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Molly Ivins: The New Activist Judges

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Posted on Aug 24, 2006

By Molly Ivins

AUSTIN, Texas—Another bee-you-ti-ful example of the right-wing media getting it all wrong. Here they are having the nerve to mutter in public about “activist judges” because Judge Anna Diggs Taylor has pointed out that spying without a warrant is illegal in this country—so warrantless telephone tapping is illegal in this country.

Improbably enough, the first complaint of many of these soi-disant legal scholars is that Taylor’s decision is not well written. No judicial masterpiece, they sneer. Nevertheless, warrantless spying is illegal. Did it ever occur to these literary critics that Taylor has a lay-down hand? The National Security Agency program is flat unconstitutional, and for those who insist this means Osama bin Laden wins, it’s also ridiculously easy to fix so that it is constitutional.

Conservatives in this country have been yipping in chorus for years about “activist judges,” and frankly, like fools, many of you bought into the phony political rhetoric about those terrible jurists.

Somehow, activist judges are held responsible for gay marriage, Roe v. Wade and everything else Americans disagree about, as though Americans would never disagree without their encouragement. Conservatives have been mad at the Supreme Court since it decided to desegregate the schools in 1954 and seen fit to blame the federal bench for everything that has happened since then that they don’t like.

As any liberal could have told you, the conservatives didn’t want a right-wing shift on the nation’s courts because of “social issues”—that’s just a handy political ploy. Honestly, people, haven’t you figured out what this is all about yet? Money. The conservatives are in a snit about “liberal courts” because of money.

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Corporations being prosecuted for breaking the law! Tobacco companies forced to pay huge fines! Oil and chemical companies made to pay for cleanup at Superfund sites! Oh, the horror, the horror. The Wall Street Journal’s editorial page couldn’t stop shivering over it for years.

“This is the richest business term in recent memory,” Mark Levy, a Supreme Court litigator, told The Wall Street Journal, which has stopped quivering at last. Moving right along in the long-drawn-out battle to deny ordinary citizens access to their own courts, the justices closed down the right to allow class-action securities cases in state courts. The court also kept out of a lower-court decision preventing taxpayers from suing to stop tax breaks that states and municipalities use to lure big business, a notorious example of raging bad policy.

Meanwhile, what a nice gift from the federal bench to the insurance companies when a federal judge in Mississippi decided that hurricane insurance policies excluding water damage are “valid and enforceable.” As many of our fellow citizens had an opportunity to learn during Katrina, it’s a challenge to sit around in a class IV hurricane, trying to figure out which is wind and which is water damage. “Ooops, there goes the roof, probably wind, followed by a huge run of waves rolling over the house, could be water.”

Insurance company stocks went up across the board after the decision, while the industry kindly advised its clients to “keep your eyes wide open when buying new homeowners’ insurance.”

Congratulations to the Katrina survivors who were hanging on by their fingernails.

Money, money, money is the motif of the “New Activist” federal judges, but they have also been busy, busy limiting congressional authority and individual rights. As People for the American Way notes, federal appellate courts—effectively the court of last resort for most Americans—are working on: questioning the constitutionality of the Endangered Species Act, overturning the National Labor Relations Board rulings against anti-union discrimination and other unfair labor practices by employers, allowing the Bush administration to keep secret the records of the Cheney energy task force, and rewriting by court order a state law on First Amendment activity.

Other Bush appellate judges have ruled to deny protection to workers who file claims of race and disability discrimination, made it harder to protect the environment, and issued other decisions that will affect our lives and liberties for decades.

Activist judges, indeed.

To find out more about Molly Ivins and see works by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website, www.creators.com.


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By Mad as Hell, September 6, 2006 at 12:11 pm Link to this comment
(Unregistered commenter)

“A federal court judge has recently reaffirmed that warrantless searches are illegal, among other things, on the grounds that they violate the quite clear wording of the 14th Amendment which states ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’”

Charles, you may be an attorney, but you need to re-read the Constitution.  That’s the FOURTH Amendment above, one of the Bill of Rights, not the Fourteenth, which defines Due Process.

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By eman8, August 24, 2006 at 10:23 pm Link to this comment
(Unregistered commenter)

Who is the audience for this article?  Who is the “You” and who is the “I”?  Who is the “Us” and who is the “Them”?

Let’s put more energy into what we are doing to bring people together in unity… it truly is the only way we will see change made in the world. 

Keep up the non-mainstream reporting!  And please keep it accessable to those who really need to read it the most.  Thanks Molly Ivins.

