Did you miss the part about “holding up to scrutiny”, counselor? Or the lack of factual support for it being a widespread problem, even if defined? Maybe you’ve nodded off to sleep. 
“The stupidest thing Bush has ever done” deserves its own thread, btw. There’s a bit of competition for the honor.
That reminded me of something John Fund said in the WSJ yesterday:
Maybe they’re starting to get a clue that fewer people fear them than did so just a couple months ago.
Unless you seriously believe that the federal constitution limits the state’s ability to regulate the number of hours a baker may work, I think Lochner certainly stands out as a clear example of judicial activism, one that certainly holds up to scrutiny.
And while we can certainly quibble over how widespread judicial activism actually is, that’s no defense of the practice. It’s like defending the treatment of prisoners at Abu Ghirab on the grounds that there aren’t very many of them, and that’s the only narrow circumstance where we mistreat prisoners.
This whole thing has become so through-the-looking-glass that I halfway wonder if the following conversation isn’t too far removed from actual history:
Bush: Harriet, we really need a hardline justice on the Supreme Court so we can throw a bone to the godfloggers who have been our most loyal constituency.
Miers: Oh, yes, George! You’re the best President ever.
Bush: Problem is, our political capital is shrinking, so I’m not sure we can ram a troglodyte through as successfully as we might have six months ago.
Miers: You’re right, George! You’re the smartest person I’ve ever known.
Bush: So I’m thinking we need a decoy, a sacrifice, somebody we can throw to the wolves, and then ride the backlash to put in the guy we really want.
Miers: How clever! And all for the good of the country. You’re such a patriot.
Bush: How’d you like the job?
Miers: …
Bush: I’m going to nominate you for the vacancy.
Miers: …Me? Really?
Bush: See, here’s the thing. It’s win-win. If you get confirmed, then you’re a Supreme Court Justice.
Miers: Gosh.
Bush: But what’s probably going to happen is that the Senators won’t see what a good, smart person you are. They’re going to get all oogedy-boogedy about how you’re my own personal attorney, how you’ve never been a judge, and they’ll go dumpster-diving in Texas for past shenanigans. And if they reject you, then I get to complain about the obstructionist legislature, the American people will rally to support me, and I’ll have more power to nominate somebody better.
Miers: “Better”?
Bush: Well, not better. You know what I mean. Better in the sense of better for the thing, not, y’know, the other way. The bad way. Right?
Miers: Uh…
Bush: Don’t worry, I’ll fight for you. No matter how it turns out, I’ll make it look good. If we win, then you’re on the Court. But even if it looks like you’ll get voted down, I have to look like I’m fighting for you all the way. Got to make it look good.
Miers: <quivering lip>
Bush: Come on, it won’t be that bad. It’ll be a few weeks that won’t be much fun, but then everybody will forget about you. It’ll be a footnote. And I’ll keep you around, I promise.
Miers: You promise?
Bush: I do. Trust me.
Miers: Oh… kay. I guess. Sure, George, let’s do it. You can count on me.
Bush: I knew I could. Now drop and give me some sugar.
Miers: You want me to take my teeth out?
Yeah, I know, it probably didn’t happen this way. This is probably too subtle even for the political manipulators these guys have demonstrated themselves to be. It’s certainly easier to chalk this up to a combination of (a) Bush’s crippling isolation in the center of ass-kissing yes-men, and (b) ineptitude.
But it does fit the facts. And it’s fun to think about.
Except the toothless sugar. That’s just oogy.
:shrug: If your best example is a single case from a century ago, that sorta pulls the rug out from under this follow-up:
Um, pal, the political issue here, one constantly raised by the RW and GOP partisans, IS precisely that the practice is widespread and must be stopped. You can try to dismiss the core question as a distracting “quibble” if you like, but that sort of weaseling doesn’t work here, ya know. Or should know. Now would you care to get back on the topic?
C’mon. The minute Bush nominates a hardliner neo-troglodyte to the Court, all this “reasoned approach” shit the conservatives have been using with Meir will fly out the window, and even the most reasoned objections by Dems will be labelled obstructionism.
You asserted that “…the finest legal minds the SDMB has to offer have not been able to provide any clear examples of this mythical creature [judicial activism]…”
I noted that this is not so, and provided one example.
I also noted that there are many other examples of more recent vintage (and even listed a few), but that I preferred to use an older case like Lochner as my retort in order to reduce the inevitable emotional responses.
Your assertion was false. I have demonstrated as much. You are now trying to move the goalposts by ignoring the assertion you originally made. And really, that sort of weaseling doesn’t work here, ya know
Here’s a link to the text of a speech Ms. Miers gave while an attorney wherein she seems pretty comfortable with “legislating from the bench.” The link may require you to register for free with the WP.
“Pay no attention to the man behind the curtain!”
No, that was the example used after eliminating a bunch of more recent examples on the grounds that they were too obvious and too likely to lead to thread hijacks.
Hell, the first one that occurs to me is from this very year (Kelo – I think slapping Wite-Out[tm] over the word “use” in the Fifth Amendment and squeezing in the word “purpose” is pretty much a textbook case).
Which textbook might that be, Steve? The one that has the magical, elusive definition of “judicial activism” that doesn’t depend on the eye of the beholder?
Your, and Dewey’s, reluctance to discuss the details of any actual case from within the last century undercuts your assertion of obviousness, and their scarcity likewise undercuts the political statement that it’s widespread - even if you think it’s a real problem, something that is also not obvious.
You’re never going to get universal agreement of what judicial activism is, so if that’s the standard, then I suppose we could say it doesn’t exist. But, frankly, I think *Roe *easily passes the test considering how many people on both sides of the aisle think it was poorly decided. When you get enough people who favor the outcome but disagree with the ruling, that’s judicial activism. *Roe *fits that definition quite well.
Lochner was decided in April 1905, so I guess it just misses the cutoff for being “in the last century,” although it led to a series of similar decisions that would certainly qualify. I like to use it because, unlike modern cases, it represents activism towards a conservative end, and thus doesn’t spur nearly the vitriol and emotionalism that the modern, left-leanding cases do.
Anyway, I’m more than willing to discuss the details of any of the cases listed, modern and otherwise – and indeed, in a wide number of threads I have in fact done so.
But let’s not lose sight of the original point: your assertion that opponents of judcial activism can’t point to specific cases in support of their position is foolish and untrue.
Nonsense. My post gave a clear, if implicit, definition (a ruling based on the pretense that the words of the Constitution are something other than they actually are, in order to arrive at a result that cannot be supported by the actual words).
(John Mace’s operational test isn’t really definitive, but it is certainly indicative. It is worth noting that disdain for Kelo crosses virtually all political lines, and support for it is pretty well confined to the vested special interests who benefit from the abuse of eminent domain.)
And according to CNN, the answer to the original title is: No.
We’re getting radio reports that she’s been withdrawn from consideration. It will be interesting and perhaps scary to see who they come up with instead. Apparently there’s only one John Roberts.*
*Although with a name like that you’d think there’d be plenty out there.
Charles Krauthammer forecast this. He said an easy way to pull Meirs from nomination would be to deny access to her memos and such, claiming attorney/client privilege. It looks like that is what has happened.
Obligatory link.
IOW, in practice, nothing different from “the eye of the beholder”, as already stated.
You do, I trust, understand that the GOP Right’s stated opposition to “judicial activism” is simply political code for “reverse Roe and ban gay marriage”.