Thursday, May 28, 2009

Alito the Activist

According to Karl Rove, “empathy” is a code word for judicial activism.

Mr. Obama said he wanted to replace Justice David Souter with someone who had “empathy” and who’d temper the court’s decisions with a concern for the downtrodden, the powerless and the voiceless.

“Empathy” is the latest code word for liberal activism, for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn’t pass the legislative branch or, if it did, would generate voter backlash.

This must be a new code word enacted since 1991 because President George H. W. Bush thought it was a fine quality to have in a Supreme Court Justice back then. And apparently Samuel Alito didn’t get the memo either, because he certainly spoke eloquently about that quality when he was being confirmed in 2006.

“[W]hen a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.

“And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, ‘You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.’ …

“When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”

I guess he got through Mr. Rove’s vetting process because he doesn’t actually use the word “empathy,” and he does talk about avoiding “bending the law,” but what the learned counsel is describing is exactly what President Obama and Judge Sotomayor were talking about when they used the term “empathy.”

It’s also a little more than ironic that were it not for judicial activism on the Supreme Court in 2000, Karl Rove wouldn’t have spent seven years working out of the White House instead of the state capital in Austin, trying to keep Gov. George W. Bush occupied while he ran the state of Texas for him.

HT to Steve.