The Phrase That Pays Redux
04-13-2010
It is springtime outside once again, another Supreme Court retirement is in the works, and cries of judicial activism are busting out all over. The announcement last week that Supreme Court Justice John Paul Stevens is set to retire at the end of this term sent partisans on both sides of the aisle scrambling for their Supreme Court confirmation battle book of well-worn political clichés. At the top of the list is the now almost meaningless debate over the dangers of judicial activism. If you need any proof that we are in the midst of another bout of no legislating from the bench, look no further than the number of times that U.S. Senate candidate Ovide Lamontagne uses what I like to call the phrase that pays in his comments on the vacancy to Politico.com. In recent years, Democrats have become no less enamored of this particular rhetorical flourish.
 
I wrote about this issue at just about the same time last year, as we were about to embark on the confirmation battle over Justice Sonia Sotomayor. At the time I wrote:
 
Every so often, certain words and phrases become so overused in our public discourse that they lose any substantive meaning and are largely reduced to the status of political clichés. During last fall’s general election campaign, I wrote a newspaper column in which I called for several of these clichés to be banished from the political discourse. I really wasn’t getting my hopes up that anything would change, but it sure felt good to draw attention to these annoying, rhetorically lazy turns of political phrase.
 
Now, with the announcement of Supreme Court Justice David Souter’s retirement, we can prepare ourselves for the return to the political discourse of yet another time-honored (and incredibly irritating) political cliché. If the weekend’s Sunday chat shows are any indication, we will spend the next six months hearing political elites expound endlessly on the dangers of…activist judges.
 
In recent years, you might have heard the phrase used by conservatives to excoriate state or federal judges whose rulings were seen as reinforcing liberal positions on social issues like gay marriage and stem cell research. But Democrats have wisely neutralized the ideological import of the phrase by talking just as frequently about conservative activist judges whose rulings deny American citizens the basic legal rights guaranteed to them by the Constitution on issues like privacy and choice.
 
So, we are now at a point where the ubiquitous phrase (often used in combination with another classic, legislating from the bench), means little more than a judge whose legal world view is aligned with the policy agenda of the opposition party. If the appointment of a particular judge tips the balance of the court away from your party’s political interests, well then he or she is of course an activist judge. As such, this concept is not a particularly useful means of better understanding a nominee’s judicial philosophy, but has instead been captured by the knee-jerk partisanship that will inevitably surround the next Supreme Court nominee.
 
We are hearing much the same this week from both Republicans and Democrats, and if President Obama picks a nominee who is not to conservatives’ liking, then we will once again start to hear GOP Senators talk about being troubled. I will save discussion of that entry in the political cliché playbook for another day.
 
Note: I will be away tomorrow, but back again on Thursday with new content for you. -Dean


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