‘Judicial monasteries’ and ‘activist judges:’ A reader’s glossary

Jon Ward Contributor
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The realm of judicial nominations has a lexicon all its own, where coded Washington language takes on extra layers of complexity. When President Obama nominated his first judge to the Supreme Court last year, the word of the hour was “empathy.” This time, the term is “consensus builder.” Judicial monastery“ and “constitutional core values” have been bandied about. And what would a debate over judges be without use of “judicial activism“?

To help decipher the politician-speak, here’s a glossary of the most-used buzzwords:

Consensus-builder (or coalition-builder): This is the chief quality that the White House has said the president wants in his nominee this time around. It’s a highly situational requirement. Obama is replacing Justice John Paul Stevens, who served on the court for 35 years, and will be replacing a liberal with a liberal. But with this pick, Obama wants to go after the swing vote on the court, Justice Anthony Kennedy. Having increased the racial and gender diversity on the court by getting Sonia Sotomayor confirmed last year, Obama is now focused on getting a jurist who can be a mover and shaker in chambers. He wants a judge who is smart and liberal but who can also play nice with the conservatives on the court and win over Kennedy.

Judicial monastery: In some ways, even though this term has been around for years it is just a rehash of or alternative to the “empathy standard.” It is used derisively, to denote that the president does not want someone with no clue to how the law, and legal rulings on what the law says, affect ordinary people. Candidates such as solicitor general Elena Kagan, Michigan Gov. Jennifer Granholm and Secretary of Homeland Security Janet Napolitano best fit the description of coming from outside the “judicial monastery.” Of course, to many this just means they don’t have sufficient experience to be a judge.

Constitutional core values: Here we get closer to the core debate over judges. Obama threw this term out on April 28, speaking to reporters in the back of Air Force One. Obama said judges should show “deference” to the Congress and to state legislatures “as long as core constitutional values are observed” in making the laws. Sen. Orrin Hatch, a Republican from Utah who is senior on the Senate Judiciary Committee, said the president has been “selective about when he wants the Supreme Court to defer to Congress.” Hatch contrasted Obama’s criticism of the court’s upholding a congressionally mandated ban on partial-birth abortion with the president’s displeasure when the court overturned part of the McCain-Feingold election law in its Citizens United ruling. “He wants them to use values that are not in our written Constitution to strike down legislation that he does not like, but wants them to ignore values that are in our written Constitution to uphold legislation that he likes. Those sound to me like political, rather than constitutional, values,” Hatch said.

Judicial activism: Both Democrats and Republicans love to accuse one another of favoring judicial activism, which is the opposite of of “judicial restraint.” The reason both sides can claim to be restrained while the other is activist is because they are talking about being restrained toward different things. Conservatives preach restraint toward contravening the original meaning of the Constitution. Liberals, as Obama said on Air Force One, prefer restraint be shown to contravening the legislature. Of course, both sides also claim to be faithful to the Constitution, but there is of course a raging and long-standing debate over what that means. Justice Antonin Scalia has rejected the idea that the Constitution is “living” and evolving by saying it is “dead,” and its meaning is fixed. And some of the left’s leading legal thinkers have of late tacked away from the “living Constitution” school of thought – which they said “unduly minimizes the fixed and enduring character of the Constitution’s text and principles” – in favor of “keeping faith” with the Constitution. Thomas Sowell described how conservatives seek to restrain themselves by the Constitution this way: “The real question is whether the jurist is searching for such boundaries or for escape from such boundaries — whether what is involved in the interpretive process is a genuine dilemma or tactical agnosticism.”

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