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Mark debates guest Jeffrey Lord, writer and author of The Borking Rebellion.
Jeffrey Lord is a former political director in the Reagan White House where he worked on confirmation fights for five Supreme Court nominees — three that made it (Rehnquist, Scalia, and Kennedy) and two that did not (Bork and Douglas Ginsburg).
Mark’s comment:
Are liberals or conservatives “activist judges”? Is there a way to measure such a thing? There is. Striking down a Congressional law as unconstitutional is the most aggressive, activist thing a member of the Supreme Court can do. It places the justice’s personal view of the Constitution over that of the elected legislature. Clearly it should be done in some cases, but it’s a very powerful tool that should be rarely exercised in a democracy.
So in cases where the constitutionality of a law of Congress was at issue, what percentage of cases has a Justice of the Supreme Court voted to overturn it? Professor Paul Gewirtz from my alma mater Yale Law School has crunched the numbers. And here’s what he came up with:
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
Clearly the more right-wing judges are far greater “judicial activists” than the more liberal judges. No surprise to anyone closely watching the court. But someone needs to tell the Republicans and the President that their talking points: “No legislating from the bench” lead to the escapable conclusion that he should appoint more Clinton justices like Ginsburg and Breyer!
We need more strict constructionists and fewer judicial activists. More Breyers and fewer Thomases.
And we need Bill O’Reilly and George W. Bush to shut up and stop lying to the American people.