Wait, I Thought We Hated Judicial Activists!

Todd Zywicki reveals the gulf between the right's excoriation of "judicial activism" and its real position: a desire to find and appoint "judicial activists" who lean right. This post in my view is a major faux pas.

Zywicki starts off simply enough: "There are two possible ways to think about appointments, one is to appoint those who will simply 'vote right' on the Court, the other is to be more far-reaching and to try to change the legal culture." Perhaps I need not note that Zywicki's on his way to noting that neither Miers nor Roberts are really change-the-legal-culture types -- Roberts because his jurisprudence is "incrementalist" and Miers because, well, to paraphrase bluntly if accurately, she's just too stupid, and, at 60, too old to learn new tricks. No, I'm serious: here's what he says, after noting in a tone of peculiar condescension the various positions she's held over the years, and how none of them really required the peculiar skills necessarily to be a billious idealogue of Scalia's order:

At the very least, she will have a heck of a lot of learning to do and will be forced, at the age of 60, to think about many, many difficult issues that she has never confronted in her entire life. I suppose it is possible for a 60 year old to start what amounts to a completely new career and learn a completely new set of skills for the first time, but.... She hasn't even been practicing law for many, many years, but rather serving in either policy or administrative roles. At the very least, if she is to ever exercise any intellectual leadership of the there is going to be a substantial learning curve that suggests that it will be several years before she has anything meaningful to say.

If my interpretation is off here, do let me know. But this is almost worse than the "just a secretary" stuff Binky fairly complained of in a prior thread.

Hearkening to the Reagan era, Zywicki concludes:

In the end, of course, the lack of a strategic vision means that even the tactical victories tend to be reversed (for instance, temporary tax cuts will likely fall victim to the inability to control spending). As Reagan understood, you have to first have the long-term strategic vision in mind so that you know when to make tactical compromises. Ideas are the long-run motivating force of history. Tactics without strategy, by contrast, leaves you rudderless.

But if judicial restraint is considering the constitution a fixed quantity, and deciding individual disputes, as such, on the basis of one's reading of that document, than what of tactics and strategies? Who needs a rudder, and to negotiate what sea? It seems to me that all of this is an encrypted variation on the far right's lament that their "activists" simply haven't left as indelible a stamp on constitutional law as have the left's "activists." Or perhaps more to the point, the right's "activists" haven't obliterated every trace of the left's "activists" just yet (and not for lack of trying).

As I've posted before, however, in the long run I believe that the Rehnquist Court, in its federalism decisions, probably changed the legal landscape with regard to the state/federal relationship (while overruling, I might add, as much legislation as any Court ever has, but of course that's not activism, just like Bush v. Gore wasn't activism) as much as the late Chief Justice Warren changed our understanding of Civil Rights.

If the law is to have some reliability, if it is to serve as a bulwark to which individual citizens can look for guidance, than it cannot be radically changed to the right or left, regardless of whether where it stands now comports with a particular view of constitutional interpretation. That's not to say each new justice shouldn't come in with his or her own peculiar view of the interpretive enterprise -- how could it be otherwise? All it means is that, in lamenting Roberts respect for the institution of the Court, stare decisis, and the living enterprise of the law -- in Zywiicki's parlance, his "incrementalism" -- one is, indeed, lamenting precisely the judicial restraint the right constantly touts but cares little for in fact.

The only activist decisions to the right wing are those outlying decisions that favor the left, notwithstanding that any moderate critic would acknowledge that there are just as many outlying right-wing judges as there are left-wingers, who just as clearly trammel the constitution every time it commands an outcome they don't like. When state and federal judges in Texas turn the other cheek on basic constitutional rights in death penalty case after death penalty case and force the United States Supreme Court to intervene simply to ensure competency of defense counsel, when this happens over and over again, is one of those judges, almost all conservative, excoriated for activism, notwithstanding the Supreme Court's own clear comments that the courts below have flouted the basic death penalty jurisprudence of the highest court of the land? Where's Coburn when that happens? Where's DeLay? Where's Todd Zywicki?

Judicial restraint my eye. This is all about wanting judges one agrees with, and making as much change as possible as rapidly as the system will allow to bring courts more into agreement with this or that view. It'd be nice if some of the commentariat, those with tenure and nothing to lose in particular, those on the right and left, would just fess up already. Perhaps then we could move on to a debate where the words actually mean something.

UPDATE: Armand has been kind enough to correct my obvious and systematic misspelling of the good Professor Zywicki's name in this post as originally offered (I had spelled it Zwycki). Given the boost in traffic Majikthise's kind link has prompted, my error risks propagation over a broader range than usually would be possible. My apologies, professor Zwyicki. Though Moon is easy to spell, my real last name lacks that virtue and often is misspelled; I empathize, and usually don't tolerate such obvious mistakes.