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Trying to call the reactive proactive

by Bryan Zepp Jamieson
May 26, 2009

One of the favorite ploys of the extreme right when they are trying to take over a country is to try and take over a major party, and while everyone is watching that, sneak “ringers” inti the opposition party. That way, when they get far enough along that they can just take over, they have some support in reserve among politicians fondly imagined to be checks on their power grabs.

The far right took over the GOP, and along the way, managed to install quite a few ringers in the Democratic Party. Of the 57 Senators in the Democratic Party, at least 14 are “DINO”s – Democrats In Name Only. Mostly from the south and the intermountain west, they can be pretty well counted upon to break with the party and support the GOP on key issues whenever they can get away with it.

If Norm Coleman drops his mean-spirited and intractable obstructionism against election winner Al Franken taking his seat, giving the Dems an operating majority of 58 Dems and two independents who usually vote with them, there will still be those GOP ringers. They are there based on the cynical attitude that the opposition party should be subverted and to hell what it means for the country.

The far right has lost its grip, and it is one particular social contagion that will be back under control for another generation or two. (Societies always go mad and flirt with fascism every 35 years or so). The angry snarls and snappings at their own vitals as they go should ensure that they will remain out on the edge of society for another generation or so now.

But the slimy residue remains, and one of those is Senator Ben Nelson, D-GOP. While it's perfectly acceptable for a Senator to oppose a Supreme Court nominee presented by a member of his own party, and indeed commendable, Nelson couldn't wait for a legitimate reason.

He's threatening to filibuster a nomination that Obama hasn't made yet. We don't know who Obama is going to name. Even the pundits are hedging their predictions. We're all as clueless as “Ed” of “Ed, Edd and Eddy” fame.

Appearing on Faux News (of course), Nelson said, “I don't care whether they're liberal or conservative. I just want to make sure they're not activist. I don't want an activist on the bench.”

Well, the Republicans -did- warn us that Democrats wanted to filibuster judicial nominations and that this was a very bad, very unAmerican thing to do. And sure enough, now we have one. I'm sure the Republicans will waste no time in condemning him for it. Any minute now...

Nelson is one of those elected officials who bears out Ambrose Beirce's early 19^th century remark that Congress has adjourned and many villages are getting their idiots back. The clown didn't even wait to see who Obama was going to nominate before shooting off his mouth. Hell, even the REPUBLICANS had enough sense to at least wait that long. Well, most of them, anyway.

Nelson dragged out the old “activist judge” saw. This one has been popular with the far right ever since the SC struck down segregation laws in the south. The conceit is that judges roam the land in black-robed packs, looking to waylay, hogtie and gang rape any laws that might contribute to public happiness and good order. They do this because they're all in the ACLU, and as we all know, the ACLU hates civil rights.

The notion that activist judges “make law” is a popular one with the right, but they get fairly upset when you ask them to point to any law that a court has written. There are none, of course. What a court CAN do is declare an existing law unconstitutional, and that renders it null and void, and it's up to the legislative bodies that passed the original law to decide whether to rewrite the law or scrap it altogether.

Nor are the judges out looking for bad laws. (And with Congress stuffed with village idiots, there are many, many bad laws). Congress could pass a law stripping Baptists of the right to vote, and there wouldn't be anything any judge could do about it until someone filed suit. (There are fast track options so a law that draconian would reach the Supreme Court in short order, where the law would be struck down, 5-4). In most instances, when an upper-level court does strike down a law – and it's usually the Supreme Court that does so – it comes after years of appeals, hearings, counter appeals, trials and yet more appeals. If it reaches the high court, culpability has long been determined, and the focus has shifted to the law itself, and whether it is just and in accordance with the Constitution.

Another line the right likes to use is “judges who interpret the law.” It's a bit hard to apply the law without understanding what the intent of the law is, but this seems to be what right wingers want. If the law says Baptists can't vote, then a judge has no business deciding anything other than whether the guy filling out the voter registration form was a Baptist or not, and if he was, throwing him in jail for fraud. The law is the law is the law. Justice is for sissies.

This brings us to “strict interpretation” of the Constitution. The same people who think that no law can possibly be vague or ambiguous, or that no case presents anything other than guilt or innocence, believe that there is no room for interpretation of any phrase in the Constitution. Never mind that the Supreme Court has put in 210 years trying to unravel meaning from the Constitution and has only a few definitive answers. Strict interpretation supposedly means that no public official can do anything that the Constitution doesn't explicitly mention, which is absurd on the face of it. I could argue that even though it establishes a judiciary, the Constitution doesn't explicitly give courts the power to try people for murder. Strict interpretation would lead me to suggest that no one could inquire of any candidate for public office what his religion is, or that no one may own a gun unless a member of a well-regulated militia.

“Original intent” -- what the framers had in mind when they wrote the constitution – gets even sillier. The Constitution was a compromise between groups with very different mindsets, and folks like John Adams and James Monroe disagreed much more than they agreed. The Original Intent crowd like to quote from the Federalist papers a lot, but rarely from the anti-Federalist papers. Among some of the original intents to be found among the minds that crafted the constitution were requirements that the military be disbanded when the country was not at war, that corporations receive charters only for specific, limited goals, and were to be dechartered upon completion of that goal, or that all real property was to revert to the state for resale upon the death of the owner. None of those ideals are particularly near and dear to Republican hearts, I'm guessing.

When a right winger talks about “activist judges” he just means he doesn't want a judge who is likely to strike down his stupider ideas. That would include stupid ideas like pretending creationism is a type of rival science, or that workers should be banned from unionizing, or that corporations should have full access to public lands to do whatever the hell they want.

So, for the sake of the country, let's hope that Obama DOES nominate an “activist judge”. An activist judge is one who is doing his job properly, and if he puts that job ahead of his own politics, as David Souter, a conservative, did, you get exactly the type of judge America needs on the Supreme Court.

And maybe Rush Limbaugh could lift Nelson's tail and re-sex him. I think he's in the wrong party.

Posted: May 28, 2009

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