Judicial Activism

On Friday, University of California, Berkeley law professor Goodwin Liu testified before the Senate Judiciary Committee considering his nomination by President Obama for the San Francisco-based U.S. Court of Appeals. There were questions about Liu's qualifications, policy positions in his academic writings, and a remark he once made in opposing confirmation of Judge Samuel A. Alito Jr. to the Supreme Court.

Whether justified, they are legitimate issues to raise. Republicans were concerned Liu would give short-shrift to judicial precedent, though the nominee maintained "I would approach every case with an open mind. The role of a judge is to faithfully follow the law as it is written." Nonetheless, ranking Republican Jeff Sessions of Alabama called Liu "the very vanguard of what I would call an intellectual judicial activist."

This was intended as an insult. That might be obvious- but shouldn't be. On September 27, 2005 Senator Sessions voted to confirm Judge John Roberts as Chief Justice of the United States Supreme Court. That would be the same John Roberts who fifteen days earlier, in his opening statement to the Judiciary Committee, sounded just the right note:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Instead, Chief Justice Roberts has presided over an activist court because of Chief Justice Roberts. As The New Republic's Jeffrey Rosen noted in the wake of the 5-4 Citizens United decision

The voting-rights case may help explain why Roberts didn’t take a similarly conciliatory posture in Citizens United. After all, one was certainly available. Just as Roberts had implausibly but strategically held in the voting-rights case that Congress intended to let election districts bail out of federal supervision, he could have held--far more plausibly--in Citizens United that Congress never intended to regulate video-on-demand or groups with minimal corporate funding. As with the voting-rights case, judicial creativity could have been justified in the name of judicial restraint....

....the opinion is aggressively activist in its willingness to twist and overturn precedents, strike down decades of federal law, and mischaracterize the original understanding of the First Amendment on the rights of corporations. “The only relevant thing that has changed” since the Court’s first encounter with McCain-Feingold in 2003, Stevens wrote, “is the composition of this Court”--namely, the arrival of Roberts and Samuel Alito.

As the sweeping nature of Citizens United indicated, the Chief Justice, who remarked during his confirmation hearing "Judges have to have the humility to recognize that they operate within a system of precedent," is himself a judicial activist- one of the right. During the confirmation process, Roberts misled Congress and the public, as have numerous other judicial nominees of both the conservative and the liberal variety.

But it is only liberals who get tagged with the dreaded "activist" label. In this period when Tea Party activists and others claim some free-floating allegiance to the Constitution, it is damaging for the nominees of one party to be identified with judicial activism while the others are presumed to be dedicated only to law and precedent.

Goodwin Liu may be derailed by, or survive, the charge or have his nomination falter for another reason. In any case, the controversy over his appointment should highlight the messaging problem facing the Democratic Party in staffing the third branch of government.