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By John C. Bonser, August 24, 2006 at 2:22 pm Link to this comment
(Unregistered commenter)

Joe -
Reread my post. There is nothing in it that would indicate FOX is my source for information.  It is not! Had you understood what you read you would have realized that I was extremely critical of Fox. My point was that the bb blamed the lack of the search on a “liberal judge.” When I ended with “There are times we blame the judicial system for the failure of law enforcement to to its job!” It should have been more than clear that I was not critical of our judges (but was sarcastically critical of FOX). I do apologize for not making that point directly since you were unable to understand that from my post.

However, if someone who is as astute a liberal as you pretend to be thought I was agreeing with FOX we are in what Molly would call deep “squat!” I do not watch FOX (that day I was simply surfing news). Exactly why did you think that I said, “There are times we blame the judicial system for the failure of law enforcement to to its job!”

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By HENRI ANDRE FOURROUX III, NEW ORLEANS LA, August 24, 2006 at 2:16 pm Link to this comment
(Unregistered commenter)

Judge Anna Diggs Taylor,

Thank you and keep using your mind as judge you are supposed to.

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By first time grandma, August 24, 2006 at 1:54 pm Link to this comment
(Unregistered commenter)

Joe, the point in checking in on FOX is to see what the opposition is saying. They check on Us, after all! You can’t fight what you don’t know. We may not believe them, but plenty of others do.

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By charles hillestad, attorney-at-law, August 24, 2006 at 12:08 pm Link to this comment
(Unregistered commenter)

A federal court judge has recently reaffirmed that warrantless searches are illegal, among other things, on the grounds that they violate the quite clear wording of the 14th Amendment which states “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The President and, as usual, the self styled “Conservatives” who apparently want him to have the sole determination of whether liberty or individual rights may continue to exist have mounted two attacks on the decision.  The first is to trumpet the “terrorism threat” that has been used to justify almost every assault on the Constitution since 9/11.  It boils down to there are supposedly no other ways to effectively prevent terrorism, so we apparently must destroy the Constitution in order to “save” it.  While it didn’t seem necessary to go that far when we were battling genuinely terrifying world powers like Germany, Japan or the Soviet Union, for some reason, the Conservatives insist it is suddenly the sole hope against an opponents who is hiding out in a cave.

The second attack advanced by Conservatives against the Constitution is a more insidious one, one that started in 1954 when the federal courts decreed that blacks and minorities may not be segregated after all.  It is that assertion that “Liberal activist” judges have been exceeding their authority.  This theory has been gaining strength since the Roe v. Wade ruling indicating that privacy is a protected right as well.  Unfortunately, the mantra has been repeated so often, some people, for the most part those who have never bothered to read the Constitution, seem to actually believe it.

Naturally, the judge who upheld the Constitution against the Presidents domestic spying programs is loudly portrayed by Conservatives as being just another such “activist.”

Activisim it may be, but certain activism is fully permitted by the Constitution itself.  For instance, it is one thing for a judge to interpret ambiguous clauses in the Constitution as allowing greater articulation of individual rights including those not previously mentioned, such as the right of “privacy.”  Since the Constitution expressly states in Amendment IX though that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” how can it be argued otherwise?  In other words, “activisim,” to use the term Conservatives disparage, is fully permissible where individual rights are concerned.

It is quite a different thing for the President to deliberately ignore plain and unignorable language in the Constitution like the overt prohibition against warrantless searches.  He seems to have forgotten he sworn an oath of office which states in elegant simplicity “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”  Note that it is the Constitution and the Constitution alone singled out in that oath for protection.  Similar language is included in the oaths for many other offices including for Congress and officers in the military.

To violate that oath of office is probably one of the “high crimes and misdemeanors” enshrined in the Constitution by our forefathers as a reason to impeach the President.  If the President persists in forgetting his duties, perhaps he ought to be reminded.

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By Joe, August 24, 2006 at 9:35 am Link to this comment
(Unregistered commenter)

You saw it on what? FOX! You must be IQ deficient to watch and believe the crap on FOX, as the truth. Get your head out buddy before you start breeding more dummies.

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By Pragmatique, August 24, 2006 at 9:08 am Link to this comment
(Unregistered commenter)

Wire tapping is bad enough, but wait until you see who they’ve been wire tapping! Remember, Cheney and Rummy are Nixon’s guys.

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By John C. Bonser, August 24, 2006 at 7:09 am Link to this comment
(Unregistered commenter)

After 9-11 while surfing the news chanels, I was watching two of FOX’s resident intellects discussing the information that had been sent to the FBI in DC pleading to search Mossoui’s (spelling?) computer. The bb commented that the search had probably been denied by “a liberal judge.”

There are times we blame the judicial system for the failure of law enforcement to to its job!

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