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Wednesday, April 6, 2005

Loewy Comments on Bush and Judicial Activism

CrimProf Arnold Loewy of North Carolina published the following editorial titled Judicial Activism When Convenient in the Raleigh News & Observer:

During the recent presidential campaign, President Bush expressed his abhorrence of activist judges. When asked for an example, he referred to the Ninth Circuit judges who invalidated the daily recitation in elementary school of the Pledge of Allegiance because it contained the words "under God" in it.  Less than six months later, this same President Bush, now safely ensconced for another four years, successfully urged Congress to involve Federal judges in the fate of Terry Schiavo. While one might sympathize with the President’s strong pro-life stand, it is hard to reconcile his attack on judicial activism in the Pledge case with his singular endorsement of unprecedented judicial activism in the Schiavo case.

Let us compare the cases. In the Pledge case, the Ninth Circuit was confronted with a claim that atheist children were compelled to pledge (falsely in their mind) that this Nation is under God. Their only alternative was to opt out and appear unpatriotic. After carefully examining prior Supreme Court precedent (as a non-activist lower court is supposed to do), the court concluded that the Establishment of Religion clause of the Constitution precluded confronting an atheist student with such a cruel dilemma.  Ironically, when the case reached the Supreme Court, Justice Thomas (Bush’s paradigm of a non-activist judge) concluded that the Ninth Circuit had correctly read prior precedent. He, however, would have reached the opposite conclusion by overruling the prior precedent (a rather activist thing for a judge to do).

Now let us consider Schiavo. The issues are either factual (is she or isn’t she persistently vegetative) or questions of State law (who has the right to speak for Terry). The only conceivable Federal questions have already been resolved: (1) she has a right to live and (2) she has a right to be free of invasive artificial nutrition and hydration devices.  Because the rights are mutually exclusive, she cannot exercise both. Consequently, the questions are which right will be chosen for her and who will do the choosing. And, both of those questions are questions of State, not Federal, law.

With no Federal questions, would it not be the height of judicial activism for a Federal court to pretend that there were? And, even if we could excuse Federal judicial activism where the State courts had thwarted the will of the people, that is hardly the case here. In fact, the latest polls show that a substantial majority of the populace would not want to live under the unfortunate circumstances that have befallen Terry Schiavo.  Perhaps more than anything, this explains why all of the Federal courts that have heard the case have refused to intervene. The courts understand the importance of judicial restraint and the consequent limits on their power. Unfortunately for the President, this time he does not.

So, what can we conclude from the president’s simultaneous denunciation of juduical activism and his endorsement of the special bill to involve the Federal judiciary in the Schiavo case. As a great constitutional theorist of an earlier generation once said in another context: "I cannot admire both the candor and the capacity of" a man who would maintain these two positions simultaneously.

My own view is that Mr. Bush is lacking in candor. He is fine with judicial activists so long as their activism supports a philosophically conservative agenda. I suppose that saying: "I support judicial activism if, but only if, the judges are on my side" is an unspeakably pompous position for a President to maintain. Unfortunately, at least for this President, it is not too pompous a proposition upon which to act.

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