Both conservatives and progressives have the words and phrases they like to invoke, the commonly offered arguments, the villains and heroes who populate their rhetoric. But you could sift through every word of contemporary American political debate -- read every stump speech, pore over every press release, endure every moment of every cable chatfest -- and you would be unlikely to encounter a more complete, unadulterated, shameless piece of outright bullshit than "judicial activism." It is the ne plus ultra of disingenuousness, the zenith of cant, political deceit in its purest form. And seeing John McCain embrace it should disabuse anyone of the notion that he is somehow more honest than the typical politician.
And embrace it he did, in a speech last week that got lost behind the noise of the Democratic nomination fight. Warning of the danger from "activist judges," McCain railed against the threat from "the common and systematic abuse of our federal courts by the people we entrust with judicial power." Thus did McCain check one more box on his to-do list of pandering to the right-wing base.
The truth is that an "activist judge" is a judge who makes a decision conservatives don't like. If they truly cared about the principle that judges shouldn't substitute their own opinions for the law, then they would be just as exorcised about "activist" decisions that served conservative goals as they are about those that serve progressive goals. But if anyone can name me a single judicial decision that served the right's ends and that conservatives protested on the grounds that it was too "activist," I'll eat my hat. And even a court's refusal to exercise power and overrule laws or precedents -- as courts at every level did in the Terri Schaivo case -- will be called "activist" if conservatives don't like the outcome.
When researchers have attempted to figure out who the "activists" really are, it turns out that more often than not they are the conservative jurists. Thomas Miles and Cass Sunstein of the University of Chicago measured judicial activism by counting how often members of the Supreme Court overruled decisions of regulatory agencies, and found that the most activist justice was Antonin Scalia. The most partisan -- overruling the agencies when their decisions were protested by industry, but finding in their favor when their decisions were protested by environmental groups -- was Clarence Thomas. (Anthony Kennedy was the most ideologically neutral by their measure, while Stephen Breyer was the least activist overall, overruling the regulatory agencies the least often.)
Another study by Lori Ringhand of the University of Kentucky found, using different measures, that "while all of the justices used their power of judicial review proactively and in ideological[ly] predictable ways, the judicial 'conservatives' sitting on the Rehnquist Natural Court were much more likely than their 'liberal' counterparts to invalidate federal legislation and overturn precedent, while the 'liberals' were more likely to invalidate state laws." Yet another study three years ago found that the conservative justices were more likely to strike down federal laws, with Scalia once again leading the pack.
These studies don't tell you who was wrong and who was right -- if a state passed a law outlawing the practice of Presbyterianism, the Court would strike it down unanimously, and no one would claim that doing so made them activists. But they do offer fairly strong evidence that the idea that conservative judges carefully apply the Constitution, while liberal judges maraud across the legal landscape imposing their arbitrary will, is just ridiculous.
Which brings us back to John McCain. When the presumptive GOP nominee panders in the way he did in his speech last week, his defenders in the news media protest that his heart isn't really in it. He doesn't mean all those things he says; he's just doing what he needs to do in order to secure the base. But if this claim is true, it makes McCain look worse, not better. It would mean that he's as cynical and dishonest as any other politician, perhaps more so.
Though he has flip-flopped on a number of issues, this is one area where I think we can take McCain at his word. As has been noted many times before, he doesn't seem to be all that interested in the kind of domestic issues the courts usually deal with so it is no wonder he sticks to conservative orthodoxy on the issue. And delivering a steady stream of reactionary judges is just about the best way to buy the loyalty of the religious right, whose continuing support he would need in order to make his administration a success.
And just how much more conservative would a President McCain be able to make the federal courts? There is no way to know how many vacancies there will be on the Supreme Court, though Justice John Paul Stevens, one of the most reliably liberal votes, is 88 years old. But it is in the lower courts where any president can have the greatest effect. There are a total of 678 judgeships on federal district courts, and another 179 on the appeals courts, the last stop before the Supreme Court. George W. Bush appointed 241 judges to the district courts and 58 to the appeals courts. Bill Clinton got the chance to appoint even more -- 305 district judges and 66 appeals judges -- 87 percent of whom are still serving.
The judges most likely to be retiring in the coming four or eight years are those appointed by Ronald Reagan and George H.W. Bush. Only a few of Jimmy Carter's judges remain, and only two appointed by Gerald Ford are still on the bench, one of whom is Justice Stevens. (In case you're curious, the longest-sitting federal judge is Manuel Lawrence Real of the Central District of California, still going strong 42 years after being appointed by Lyndon Johnson.) Furthermore, there is currently a bill in the Senate to increase the size of the judiciary by 12 appellate seats and 38 district seats. Were the bill to eventually pass, it would increase the influence of the next president even further.
All of which is to say that the stakes are incredibly high. John McCain, like other Republicans, understands the political importance of the makeup of the judiciary. Conservatives care about judges, because they know what a profound impact they can have on all of our lives. Democrats, on the other hand, have never figured out how to talk about the importance of the judiciary, either to their own supporters or to the rest of the public.
I haven't heard Barack Obama talk much about judges, but if and when this comes up in one of the presidential debates, and McCain blows the same old smoke about activist judges, I'd like to see Obama turn to him and say, "You know what, senator? Let's try telling the truth. You and I both know that this 'activist judges' line is a load of bull. You want to appoint judges who are conservative -- you want them to overturn Roe v. Wade, and to rule against protections for workers, and to support expansions of executive power. I disagree on all those things. But at least have the courage to be honest with us about it. Don't hide behind this phony 'activist judges' line and try to convince us it's all about some abstract principle. You want to talk about judges? Let's talk about it."
Then maybe we could have a real discussion about what the judiciary does and how it affects our society. We could talk about what it would be like if abortion were illegal. We could talk about the way John Roberts and Samuel Alito have upheld George W. Bush's unconscionable attempts to expand presidential authority (the real reason they were chosen, by the way). We could talk about what it means to have a Court that renders decisions as abominable as that in the Ledbetter case. It would certainly be long overdue.