No phrase currently in vogue fits the definitions of "cant" as well as does "activist judge."
Several years ago, at an event hosted by Eastern Washington University's political science honor society, Spokane attorney Les Weatherhead delivered an especially interesting speech on this very subject. Weatherhead argued that the pejorative references to "judicial activism" are just that -- cant. He argued that given the imprecise use of the term on the one hand and the task of judging on the other, all judges at one time or another are unavoidably "activist." Given how so many laws are vaguely written, judicial activism, defined as "legislating from the bench," simply cannot be avoided.
The phrase isn't used to describe. Instead, it is most often used for just the opposite purpose: to confuse. The "peculiar" constituencies (religious conservatives, corporate interests) that invoke the phrase seek not clarity but a rallying point in support of their political agenda.
Whenever conservatives weigh in on the question of, say, Supreme Court appointments, we are treated to a cacophony of cant; harangues against all those "activist judges" who "legislate from the bench." As for role models of non-activist judges, their cry is, "give us another Scalia and Thomas." And President George W. Bush agrees. On many occasions, he has said that he wants judges who will be "strict constructionists," who will not "legislate from the bench," who will respect separation of powers and most especially the primary role of the Congress to make laws.
So Scalia and Thomas are the great respecters of separation of powers and the legislative prerogative?
In a New York Times op-ed piece published a few months back, authors Paul Gewirtz and Chad Golder checked out this claim. Assuming that the term as used isn't simply cant, we would expect to find that the voting records of Scalia and Thomas reveal a strong reluctance to strike down statutes passed by the Congress, whereas the judicial activists on the Court -- the two Clinton appointees (Ruth Ginsburg and Stephen Breyer) plus that turncoat (David Souter) would have voted to contradict Congress and other legislative bodies from the various states.
The authors examined the nine justices' respective records of voting on cases involving federal statutes and then calculated the percentage of those cases that each respective Supreme Court judge voted to invalidate. They created a legislating from the bench scorecard. Instead of the so-called liberal wing of the Court doing the legislating from the bench, it turns out it has actually been Thomas and Scalia (along with Anthony Kennedy) who have been the activists. Actually, that much-maligned "liberal wing" -- Souter, Stevens, Ginsburg and Breyer -- have been the justices who most often defer to the legislative result.
Percentages of overturning congressional laws:
Thomas: 66 percent
Kennedy: 64 percent
Scalia: 56 percent
Rehnquist: 46.9 percent
O'Connor: 46.8 percent
Souter: 42 percent
Stevens: 39.3 percent
Ginsburg: 39.1 percent
Breyer: 28 percent
Weatherhead would probably point out that these percentages, by themselves, reveal nothing more than the level of hypocrisy spawned by spouting such cant without serious reflection. It could be that Thomas, Kennedy and Scalia have made the stronger case that the Congress did, in each case, violate the Constitution. But that's not the point.
The point goes to the pernicious use of labels by so-called "conservative" Republicans to stack the judicial deck in a way that ups the odds of getting the political results they seek. To paraphrase Clint Eastwood's famous line, "principle's got nuthin' to do with it." Quite obviously, the Bush administration and the Republicans running Congress long ago sacrificed principle (packaged as "cant") on the altar of political expediency.
Now we hear from the conservative intelligentsia -- the likes of William Kristol, Charles Krauthammer, David Brooks and George Will -- who are all in a dither over the Miers nomination. No "cantians" they. They tell us that they hoped to see a distinguished nominee, but what Bush gave them was another crony. Kristol summed up the frustration when he said: "the idea that one is supposed to sacrifice both intellectual distinction and philosophical clarity at the same time is just ridiculous." He and his conservative colleagues make continued reference to the need for principled rulings and intellectual rigor.
OK, so far so good. We can all go there. And yes, Miers is a crony.
But wait a second. Move over, Bill. Make way, Charles. Keep smiling, David. And why don't you finally retire, George? After all, you guys don't count when the GOP heavyweights come rumbling into the room.
I refer to Mr. Cant himself: anti-judicial activist Sam Brownback, senator from Kansas and potential presidential candidate in 2008. Principle? Intellectual rigor? Cute, but for Senator Sam, it's results that count: judges who will make sure that fetuses are granted constitutional rights; that gays are banned from, well, from anything that state legislatures want to ban them from (there's nothing like a good banning); that everyone has a private arsenal; and that religion -- hey, the more the better....
As with everyone parroting the phrase "activist judges," the joke's on Sen. Brownback: He may vilify "activist judges," but we all know that's what he really wants.