Billzebub Wrote:
Incidentally, I think where this does hurt the Dems is the fear of "activist judges" who legislate from the bench. Had there not been the national security issue, I think the judicial selection issue could have been big in '04. That this much power can be wielded, almost with impunity, by one man should scare the bejeezus out of everyone. In the future, the Republicans can hold this up as the poster child for the need for Scalia-ish judges who adhere to the most strict interpretation of the Constitution. The laws may not be correct, but the Constitution lays out the means by which we may change them. That power rests with the Legislature, and not the Judicial branch. If the law states "man and woman", then that is the law.
i for one am not frightened of what activist judges can do. there's plenty of checks and limits on judicial power. they are, after all, appointed through a democratic process (in many states they are directly elected and do not have lifetime tenure) judges do by design have the power to make unpopular decisions, but there is a definite limit to what they can impose. just imagine if the supreme court ruled in favor of gay marriage--it wouldn't be long before there was a federal constitutional amendment to ban it working its way through the states (i'd like to think it wouldn't pass, but the homophobic hatred this country is capable of continues to amaze)
also, courts lack enforcement power, they need the other branches in order to make any of their decisions stick. while its unlikely that a ruling will be directly defied by any branch of the government, there are a million ways in which opinions can be subverted. laws that are struck down can be rewritten in order to ostensibly comply with a decision, executive agencies can refuse to enforce new rules vigorously, etc. etc. and because the courts move slowly, it could be years before these matters are ultimately settled.
phrases like "judicial activism" may carry a negative connotation, but some of the most celebrated supreme court opinions of the last century were extremely activist. take brown v. board of education and the opinions that followed. they completely dismantled segregation, imposed busing as the solution to school desegregation, and were deeply unpopular. but they were absolutely the right thing to do, and i'm glad we had a supreme court that would do the right thing when elected leaders refused to do so. and this is completely in keeping with the constitution and what the framers intended--that lifetime-tenured judges would be above the passions of the day and more able to protect the rights of minorities. i agree that the courts should give deference to the legislative branch, but not if they enact laws that violate the constitutional rights of individuals.
one of the most ironic things about the whole activism debate is that the current conservative incarnation of the supreme court is one of the most activist in history. since 1994 they've struck down more federal laws than any other supreme court. and the 5 justice conservative majority has no problem wielding judicial power in favor of conservative causes, striking down gun control and domestic violence laws. not to mention that bush v. gore isn't exactly a model of judicial restraint. conservatives are curiously silent when judicial activism favors their interests.