Miscellaneous

Empathy for the Devil

By Anne Skove, Esq.

Oh, my. It's happened again: another editor wrote another op-ed about the a-word.

"Auckland?" "Asperger's?" "Alito?"

"Activist!"

Court-o-rama will be collecting a nickel every time this phrase is used in the press or by pols. No, wait, that's just wishful thinking!

It's nearly as wishful as partisan columnists ruing that there aren't enough activist judges for *their* pet causes. Peter Bronson of the Cincinnati Enquirer goes on and on about activist judges in We Don't Need Judges Full of Empathy Jelly, Peter Bronson, Cincinnati Enquirer (May 27, 2008).

He defines activist judges as those who "believe the plain words in the law and the Constitution are squishy Play-Doh that they knead and mold to fit their own feelings." At issue, in particular, are the elected justices on California's high court who, according to Bronson, should have followed voters' wishes over legal reasoning when deciding the gay marriage case.

His other example is U.S. District Judge Walter Rice, who ordered a new trial for a capital defendant after prosecutors appealed to jurors' emotions rather than relying on legal arguments. See Prosecutors' Conduct Risks Reversals, Spencer Hunt, Cincinnati Enquirer (September 10, 2000).

Bronson's beef seems to be related to the Judge's removal from capital cases because he is perceived as too pro-defendant. In fact, Judge Rice's caseload was lightened because he was slow. This happens in courtrooms around the country every day (though not nearly as often as it should). Unfortunately, caseflow management is not a sexy topic (except for those inside the court-o-rama sphere, where caseflow ranks somewhere between George Clooney and David Brooks!) unless it's tied to the death penalty. It was the prosecutor, not the assigning judge, who tried to paint the reassignment as a victory for victims; it was the headline-writer who filled in the blanks. The article is no longer available for free but see the large excerpts posted in Ohio Federal District Judge Stripped of Death Penalty Cases, StandDown Texas Project (January 25, 2008).

Though Bronson thinks the statement went unnoticed, we saw numerous references to McCain's recent pledge to appoint only strict originalists. (To be fair, Bronson noted that McCain voted for Justices Ginsburg and Breyer, and that he "vandalized the First Amendment" via McCain-Feingold.)

Bronson quotes Obama as saying that justices need "the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old [...] that's the criterion by which I'll be selecting my judges."

All of this might make sense if it weren't for the fact that we have met many, many judges, not one of whom could be called "activist," much less touchy-feely.

California Chief Justice George? He's a Californian, which may be reason enough for some to use the a-label. Here are a few things you might not know about him: he's the son of immigrants, a Republican, served as deputy attorney general in the California Department of Justice, and he nullified gay marriage licenses, holding that they were granted illegally in San Francisco. Not exactly a Berkeley-bred, Birkenstock-wearing, sign-carrying, tree-hugging activist. See California Chief Judge Says Same-Sex Marriage Ruling Was His Toughest, Maura Dolan, Los Angeles Times (May 18, 2008).

Judge Rice was likewise a prosecutor, spending much of his career in that hotbed of liberalism known as Montgomery County, Ohio (Dayton). Sure, he was appointed by President Carter, but remember that Justice Stevens was a Ford appointee.

So where are all these activist judges? In the hearts, minds, and imaginations of those who protest them too much. Activist is shorthand for those judges who make politically risky decisions, such as desegregation. But political riskiness is what judicial independence is all about.

Think of the forward momentum if the critics of activist judging (who are just jealous that the activism isn't on their side of the fence) would put their heads together to consider judicial independence, rather than focus on "judicial hellholes!"

Full post as published by court-o-rama.org on May 28, 2008 (boomark / email).