Activist Judge
Created | Updated Dec 28, 2007
Proposed: "Activist judge" is a term that identifies its user as ignorant of the realities of judges, just as surely as "politically correct" is a term identifying its user as ignorant of the realities of politics.
Let's start with "politically correct," since I'm more likely to get some preliminary agreement that it's not a useful term. People argue constantly over politics, to the point that some people avoid talking about religion and politics. It seems almost impolite for some people. If people always argue and rarely convince each other, then which side is "correct"? To claim that your own side is "correct" is as presumptuous and ignorant as Rush Limbaugh. That's why he does it all the time. Okay, for all it's worth, Al Franken does it all the time, but I still find him funnier.
If all your friends are liberal, then it might be useful to say that a certain movie or article is "politically correct" because you have a concensus. But in wider usage, it becomes meaningless. Bush supporters would say that it was politically correct to drive all citizens except adult males out of Fallujah and then shoot the "terrorists" who remained. They'd say the Geneva Conventions and UN Charter are politically incorrect, in need of editing by a trusted source like John Bolton.
I'll admit that it sprang up among liberals, and that they should have recognized how presumptuous and egotistical the term was, and that they deserved all the backlash from conservatives and even from swinging libertarians like Bill Maher.
Can we agree that it was stupid for people to ever begin using that term, and that it seemed to indicate a fundamental misunderstanding of politics by the people who used it? Politics are not now and rarely have been something that enough people can agree on for any position to be "correct".
It's the same kind of fundamental misunderstanding by people who dislike "activist judges." What they're saying is that they want objective judges, because we have a set of laws so crystal clear that no one could misinterpret it. Everyone can agree what the Constitution means, what the laws mean, so judges who waver from that interpretation must be activists. Right?
Where's this set of laws that is crystal clear and about which everyone agrees? That's malarkey. When they put together the Constitution and codified the three branches of govt, the founding fathers in all their slave-owning wisdom, wanted one branch to write the laws, one branch to carry them out, and a third branch to interpret those laws. They wouldn't own up to being deconstructionists (or whatever the hell they call that school of literary interpretation), but they recognized that even the most clearly written laws will be misinterpreted or reinterpreted by the people. Sometimes it's willfully misinterpreted, but sometimes it's an honest mistake. Sometimes the laws are just unclear. (Are they ever clear? How many clear laws have you read? Can we get a lawyer up in here? Can I get an AMEN, as long as nobody drops an amen monument out in the lobby?)
Instead of laying down the law and acting as if misinterpretation was impossible, the founders had a very reasonable expectation that people would constantly challenge details of the laws. So they set up a system whereby trusted arbiters could offer the official government interpretation of laws and of the Constitution. Good on ya for that one, founding slavers!
They knew that the written word was fallible, so they bolstered it with this system of judges. I don't know if they ever suggested that judges would be infallible too, but I assume they weren't that stupid. Of course judges are going to make weird and inconsistent judgments now and then. They're human. They're arbitrary by definition. To complain that the system is sometimes arbitrary seems to be widely missing the point of the system.
An "activist judge" is one who disagrees with your utterly clear interpretation of the utterly clear law. You could even accuse those judges of being "politically incorrect", and then you'd be demonstrating your massive ego, or your ignorance of how politics and judges really work.
Let's start with "politically correct," since I'm more likely to get some preliminary agreement that it's not a useful term. People argue constantly over politics, to the point that some people avoid talking about religion and politics. It seems almost impolite for some people. If people always argue and rarely convince each other, then which side is "correct"? To claim that your own side is "correct" is as presumptuous and ignorant as Rush Limbaugh. That's why he does it all the time. Okay, for all it's worth, Al Franken does it all the time, but I still find him funnier.
If all your friends are liberal, then it might be useful to say that a certain movie or article is "politically correct" because you have a concensus. But in wider usage, it becomes meaningless. Bush supporters would say that it was politically correct to drive all citizens except adult males out of Fallujah and then shoot the "terrorists" who remained. They'd say the Geneva Conventions and UN Charter are politically incorrect, in need of editing by a trusted source like John Bolton.
I'll admit that it sprang up among liberals, and that they should have recognized how presumptuous and egotistical the term was, and that they deserved all the backlash from conservatives and even from swinging libertarians like Bill Maher.
Can we agree that it was stupid for people to ever begin using that term, and that it seemed to indicate a fundamental misunderstanding of politics by the people who used it? Politics are not now and rarely have been something that enough people can agree on for any position to be "correct".
It's the same kind of fundamental misunderstanding by people who dislike "activist judges." What they're saying is that they want objective judges, because we have a set of laws so crystal clear that no one could misinterpret it. Everyone can agree what the Constitution means, what the laws mean, so judges who waver from that interpretation must be activists. Right?
Where's this set of laws that is crystal clear and about which everyone agrees? That's malarkey. When they put together the Constitution and codified the three branches of govt, the founding fathers in all their slave-owning wisdom, wanted one branch to write the laws, one branch to carry them out, and a third branch to interpret those laws. They wouldn't own up to being deconstructionists (or whatever the hell they call that school of literary interpretation), but they recognized that even the most clearly written laws will be misinterpreted or reinterpreted by the people. Sometimes it's willfully misinterpreted, but sometimes it's an honest mistake. Sometimes the laws are just unclear. (Are they ever clear? How many clear laws have you read? Can we get a lawyer up in here? Can I get an AMEN, as long as nobody drops an amen monument out in the lobby?)
Instead of laying down the law and acting as if misinterpretation was impossible, the founders had a very reasonable expectation that people would constantly challenge details of the laws. So they set up a system whereby trusted arbiters could offer the official government interpretation of laws and of the Constitution. Good on ya for that one, founding slavers!
They knew that the written word was fallible, so they bolstered it with this system of judges. I don't know if they ever suggested that judges would be infallible too, but I assume they weren't that stupid. Of course judges are going to make weird and inconsistent judgments now and then. They're human. They're arbitrary by definition. To complain that the system is sometimes arbitrary seems to be widely missing the point of the system.
An "activist judge" is one who disagrees with your utterly clear interpretation of the utterly clear law. You could even accuse those judges of being "politically incorrect", and then you'd be demonstrating your massive ego, or your ignorance of how politics and judges really work.
