Home > Republican > Dana Milbank: “Republicans flip-flop on ‘judicial activism’ “

Dana Milbank: “Republicans flip-flop on ‘judicial activism’ “

February 27th, 2014


From Dana Milbank 2/27/14

There was a time not too long ago when Republicans decried “activist judges.” Now they’re lamenting that judges are not being activist enough.

“Unfortunately, the courts have been reluctant to exercise their constitutionally conferred power,” House Judiciary Committee Chairman Bob Goodlatte (R-Va.) proclaimed at a hearing Wednesday. He called on the courts “to check the president’s overreach,” and he complained that “the federal courts have read their own powers much more narrowly” than they should.

This newfound love of activist judges is the latest manifestation of what has been called Obama Derangement Syndrome: The president’s opponents are so determined to thwart him that they will reverse long-held views if they believe that doing so will weaken his stature.

Republicans have, for example, long deplored the filing of “frivolous lawsuits.” But at Wednesday’s hearings, they were contemplating legislation that would authorize either chamber of Congress to file lawsuits against President Obama — even though legal experts, including one of the Republican committee members’ own witnesses, have said the efforts would fail.


Why the switch?  Why the Obama Derangement Syndrome?   Isn’t judicial activism what most judges do?  It’s difficult to think of higher court cases that leave out politics. Is it even possible to decide cases without being political?

It’s possible, I suppose but mighty difficult.

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  1. George S. Harris
    February 27th, 2014 at 09:52 | #1

    If you recall, Senator Mitch McConnell said during President Obama’s first term that the Republicans were going to do everything they could to make sure he was a one term president. Well that didn’t work, thus you see things like the forty-something attempts to overturn the ACA and a stumble along Congress that has gotten almost nothing done. And deep down I still say, although many don’t agree with me, there is an element that is about having this black man in their “White” House.

  2. Rick Bentley
    February 27th, 2014 at 10:09 | #2

    I used to think the irrational furor on the right wasn’t about race. I still think it’s primarily not – these people hated Bill Clinton at least as kuch, and were pathologically addicted to denigrating him. But some of that is in the mix. To me it’s like a chicken-and-egg paradox – do they make snarky little racial jokes because they hate him? Or do they hate him because he’s black?

    The big picture, which I have to admit amuses me, is that when the right wing so forcefully denigrates Obama, they sentencde themselves to another generation’s worth of black voters who feel totally alienated from them, and will vote 90% against them. When I see FOX News doing their thing I think, wow what a self-destructive infantile fit.

  3. Rick Bentley
    February 27th, 2014 at 10:12 | #3

    On the judicial activism issue, Bush vs. Gore in 2000 was telling. That was pretty activist. Telling States they can’t interpret their own (contradictory) laws on how to count votes, despite those laws being a domain of the states, because the count might violate the “civil rights” of Bush votyers. All 5 Republican shill justices on the Supreme Court voted to stop Floria from handling its own business, which to me put the lie to the whole notion of states’ rights. States have rights if and only if it doesn’t interfere with the expressed will of the powers that be.

  4. George S. Harris
    February 27th, 2014 at 12:01 | #4

    Rick-did you forget to have your coffee this morning? Or maybe new glasses or a flare up of arthritis?

  5. Rick Bentley
    February 27th, 2014 at 12:35 | #5

    just sloppiness, sorry. jamming out thoughts in between the yawning maw of as-yet uncoded software tasks.

  6. Rick Bentley
    February 27th, 2014 at 12:45 | #6

    there are typos in the first version of my software code too, I assure you.

  7. Kelly_3406
    February 27th, 2014 at 16:42 | #7

    @Rick Bentley

    My recollection was that the Supreme Court ruled that the Florida Courts allowing a change to procedures for counting votes violated the Equal Protection Clause. The ruling was not that the state could not change procedures, but rather that it could not do so after the counting had already started.

    During a hotly contested election, it does not seem like judicial activism to require the states to abide by the rules agreed to by its legislature. That would be like changing the rules for overtime in a basketball game after time expired in regulation.

  8. middleman
    February 27th, 2014 at 17:15 | #8

    The GOP is obviously switching back and forth on a lot of fronts. Another one is states rights- they’re all for them until it gets in the way of a pipeline they want, like Keystone XL. They’re all for individual rights like gun rights, but civil rights of gay people is a different deal altogether, as in Arizona and other states. They’ve really lost their way in the past 15 years.

