Need help: answer to Repug talking point about activist judges

[Misskittycat]

legislating from the bench.

I'm going to staff a local MoveOn booth outside a supermarket tomorrow afternoon.

I stopped by today while others from my group were there. One woman responded to the informational flyer about how she doesn't want activist judges legislating from the bench, and wants to stick to the Constitution. (Her first comment was that she watches Fox News 22 hours a day.)

I shouldn't have even tried to engage her - I went off on her big time, and it had no effect at all. (I won't do that tomorrow.)

I started explaining to her that she was spouting Republican talking points that were misguided. But I realized that, even as a lawyer, I was unable to easily explain to her why her thing about "activist judges" was right-wing BS.

So how do I easily explain why this talking point is bullshit? I'd like some refresher comments from other lawyers, too, reminding me of the salient points on this issue.

Thanks.

[snowbear]

1. She only sleeps 2 hours a day?

:crazy:

[kodi]

2. try this on for size

http://www.dailykos.com/story/2005/7/6/14178/92515

[usregimechange]

3. activists like the court in Brown v. Board of edu?

[Starbucks Anarchist]

4. I can think of a couple:

For one, the five SC justices who voted to stop the recount in Florida to give Bush the win sure seemed to go against the will of the people.

Secondly, judicial activism can be a good thing. If not for judicial activism in Brown vs. Board of Education, public schools might still be segregated.

[Mythsaje]

5. I'd simply tell her (or him)

that ANY judge, be they RW or LW, at this point, will be "activist judges," since strict interpretation of the Constitution would make 95% of the Federal authority in this country null and void. By strict interpretation, the Drug War would be nonsense, income tax would be repealed, and the states would be left fending for themselves...which would be fine for an economically advantaged state, but would pretty much screw the red states.

She wants to know what the country would be like if we nullified activist judges? Tell her to start talking to Libertarians.

[punpirate]

6. Do a search here...

... with the keywords "activist" "judges" and "study" because someone just posted, in the last few days, a recent legal study showing that most of the judicial activism stemmed from conservative/Republican judges, by a pretty substantial margin.

Cheers.

[RoyGBiv]

7. Some background ...

You're fighting an uphill battle, to put it mildly. So-called judicial activism is nothing more or less than a buzz-phrase incorporating several ideas about the proper relationship between the various branches of government. No less a personality than Andrew Jackson criticized judicial activism in a dramatic fashion, even if he didn't use the phrase, when he sarcastically declared the Supreme Court had made its decision (Worcester v Georgia) and was welcome to try to enforce it. The core of the debate lies in the historical battle of the final authority in Constitutional interpretation, to wit Marshall's obiter dictum in Marbury v Madison.

The more conservative (little "c") elements of this society have long deplored this decision, even when it benefits their interests and even if they don't really understand individually what it is they oppose, but the more liberal elements have also opposed the reach of this decision in situations like Taney's opinion in the Dred Scott case and the majority in Plessy v Furgeson, both clear examples of judges engaged in what is commonly called legislating from the bench. In other words, the criticism of judicial activists has come from all ideological quarters, but the modern-day right wing has refined the criticism in such a way that it has no real meaning. It is merely used to criticize anything the SC does with which the RW does not agree and as such has little to do with activism itself.

How to answer the criticisms from people like the woman you encountered is, then, no easy matter. You actually addressed the issue correctly in a literal sense. She was spouting right-wing talking points and not much else. She had and will probably never have any real grasp of the issues involved. She's been told or come to believe that "legislating from the bench" is bad, probably due to issues like abortion. You could have asked her various leading questions that, with an appropriate answer, could have been been used to lead into a discussion of how various judicial decisions her right-wing heroes might call "activist" have benefited her, but that always runs the risk of you not getting an appropriate answer. She could well be one of these people who thinks women should stay at home, stay pregnant, never be able to divorce without permission, not benefit from an education, and who thinks minority racial groups should be kept "in their place." And she might be someone who thinks someone else does have the right to dictate what goes on in her own bedroom. They are out there, strange as it may seem.

So, I applaud your resolve and wish you luck. As the header suggests, I'm just offering background. I no longer try to argue this point with the willfully ignorant.

[Carolab]

8. Ask her how she liked the activist judges who placed Bush in office.

Tell her how they wrote a "one-time ruling" just for him...and ask her how she feels about it in particular since we now know that Gore really won.

[Carolab]

9. Here are some great "legal" talking points for you.

http://www.lambdalegal.org/cgi-bin/iowa/documents/record2.html?record=1457

What To Say

Following are some short talking points that target the myth of “activist judges” and make the case for fairness:


The right wing’s label of “activist judges” is a smear tactic. It’s a label designed to discredit any court that supports basic fairness rather than the right-wing’s anti-gay agenda.

The judges behind recent legal victories for gay people are often quite conservative. The two deciding judges in the Massachusetts marriage case were appointed by conservative Republicans, and the Supreme Court Justice who wrote last summer’s landmark gay rights ruling was a Reagan appointee. (For more examples, click here)

Courts are just doing their job, which is upholding people’s civil rights. For more than 200 years, the courts’ job has been to step in when politicians do something unconstitutional or the majority wants to deny basic civil rights to a minority group. (That’s why “tyranny of the majority” has been condemned since this country was founded.) Denying basic rights to a particular group of Americans is unconstitutional.

Judges aren’t supposed to hold a finger to the wind and make decisions based on politics. They’re one of three branches of our government; they need to be above politics and they must make decisions based on the Constitution and our nation’s long-standing principles of fairness.

Judges ruling for gay rights today are no more “activists” than the judges who struck down bans against interracial marriage, ordered an end to school segregation in the 1950s and issued other rulings that at the time were politically unpopular but in line with our Constitution’s promises.

Whatever you think of judges, changing our nation’s Constitution in order to deny rights to one group of people is extreme and dangerous. That’s why it’s never been done before in the entire history of the country.

Lesbian and gay couples and their children need the rights and protections that only marriage provides; when those protections are taken away, same-sex couples and their families are put in jeopardy. This is a discussion about real people whose lives are deeply impacted because they can’t marry.

[Skittles]

10. where does it say in the Constitution the SC picks the president?

AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA

[Misskittycat]

11. Thanks for the info. n/t

[Misskittycat]

12. Update: The woman complained to the supermarket manager

(along with two other general complaints from other customers)and the manager banned our group for Sunday (actually, forever).

My rant was specifically mentioned, of course.

I feel really bad about this. We're apologizing by e-mail to the store manager, but I messed it up for the whole group. I knew at the time that I was acting inappropriately, but I just couldn't seem to stop myself. Each point the lady raised was stupider than the next. Of course, it was the initial, "I watch Fox News 22 hours a day" that really set me off and made my head explode.

Clearly, I'm not cut out for interaction with the general public on political matters. I just get too frustrated with the level of stupidity out there, and I can't seem to just let it go without trying to "educate" the person. I'll stay behind the scenes from now on.

[Carolab]

13. Don't give up just because that lady and the store manager are pills.

If it were ME, I'd complain about HER.

She was off-base herself ranting at you, IMHO.

[Misskittycat]

14. No, I was wrong. I acted inappropriately. We got permission to

set up a booth outside the supermarket. The store didn't have to give permission, and they shouldn't have had their customers subjected to any kind of confrontational stuff. We were just handing out informational documents, and I blew it. It was my job not to go off on the customers coming out of the store.

But thanks for responding.

[Carolab]

15. Well, I think she was trying to egg you on.

So I wouldn't excuse her, either.

But, then, I wasn't there, so what do I know?