The Activist Judge ...oh my

This coming Monday the circus which is the Senate Judiciary Committee starts their sacred duty of advise and consent concerning Judge Sonya Sottomayer to the supreme court. This constitutional duty has been marred lately by the specious arguments of "strict constructionist versus activism". The reason I am concerned is that I do not know what this means and I do not believe anyone else (including those who say it) does either.

From my limited understanding ( I am not an attorney) the issues are: how Judges interpret the Constitution of the United States to perfect our union. Conservatives make an argument that judges should only consider what is written in this document. That there should be no expansion of what it means. This is interesting: if we carry this logic to its conclusion then, a lot of people would NOT be in pursuit of happiness or have life and liberty. This is why there are amendments specifically because the authors did not and COULD not for see the changes that our society would take. Cases in point voting for people of color, women Native Americans; changes in commerce, union activity, and the biggest issue privacy and person hood (Roe v. Wade). Imagine our country had we not had activist judges. This would be a much poorer and probably not as influential Nation,

So the committee meets to decide the qualification of this extraordinary Latina woman. Compared with Alberto Gonzales this appointment should be a no brainer, yet there is the fight which simmers. Not over qualification (her class mate is Stephen Carter not bad company) nor over her decisions she has been in the majority (mainstream for judges on decisions 94 per cent of the time, right 98 per cent of the time) but because there is this fear of activism and empathy, words that send shivers down the backs of her opponents.

My inquiry is this : what Court has not been an activist? The Warren Court, the Tawney Court (Dred Scott and the rise of Black Codes talk about activism!!!) all acted in ways that changed this nation, some good some better. Activism is how we have judicial review in the first place Mawberry v. Madison, established the court as the last voice of legal disputes, yet no raises their voice to champion this precious right.

So really what is the concern since fear is not an issue and never has been. Is it the concern of a more Liberal court? Observers posit that the court has not been that liberal or conservative, it has move slowly (activism maybe) over the last few sessions. Or is it that that empathy, compassion as a rule of judicial temperment might be utilized in making decisions. That societal impact, race, gender, transgender might be pertinent for cases at the bar. Or could it be that we as a society might be moving toward a more perfect union in our understanding of human conditions and how we are effected as a people? I have no answer but with this addition to the court it will be interesting to see how it plays out!! Thank God for Obama he sure keeps things interesting. Later