With the nomination of Sonia Sotomayor rolling along, the phrase "judicial activism" is being thrown around a lot. It's actually pretty hard to define, since it seems to apply only to liberal, moderate, or even insufficiently conservative judges. Judicial activists "legislate from the bench," handing down decisions that overturn law or have the effect of creating new laws. The problem here -- at least, if you listen to the people who use these phrases -- is that none of this is constitutional. But the problem with this reasoning is that the Constitution allows it. In fact, it's the job of judge on a Court of Appeals or a Supreme Court to weigh the constitutionality of law and to rule in cases were the law is unclear or fails to cover the situatation. If their favorite example, Roe v. Wade, which struck down laws banning abortion was judicial activism, so was Loving v. Virginia, which did the same for laws banning mixed race marriages. The courts are where you turn for justice when legislation fails to provide it. If you believe a law is unconstitutional, you go ahead and sue to have it overturned. You may win, you may lose. That's the way this whole justice system thing works, because that's the way this whole justice system thing was designed to work.
What people who use the term "judicial activism" argue is that the judicial branch is encroaching on the legislative branch. There's a clear separation of powers and having judges "legislate from the bench" violates it. That's the argument anyway. The truth is that these people don't like losing games and want to blame the referee. As I said, you may win, you may lose -- they're not extremely happy with that "you may lose" part.
But is the judicial branch the only branch of government capable of usurping the responsibilities of other branches? Obviously not. And you've got to wonder where these people were when the Bush administration was pushing it's theory of the "unitary executive." With the use of signing statements, Bush gave himself the power to enforce only those laws he believed were constitutional. The test of constitutionality is the job of the courts, not the president. This is why Bush was responsible for so few vetoes -- why risk an override by congress when you can just add a note to the law that says, "Yeah, I'm not going to do that?" Just sign it into law, then create a signing statement saying it's bad law and you're not going to use it or that you're going to interpret it in a way that's clearly contrary to the law's intention. Call it "legislating from the Oval Office."
But that isn't the only way Bush abused the unitary executive theory. When it came to torture, when it came to illegal wiretaps, when it came to the detention of terrorist suspects, Bush became not just a legislature unto himself, but a judge and jury. In the case of Dick Cheney's hit squad, the executive became legislature, judge, jury, and executioner.
This struck me when I read this story about torture, the White House, and the Department of Justice.
A former U.S. intelligence agent said in a report published Monday that terror suspect Abu Zubaydah was subjected to simulated drowning months before the Bush administration’s Department of Justice had written memos approving the use of waterboarding.
The claim strikes a serious blow to repeated Bush administration arguments that no laws were broken in the torture of prisoners because legal guidelines had been closely followed.
Former Central Intelligence Agency officer John Kiriakou, speaking with BBC’s Panorama, said that internal communications detailed Zubaydah’s torture beginning “at the very end of May or the very beginning of June 2002.”
So, when the Bush administration said they had legal cover to commit torture, they didn't actually have that cover. They jumped the gun and went ahead and tortured Zubaydah. But here's my question; why would that make any difference?
The Bush administration went to great lengths to pretend that memos and briefs from the Justice Department -- an executive branch agency -- were as solid in legal force as a ruling by a court. And the media has done an excellent job of reinforcing this false impression. By relying on legal findings from Justice to support torture, the Bush White House was acting as both the judicial and legislative branches. In other words, the neocon version of the unitary executive could be called "executive activism."
But it doesn't seem that even the Bush administration bought this. They decided that torture was the way to go, went with it, then decided they needed some sort of legal CYA. So they turned to compliant lawyers within their own branch of government and ordered them to come up with something. To everyone's tremendous surprise, they did. What luck. They had legal memos and these were supposed to be exactly the same as a law passed by congress and tested by the courts. If all this is constitutional, you've really got to wonder what the hell we've got courts and a congress for -- clearly, they're redundant. In the United States, we elect our kings. The entire US government sits behind one desk in one building on Pennsylvania Avenue. Courts and legislatures are pretty much ceremonial.
Or maybe not. Attorney General Eric Holder hasn't ruled out appointing a special prosecutor to investigate torture. If this happens, the Bushies are going to find their legal fiction that a memo from a Justice Department toady means anything is a bunch of BS. Which is what everyone -- media included -- should've been saying all along. When neocons pointed to the torture memos, the proper response should've been "who cares?" Or, at least, "so what?"
And now it turns out that they didn't even have this pretend-authorization. They just went ahead and did it, because the law doesn't apply to the king.
Whether or not Holder actually goes ahead with an investigation is an open question and, frankly, I'll believe it when I see it. The law says he has to, but if Bush was a king, then so is Obama. The law doesn't apply to the executive. Holder can prosecute or not prosecute or recommend that tortures get freakin' medals, because the guy in the White House is a unitary executive and everything he does -- no matter what -- is golden. As Richard Nixon once put it, "If the president does it, then that means it is not illegal."
So it's not "judicial activism" that's our problem -- that's all BS from a bunch of sore losers anyway. It's executive activism that's a problem. And so far, they've all been silent about it.
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