Debunking McCain & The Activist Judge Myth

• (crossposted on the Fairfax County Democratic Committee website)

In today's Washington Post, Ruth Marcus, drives a stake through the heart of the Republican "activist judges" boogie man that is so frequently thrown around to excite their socially conservative supporters.

Republican Presidents from Ronald Reagan, George Bush #1, to George Bush #2 have used this straw man  in speech after speech.

On one level, attacks on federal judges have always been code language originating from southern anatgonism to the Court's role in desegregating the South.  Some of Strom Thurmond and George Wallace's favorite punching bags were federal judges - a tradition that harks all the way back to Thomas Jefferson's involvement in The Kentucky & Virginia Resolutions in 1798.  Take for example in 1957 when Georgia Governor Marvin Griffin said "We're not going to let a Federal judge tell us who can vote."

It is time that Democrats fought back against these Republican myths and called a spade a spade.  This line of attack is a total echo chamber think tank generated myth designed to evoke the worst in people.

She starts off by discussing the case of Loving v. Virginia the horrible case where the Supreme Court of Virginia invalidate Virginia's miscegenation statute.  I wrote about this case and Fairfax County's role in the decision last week on the occasion of the death of Mildred Loving (FCDC Chair, Mildred Loving: A Life With Meaning).  

John McCain and most Republicans like to toss around the idea that judges are "legislating from the bench" and constantly running wild without accountability to the people.  Consider these statistics:

- 7 of 9 U.S. Supreme Court Justices are Republican Appointees
- Since 1969, Republicans Have Appointed 11 of 13 U.S. Supreme Court Justices
- 100 of 166 the Current Federal Appellate Court Judges Are Republican Appointees
- Since 1969, Republicans Have Appointed 211 Federal Appellate Judges, Democrats 122
- Since 1969, Republicans Have Appointed 813, Democrats 508

So then where are all of the liberal, activist, judges who are overturning the will of the people?  Well, it turns out it's actually the conservatives who are presently on the bench. Ms. Marcus points out some interesting statistics:

- In the first 200 years, the U.S. Supreme Court struck down 130 laws.  That's roughly .65 laws per year.
- In the last 13 years, the U.S. Supreme Court has struck down 30.  If you can't do the math, that's about 2.3 per year.

That's before you even start talking about "strict constructionist" federal appellate decisions like when the D.C. Circuit invalidated the District of Columbia's handgun ban based upon the Second Amendment.  Consider the following "conservative," "strict constructionist," "non-activist" decisions:

- 2000 - There was a little case back in 2000 called Bush v. Gore that had something to do with some election that year.
- 2008 - Estate of Riegel v. Medtronic - a case shielding medical-technical firms from liability if they get FDA approval for their products - notwithstanding the fact that they turn out to be lethal.
- 2007 - Phillip Morris v. Williams - A 5-4 opinion striking down a $79.5 million jury award where the jury intended to punish Phillip Morris for telling consumers their products were safe.
- 2007 - FEC v. Right to Life - A 5-4 ruling striking down part of the McCain-Feingold act.  (Is McCain mad about the "liberals" - Roberts, Alito, Kennedy, Scalia & Clarence Thomas) invalidating his act?)
- 2003 - State Farm v. Campbell - A case striking down a punitive damages jury award on pursuant to the Due Process Clause of the 14th Amendment - the same provision used to restore civil rights to African Americans.  Wondering where the Constitution mentions punitive damages?  It doesn't.

The list goes on and on and on.  Ms. Marcus goes on to point out McCain's empty rhetoric of attacking Justice John Paul Stevens for criticizing the death penalty and then voting for it out of respect for stare decisis (precedent).   If you don't understand McCain's point - neither do I.  

The bottom line is that we should expect to hear more of this in the coming year, especially if Barack Obama is our nominee.  That the next time a Republican friend of yours attacks the judiciary for being activists - call their bluff, break the secret code, and call a spade a spade.

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