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Monday, May 19, 2003
Well, that's different...
The Moonie Times has James L. Huffman weighing in on the Senate's "good-guy filibuster" of Owen's and Estrada. He seems to think that the Democratic Senators are being a little too activist:
As for respecting the Senate's role, where is the disrespect? The Senate's role is to provide "advice and consent." There can be no doubt that the president is getting plenty of advice from members of the Senate, each of whom has communicated his or her list of favorites to the White House. And there is nothing the president has done, or could do, to prevent the Senate from consenting, or not consenting. Indeed, all the president is asking the Senate to do is vote.
Of course, depending on the matter at hand, we know that activism should only be the province of...the judiciary:
Most political conservatives believe in the principle of judicial restraint. I share that conviction, but I also believe in judicial activism. My purpose today is to make a case for principled judicial activism. In the process I will argue that the traditional conservative doctrine of judicial restraint poses a serious threat to liberty, and is therefore not consistent with the fundamental objective of the framers of the United States Constitution.
He says some other interesting things too:
Our Conservative Judges. Our Constitution is not just a machine that would go of itself, in the words of Michael Kammen. If a machine, it is one with a purpose. When, while being maintained by the Supreme Court, it goes of itself to produce results for which it was not intended, we need a new maintenance crew which will make the necessary repairs. The conservatives on the Supreme Court are not that crew. They have as much as said (see O'Connor in the abortion cases) that if the court gets it wrong it will have to stay wrong. That is what judicial restraint requires. But that is not what liberty requires. They clearly need some help from below.
Part of the problem is that our conservative judges, like all of our lawyers, are trained in the tradition of Langdellian legal science. All will readily proclaim themselves legal realists, but they will behave as legal scientists, asking only what is the law? It is not for the judge to ask what the law ought to be. That is for legislators. But that is for legislators only within their constitutional domain. The law ought to be what it was intended to be and when we have gotten it wrong we should set it right.
[snip]
The most significant accomplishment of the Reagan-Bush Administrations has been the staffing of the federal courts with intelligent judges. My fear is that the Reagan revolution will come to nothing as these judges sit on their hands in the name of a simplistic theory of judicial restraint. It is a theory which accepts majoritarian tyranny as a constitutional requirement. James Madison would be dismayed. The price, as Madison and his contemporaries warned, will be the continued erosion of liberty
Did I mention this was given before the Heritage Society?
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