  9. Rick Bentley
    February 27th, 2014 at 19:00 | #9

    Kelly, the core reality of what happened in 2000 got obscured in all the partisan fighting and court challenges, and Peggy Noonan calling for fights in the streets and so forth. But I think that this is an objective view of what happened :

    The Constitution says that states shall figure out their procedures for counting votes. Obviously this is constrained by federal law – the 3/5 compromise, for example, is no longer valid. But there are differences in recount procedures and challenge procedures, and they are the domain of the States and their legislatures (and their courts, presumably).

    The Florida legislature had created two laws which were in this case contradictory. One said that the Florida Secretary of State had to certify a winner within some time interval – 30 days I believe? The other said that the loser had the right to ask for recounts in up to three counties.

    Like so many other laws that our politicians make, these were imperfectly crafted. They sat and gathered dust, and were of little use when the big event occurred. They called for two things to happen that could not both happen.

    Who should determine the solution when two state laws collide? The State Supreme Court, I would think – working in part off the original intent of those laws. And they did – they said, let’s count everything all over again. This did not seem particularly crazy to me. The Presidency was known to swing on the vote count in Florida.

    The US Supreme Court ruled that Florida forfeited its right to determine its own procedure, because some abstract civil right would be violated if fraud occurred. That does not sound like a rational argument to me. It ignores the obvious point that fraud may have already occurred, which was the original point of enabling recounts.

    The whole exercise showed me that what these people fight about, all the way up to the US Supreme Court, is not anything noble such as state’s rights or protecting our system of government. It’s about which group of cronies gets to seize the reigns of power, so that they can shower down gifts and jobs upon their friends. It couldn’t have been more nakedly obvious. particularly in the way that the GOP had been crying “states’ rights!” for years to justify bigotry and racism, but were up in arms about the idea of Florida recounts not going the way they wanted. Silly things like black kids not being allowed into state colleges, at gunpoint, well that’s messy but it’s our system of government – states’ rights! But a state doing a recount that might benefit the Democrats? HOLY CRAP! That has to be stopped!

    This thing wound its way through every level of our legislative system, and at every turn Democrats/liberals fought for whatever was in Gore’s interest, and Republicans/conservatives fought for what was in Bush’s interest. This was the point that I realized that politics is a particularly dirty animal, and that these people aren’t really fighting for anything to do with you or me.

    When I hear a Republican have the gall to talk about states’ rights, I remember all this, and retch a little bit. Believe it or not, it’s not who became President that bothers me. Gore may well have been a disaster. He probably would have been – from what he’s become, I regret my vote for him. What bothers me is seeing the naked lunch at the end of the fork, the way that the two parties have managed to politicize every facet of our governance, and the lack of principle shown in the whole affair. If you squint at these guys, you can see that there’s nothing there to believe in.

  10. Rick Bentley
    February 27th, 2014 at 19:05 | #10

    It’s pretty clear that Bush would have won the recount, particularly if late military ballots were allowed in.

    And it was also clear that if a recount had taken place, and Gore had come out the winner, the US House would have refused to certify Florida’s vote. By a party-line vote the House would have installed Bush as President.

    And I’m not sure that would have been any uglier than what did happen – a 5-4 vote in the Supreme Court where every conservative member made a lie out of their ostensible judicial philosophies – their ostensible reason for being.

  11. February 27th, 2014 at 20:14 | #11

    @Rick Bentley

    I think you ask an interesting question: chicken/egg? I think it varies. Some folks hate him because he is black. Others hate him because he is a Democrat and throw in the black hate just to pile it on. Those same people might not have an issue with other non-whites.

    But you are right. Those who hated Clinton did it with a vengeance. It was pathological. I agree. But then Bill Clinton was our first black president.

  12. February 27th, 2014 at 20:15 | #12


    Very little consistency. I agree.

  13. February 28th, 2014 at 20:18 | #13

    My favorite is privacy guns vs a woman’s right to control her reproduction. that’s my favorite I think.

    There is so much hypocrisy, how does one pick and choose?! Healthcare is one of my favorites!


    The concept that people should be required to buy health coverage was fleshed out more than two decades ago by a number of conservative economists, embraced by scholars at conservative research groups, including the Heritage Foundation and the American Enterprise Institute, and championed, for a time, by Republicans in the Senate.

  14. March 1st, 2014 at 11:30 | #14

    “The concept that people should be required to buy health coverage was fleshed out more than two decades ago by a number of conservative economists, ….”

    And they were wrong.

  15. March 2nd, 2014 at 15:22 | #15

    Activist judge = judge that you disagree with.

  16. Rick Bentley
    March 3rd, 2014 at 13:57 | #17

    Yeah, that seems to be the best definition.

  17. March 4th, 2014 at 00:50 | #18

    Then again…every court since “Marbury v Madison” is an activist court since judicial review is NOT a constitutional power……

    Just sayin….

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