BBLL: Special judicial activism edition
SPECIAL JUDICIAL ACTIVISM EDITION
Jarring quote of the week: Radio talk show host host G. Gordon Liddy, expressing a concern about Sonia Sotomayor that hadn't, uh, occurred to some of us: "Let's hope that the key (judicial) conferences aren't when she's menstruating or something, or just before she's going to menstruate. That would really be bad. Lord knows what we would get then." Thank you, G. We'll take it under advisement.
Best selective memory: Conservative critics of President Obama's Supreme Court nominee. Experience and background inform a judge's every decision, and properly so, which is what makes the criticism of a 2001 Sotomayor speech so troubling. Sotomayor talked about how the "richness" of her experience as a Latina might put her in position to better judge some cases than a white man. Indelicately phrased, perhaps, but at least two conservative Supreme Court justices apparently agree with her.
Clarence Thomas, nominated by Bush 41, told senators at his confirmation hearing his life experience qualified him to "walk in the shoes" of many who come before the Court.
And, more directly, Samuel Alito, nominated by Bush 43: "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account." As well he should.
Worst perpetrators of High Court activism: Clarence Thomas and Antonin Scalia, a Reagan nominee. If we define "activism" as the frequency with which a justice votes to strike down a law passed by Congress on constitutional grounds -- and that's precisely how Paul Gewirtz and Chad Golder of Yale Law School defined it in a 2005 study -- Thomas was the most inclined, voting to invalidate 65.63 percent of the laws that came up for review during the period studied. In fact, the top five "activists" were nominated by Republican presidents.
Justice Stephen Breyer, appointed by Bill Clinton, was the least likely to invalidate, voting to overturn 28.13 percent.
A separate, more recent study on Supreme Court activism reaches similar conclusions.
Cass R. Sunstein, the Felix Frankfurter Professor of Law at Harvard Law School, investigated which members of the Supreme Court are the most partisan -- in that they were more likely to vote in a way that might reflect their presumed ideological bent.
Thomas won the Partisanship Award. Anthony Kennedy, another Reagan nominee, won the Neutrality Award. Scalia won the Judicial Activism Award. Breyer won the Judicial Restraint Award.
None of this has anything to do with Sotomayor's suitability for the court, of course, but it suggests that charges of activism are best taken with a grain of salt.
Latest indication that Twitter is actually worth monitoring: Newt Gingrich's tweets. Take this one Wednesday afternoon: "White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw." Once a silly diversion, Twitter is practically a must for political partisans and news agencies alike.
