Right-wing politicians complaining about judicial activism are very selective about their targets:
Not since the 1960’s, when federal judges in the South were threatened by cross burnings and firebombs, have judges been so besieged. Senator John Cornyn, Republican of Texas, set off a furor when he said judges could be inviting physical attacks with controversial decisions. And last week the House majority leader, Tom DeLay, called for an investigation of the federal judges in the Terri Schiavo case, saying ominously: “We set up the courts. We can unset the courts.”
Conservatives claim that they are rising up against “activist judges,” who decide cases based on their personal beliefs rather than the law.
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The inconsistency of the conservative war on judges was apparent in the Terri Schiavo ordeal. Mr. DeLay, an outspoken critic of activist courts, does not want to investigate the federal trial judge and the United States Court of Appeals for the 11th Circuit for judicial activism, but for the opposite: for refusing to overturn the Florida state courts’ legal decisions, and Michael Schiavo’s decisions about his wife’s medical care.
The classic example of conservative inconsistency remains Bush v. Gore. Not only did the court’s conservative bloc trample on the Florida state courts and stop the vote counting – it declared its ruling would not be a precedent for future cases. How does Justice Scalia explain that decision? In a recent New Yorker profile, he is quoted as saying, with startling candor, that “the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world.” That, of course, isn’t a constitutional argument – it is an unapologetic defense of judicial activism.
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