Name calling

Obama’s first Supreme Court nominee will be called an activist, but that comes with the territory.

With Supreme Court Justice David SouterâÄôs retirement announcement, the latent germ of a perpetual political controversy began to set roots as speculation stirred over the potential replacement. Although Souter is regarded as a liberal member of the court, itâÄôs going to be tough for President Barack Obama to avoid accusations of shifting the judiciaryâÄôs balance of power. ObamaâÄôs focus should be selecting a skilled jurist with the understanding that the nominee will be rejected as a âÄújudicial activist.âÄù Hopefully, he also understands that this is a meaningless charge. Although there has been a lot of academic discussion on the subject, in practice, judicial activism is any court ruling that disagrees with your own political stance. If you are a conservative, for instance, the courtâÄôs ruling in Lawrence v. Texas (where the court struck down sodomy laws as unconstitutional) was an activist decision, or âÄî in the words of Justice ScaliaâÄôs dissent âÄî âÄúimposing oneâÄôs views in absence of democratic majority will.âÄù However, itâÄôs not activism to overrule democratic majority in a case like District of Columbia v. Heller (affirming the right of handgun ownership), because that would abridge individual freedom. So much for activism. Although almost certain to be ugly, there will be an irony in RepublicansâÄô charges of activism, because the man that nominee may replace âÄî the Republican-appointed Justice Souter âÄî was widely reviled for being too liberal; in other words, not enough of an activist for the conservative cause. Obama should accept it, though, because activism, like beauty, is in the eye of the beholder, and âÄújudicial activistâÄù is just jargon for âÄúwe donâÄôt like your face.âÄù His response should be: âÄúSounds like your problem, not mine.âÄù