Die Already!

A few days ago I was flipping channels and I came upon Joe Solmonese, head of the Human Rights Campaign, and Pat Robertston, Blowhard Extraordinaire, on Hardball. I don’t usually watch Hardball because Chris Matthews gives me a twitch in my right eye. Seriously.

Anyhoo, because it was Joe Solmonese, I stopped. Unfortunately, I had missed what Joe had to say and only caught Robertson waxing rhapsonic on the dangers of “Activist Judges.”

I want the activist judges meme to die. I want it to die a horrible, painful death. I want constitutional scholars to kill it dead.

I want the next person on Hardball with Pat Robertson to stop him when he starts talking about the activist judges and say the following:

“You know Pat, I’d like to clear something up for the viewers out there. When people talk about 'activist judges' not having the right to overturn legislation passed by either a legislature or by a majority of a state’s citizens, what they’re really doing is challenging the concept of judicial review. Let’s look at that for a minute.

Judicial review, the power of the courts to review legislation and determine its constitutionality, was established in 1803 by the US Supreme Court in Marbury v. Madison. It has since been written into numerous state constitutions as not just a power of the court, but a constitutional mandate.

If you want to challenge judicial review, that’s fine. You can do that. But people need to recognize that 1) you are challenging 206 years of American jurisprudence and that includes cases that were decided in a way you like 2) the ability to challenge the constitutionality of judicial review is established by the same case you would be arguing was decided wrongly. How’s that workin’ out?”

Then I want every supposedly reputable talk-show host and moderator to accept the power of judicial review as a given. Whenever Pat Robertson or one of his ilk starts spouting off about activist judges, I want Chris Matthews to say “Pat, as you know judicial review has been the law of the land in this country for over 200 years and we’re not here to debate the relative merits of that. Please stay on topic.”

I want the standard for television news programs to be “If you don’t have any arguments other than ‘Activist Judges’ you’re not ready for prime time. Please come back when you can formulate an argument based on facts and current American jurisprudence.”

Here’s the thing. I detest just about every position held by Antonin Scalia. I think his interpretation of constitutional doctrine is completely backward. As far as I can tell, just about every decision he’s ever written as a Supreme Court justice has been flat out wrong. I think he’s out of touch with reality. I think his Catholicism influences his decisions more than he thinks it does. I think he’s mean-spirited.

But I would never in a million years suggest that he doesn’t have the power to make a decision just because I disagree with his stance. Because that’s not the way our Constitution is set up.

I want that meme dead.