Dahlia Lithwick has a warning for Senate Democrats heading into Sam Alito’s confirmation hearings that they’d do well to heed:
It will, unless Democrats get it together, become yet another Jerry Lewis telethon, raising national awareness about the dangers of “judicial activism” and the plague of “the reckless overreaching of out-of-touch liberal elitist judges.” Democrats in the Senate either will not or cannot put the lie to these trite formulations. They need to shout it from the rooftops: that blithely striking down acts of Congress is activism; that the right’s hero Clarence Thomas may be the most activist judge on the current court; that reversing or eroding long-settled precedent is also activism; and that “legislating from the bench” happens as frequently from the right as the left.
I actually think this is a charge for all liberals and progressives. When your colleagues, friends at a holiday party, or family members at Thanksgiving bring up word one about “judicial activism” and “out of control judges,” it’s up to you to broaden their outlook.
November 5, 2005 at 11:10 pm
From “Breyer’s Big Idea” in the Oct 31 New Yorker (p. 38):
Indeed, according to an analysis by Paul Gerwirtz, a professor at Yale Law School, and his student Chad Golder, of Supreme Court decisions between 1994 and 2005 addressing the constitutionality of sixty-four congressional provisions, Breyer voted to strike down laws twenty-eight per cent of the time — less often than any other Justice. Clarence Thomas voted to overrule Congress sixty-six per cent of the time, more than any other Justice.