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Fritz Feds

Sunday, August 15, 2004

Does opposition to judicial activism make you activist?

Or just "re-activist"? Dahlia Lithwick thinks so in this column in the New York Times. Her general point seems to be that stare decisis is of the same legal significance as the actual meanings of authoritative legal texts, or perhaps more legal significance. Thus, if you prioritize the text and history over the all-important precedent, you are just as activist as those who make up the law as they go along. Not only is this non-sensical, it is entirely inconsistent since one of the decisions she criticizes "re-activists" for not taking seriously enough, Lawrence v. Texas, depended explicitly on a weak interpretation of stare decisis.

But putting aside my disagreements with Lithwick's judicial philosophy, she makes a more basic factual mistake. She writes:

Re-activist judges have increasingly adopted the view that their personal religious convictions somehow obviate the constitutional divide between church and state. President Bush's recess appointment to the 11th Circuit, Bill Pryor, expended energy as attorney general of Alabama to support Judge Roy Moore in his quest to chisel the Ten Commandments directly into the wall between church and state. Pryor is entitled to be offended by case law barring government from establishing sectarian religion. But what re-activist judges may not do is use their government office to chip away at that doctrine.

Huh? What in the world is she talking about? What energy did Bill Pryor expend to support Roy Moore? I know he allowed Roy Moore to have some state lawyers (who, I believe, were lawyers that Moore picked that were then named special assistants to Pryor), but that seems pretty standard to me. More importantly, Lithwick fails to mention the fact that Pryor was very aggressive in prosecuting Moore when he refused to obey the court order telling him to remove the monument. In fact, Pryor did exactly what Lithwick is saying is okay. He expressed his personal disagreement with the case law, but did not use his "government office to chip away at that doctrine." This is not the first time Pryor has felt the need to follow the law despite his conflicting personal convictions. He also issued an order to the district attorneys in Alabama restricting their authority to enforce an Alabama abortion law following the Stenberg v. Carhart decision. But come on, everyone knows that Bush's appointees are all conservative activists, right? Let's not let the pesky facts get in the way.

UPDATE: As any regular Southern Appeal reader would expect, Feddie is also sticking up for Judge Pryor against Lithwick's misrepresentations (here) as well as those in a silly anti-Bush editorial about the how the future of the federal judiciary is threatened by Bush and his radical right-wing appointees (here).

UPDATE II: How Appealing links to a post on the Committee for Justice blog that is titled "Dahlia Lithwick smears several Bush nominees in Sunday's NY Times."

Here's their specific point about Pryor:

This comes close to an outright lie, as a full time judiciary watcher like Lithwick must know. Her careful phrasing, "expended energy," to describe Pryor's action would be laughable if there weren't hundreds of thousands of New York Times readers potentially misled by it. While Pryor did say he disagreed with the appeals court ruling on the commandments, he then expended a whole heck of a lot energy carting off the monument and engaging in a vigorous prosecution of Moore that resulted in Moore's removal from the bench. Religious conservatives in Alabama were furious with Pryor, calling him "Judas."



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