Senator Elizabeth Warren is scared. Of what? Aside from taking a free DNA test to establish her Native American history, she is scared of what judicial nominees proposed by President Donald Trump might do! They might actually…rule in a particular ideological manner. (You know, like what many of Barack Obama’s judicial nominees did? I’m looking right at you, Sonia Sotomayor and Elena Kagan.)
Fortunately, there is a term Chief Running Mouth’s concerns: judicial activism. And it’s especially fortunate for me, since I can write this week’s Leftist Lexicon!
What the Left thinks it means – judges ruling against common sense and the will of the people for purely conservative goals
What the Right thinks it means – judges ruling against common sense and the will of the people for purely liberal/Leftist goals
What it really means – judges ruling against common sense and the will of the people for purely ideological goals that have no basis in logic or existing law
Although I’m primarily focusing on the Left’s concept of judicial activism, I have to look at the Right’s concept of it briefly. Conservatives tend to look at the law as sacrosanct and rigid, so when a judge forces the law to bend a bit, it can be disconcerting to say the least, especially if the change doesn’t seem to make sense. Take the recent court rulings related to Christian bakers being sued by gay couples. Conservatives and libertarians, such as your humble correspondent, saw the change made by judicial fiat as shaky and illogical while limiting the freedoms of others. Even if we agreed with the end goal, the way we got to that goal can be an example when the bench made law.
And the Left is perfectly fine with it, as long as they agree with the decision.
The Left sees the law as more flexible than Plastic Man doing yoga. If there is a law stating “No Dogs Allowed”, the Left will find a way to turn it into “Only Dogs That Self-Identify As Dogs Not Allowed, and Even Then It’s Okay.” Why is this? Because the more gray a law is, the more flexible it becomes and the more exceptions that can be turned into law by finding a judge that agrees with the Left’s ideology. Given enough time, the Left would find a way to make it illegal to miss “The View”.
This dichotomy between the Left and the Right as it pertains to the law shows us two of the purposes of the law. One is to protect the public (which is what the Right tends to favor), and the other is to punish those who violate it (which is what the Left tends to favor). Put another way, the law is like a gun: it depends on how you use it that determines the result.
Now watch my email box overflow with Leftists complaining about “gun culture” or some such.
The point is a single judge’s decision in a court case may not be limited to that one situation thanks to a little thing the kids like to call precedent. Whenever there is a court decision, it can be used again and again like the Russia excuse for why Hillary Clinton lost the 2016 election. And when you have Leftists involved, those court decisions can and will be used in all sorts of bizarre and unrelated ways. Need to justify shutting down a Christian baker who refuses to decorate a cake for a gay wedding for dogs? Well, according to Schmedlapp vs. Throckmorton (a case that had to do with two neighbors fighting over who owned the crabgrass on a particular parcel of land), the baker has to do it because the judge said something about dogs being gay over crabgrass. Never mind the fact the judge was using the term “gay” to mean “happy”! Words matter!
Ah, but there’s another element of the law the Left doesn’t like to discuss: the spirit of the law. As much as they say they see nuance, the Left completely ignores it when it comes to the law because more often than not it ruins what they want to achieve through judicial activism. You can muddy the waters with language, but it’s a lot harder to do with the spirit of the law because it tends to be contextual and specific. Once you start bringing facts and context into the equation, judicial activism becomes more transparent and less justifiable.
To Chief Running Mouth’s point, it’s not that Trump is appointing judges who aren’t impartial. It’s that he’s appointing judges that aren’t partial to the Left, and that can only mean disaster for them. But if the judges Trump appoints are equally as loose with the law as the Left’s appointments tend to be, we will have the same problem, just with a different colored team jersey. Any judge who lets ideology trump the law should be removed from the bench because he or she is putting a thumb on the scales of justice and creating more headaches down the road. And when you consider the current jurisprudence cholesterol that clogs up our legal system (just watch any judge show for a week for proof), we don’t need to add judicial activism making the problem worse!