Sunday, May 31, 2009

Judicial Activist

I am one of the few people who is actually against judicial activism even when it benefits my point of view. For most, cries against judges substituting their personal opinions for the law or the Constitution is a high-brow way of disagreeing with a specific result.

It is a shame that people who make such convincing arguments in favor of judicial restraint and following the rule of law are shown to be hypocrites and liars.

Take the case Judge Sotomayor in the Ricci case.

Conservates are angry that she ruled against the mostly white firefighters who were "victims" of reverse racism and preferiential treatment towards blacks. The city of New Haven refused to use the results of a test to promote leaders because not enough blacks would have qualified.

I probably would agree that once you establish a criteria for a promotion, it should be used. Any changes should be done in the future. If the city thought there were problems with the process, they should have completed it, and then allow those who felt aggreived to pursue legal action.

But the city tried to be pre-emptive and start over with what they claimed would be a better process.

Yet the legal question is not whether you agree with the city (I don't) but whether what the city did was legally permissable.

According to the Appeals court including Sotomayor, the law was on the city's side. The case was that simple.

Those disagreeing, wanted her to go beyond that into questions of fairness and make new law.

I think new law should be made by the legislative branch.
Not by any court unless it is an extraordinary circumstance.
Even then the court should be humble and defer to the voters.

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