed law by the Republican-controlled State Legislature that allows cases against the state to be tried outside of Dane County (where Madison and thus the Capitol is located), run amok by liberals. Before this, such lawsuits had to be tried in Dane County. That’s politics, sure. But the basis of the lawsuit came free of charge from the for-profit whores of privatization MacIver Institute, a public policy think tank in drag, that falsely alleged that the GAB would not discriminate between bona fide and fraudulent signatures.
This is the same kind of jaundiced slant that like a stink of a lie hounds the renown of MacIver. What their web video fails to point out is how the GAB flags fraudulent names for further review. But this was enough to cause a Waukesha judge to change the rulebook in mid-play. Lisa Kaiser of the Shepherd Express provides a helpful magnifying glass on MacIver, pointing out that it is funded by the Bradley Foundation, an ultraconservative, super-rich organization out of Milwaukee that is headed by the former chair of Walker’s gubernatorial campaign and present chair of Friends of Scott Walker, Michael Grebe. And, as Kaiser points out, Friends of Scott Walker was “one of the organizations that filed the suit in Waukesha County.”
Obviously it is problematic if people are signing official petitions as “Adolf Hitler” and “Micky Mouse.” How prevalent such aberrations are begs a separate question altogether. Not unlike the bogeyman of so-called voter fraud, the anomalies are statically irrelevant. Yet the GOP again and again distorts the anomalous with spectacular hyperbole. Perhaps such is a byproduct of faith-based cogitation. Of course there ought to be a standard of excellence in something as important as a recall election, particularly when the candidate is the governor of a state. But that hardly merits changing the standard in the middle of the process. The GOP had all the time in the world between the August recall elections and the recall of Walker in November to do something about what they feared would be an exploited flaw in state election law. Like the regurgitated cant of voter fraud, the echo chamber and fear-mongering of Hitler and Mickey signatures is a desperate ploy to mitigate reality: that a lot of people are pissed off at the GOP.
Upon her retirement, Supreme Court Justice Sandra Day O’Connor described the accusation of judicial activism as a “mantra” that was “erupting all over the country.”
I’d be as naive as the next pitchfork-wielding mob member were I to dismiss judicial activism outright. Of course it exists — but it cuts both ways. But it exists, and should, insofar as its opposite — judicial pacifism — ought not to. The nature of a court is to interpret law, after which act of deliberation it forms an opinion. It is not an officiating functionary like a referee or stern parent mediating between the sibling rivalries of the executive and legislative branches of government. It is coequal, which means it too has a voice. If a law is found to be unconstitutional, it is nullified; but such determination is hardly tantamount to active legislation. Would that the reverse process be true: legislators acted more like judges by weighing the mettle and legality of a bill before passing it into law based on partisan gain or ideological bias!
A century before Justice O’Connor, Supreme Court Justice Oliver Wendell Holmes, Jr. wrote “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.” To be sure, objections to this judicial philosophy are stridently made by strict originalists, most notably current Justices Scalia and Thomas. But that is a separate argument. Let’s at least first agree that you can’t shout “fire!” when you’re holding a torch.
* Boring disclaimer: hours after this scribble was penned and posted Rick Perry dropped out of the horse race.