Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."
Long is an ardent and articulate proponent of constitutional fidelity and the rule of law and opponent of legislating from the bench. As a former law clerk to both Justice Clarence Thomas and Judge Ralph Winter, that's hardly a surprise.
"...conservatives would certainly be guilty of 'judicial activism' if they engaged in it. But itís just very rare (nowadays) for 'conservatives' to do so Ėbecause they believe in fighting political battles in the proper (political) arena, win or lose. If you can provide a real current example of 'conservative judicial activism' ó because the two you have provided do not qualify Ė I would readily agree that it is improper 'conservative judicial activism.' The economic substantive due process at work in Lochner v. New York was 'conservative judicial activism,' for example. But Justice Thomasís position on the Voting Rights Act does not qualify as 'judicial activism' or as any betrayal of originalism, nor does the legal argument for Frank Ricci. The text of the 14th Amendment says 'No person shall be denied equal protection of the laws.' The text of the 15th Amendment gives Congress enforcement power against racial discrimination in voting, not enforcement power in the absence of racial discrimination. And nothing in the history of the 14th Amendment undercuts the argument that a white or Latino firefighter is discriminated against when a promotion is denied to him after a non-discriminatory test, on the ground that no blacks could thereby be promoted. It is never 'activism' to faithfully interpret and apply the Constitution. If you are truly evaluating the text and history and principles of the Constitution (which never contradict each other, but where evidence is scanty in one area, it may be more plentiful in another; this is the opposite of inventing stuff out of thin air, applying oneís own personal views, or invoking some evolving, enlightened global moral consensus), it isnít activism; itís the only correct way to apply the Constitution as an Article III judge. I want to bend over backwards to say you are right that 'conservative judicial activism' is possible, and that itís as bad a way for an Article III judge to behave as it is to engage in liberal judicial activism. I just want to come up with a better example, because your examples are wrong. And because any really good actual example is so elusive, itís proof that conservatives do not, as you imply, engage in anything like the judicial activism that liberals do. Just look at Ed Whelanís posts on this blog under 'This Day in Liberal Judicial Activism': could you, in a million years, construct a parallel continuing feature, 'This Day in Conservative Judicial Activism'? OK, 'On this day in 1905, a majority of the Supreme Court held that freedom of contract prevented New York from regulating the working hours of bakersÖ.' The material just isnít there. Your examples do not cut it for the reasons stated, but I am happy to validate your hypothetical thesis with a hypothetical case of conservative judicial activism or two: Letís say that some hypothetical Supreme Court (because there is not even one vote for this position on the current Court) ruled that the Constitution prohibits any abortion at all, i.e. that the 5th and 14th Amendments affirmatively and absolutely protect the right to life of unborn human beings in this country from their moment of conception ó i.e., the perfect judicial opposite of Roe v. Wade and Doe v. Bolton. Although this would be less of a constitutional and originalist stretch than were Roe and Doe themselves, and although some serious and scholarly people make this argument that the pro-life position is protected by the existing Constitution (I think, though I may be wrong, that this is the view of people such as Lew Lehrman and Doug Kmiec), I would understand if you said such an argument, or ruling, would represent 'conservative judicial activism.' Another example might be, if conservatives said, the Constitution (in its present form) enforces a regime of marriage limited to one man and one woman, and that if a state wants to legislate marriage among persons of the same sex, an unlimited number of persons of any sex, etc., states cannot do so. I can see where one might label this
'conservative judicial activism' ó but, as we see, conservatives are not trying to do that, only to either (a) amend the Constitution properly, as the document itself provides, instead of illegitimately 'amending' it by judicial fiat, or (b) fight the battle for traditional marriage in the legislatures, where absent a proper constitutional amendment it belongs. That these are mere hypotheticals is the point: conservatives just arenít doing what liberals are doing in the judicial activism category. And if there were ever a moment when this point needs to be conveyed to the great majority of Americans whose instincts on this are so much sounder than Larry Tribeís, and Barack Obamaís, and Ruth Bader Ginsburgís, and Sonia Sotomayorís, it is now. This is why your column was so heartbreaking. As one 'soccer mom' told me today, the arguments about the court seem like 'inside baseball' to her fellow Americans (the ones who are going to sustain or allow the collapse of self-government): 'They just think itís about liberal vs. conservative and whose ox is getting gored. They donít realize that this is about procedure and order and the rule of law, on the one hand, vs. chaos and power grabs on the other.Ē
New York junior Senator Kirsten Gillibrand is a judicial activist advocate and rubberstamp for liberal activist judges.
Long advocates impartiality instead of favoritism.
As Long wrote on April 16, 2009 in "Whatís the Matter with Empathy? Obama's criterion for picking federal judges would turn equal justice on its head" (www.nationalreview.com/articles/227308/whats-matter-empathy/wendy-long):
"Whatís wrong with being empathetic to...any group or individual in general?
"Whatís wrong with it is that federal judges swear an oath to 'administer justice without respect to persons' and to 'do equal right to the poor and to the rich,' among other things."
If you want fairness for all, Long should be your candidate.
If you want liberal judicial bias, Senator Gillibrand is your candidate.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.