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'Activist Judges' Under Siege

Recent events have brought the term "activist judge" (search) to the forefront of American politics, but some judicial experts say they believe the label may be nothing more than a smokescreen to taint members of the court.

"There is no such thing as an activist judge," said FOX News senior judicial analyst Andrew Napolitano, who served as a New Jersey superior court judge from 1987 to 1995.

"An activist judge is one whose ruling you disagree with. And if you agree with what the judge has done, you call them heroic and intelligent and honest. If you disagree with them, you call them activists."

Napolitano said the definition of "activist judge" differs from the right to the left side of the political spectrum.

"To conservatives, activist judges are those who permit or compel activity in which the opinion of the conservatives can only be done in the legislative branch," he said. "To liberals, activist judges are judges who prevent the government from doing things that the Legislature wants to do."

The dictionary defines an "activist" as someone who fights in support of or in opposition to one side of a controversial issue.

But members from both sides of the political aisle have been applying the label of "activist judge" to jurists who are believed to be applying their own ideological beliefs to their rulings, rather than adhering to established law.

When the Massachusetts Supreme Court ruled that it was unconstitutional to prevent gay couples from marrying in that state, President Bush and Republicans blasted "activist judges" for interpreting the state constitution in a way that "redefined marriage."

Republican lawmakers also slapped the "activist" tag on Florida judges who ruled that Terri Schiavo's (search) husband had the right to determine whether his brain-damaged wife's feeding tube should be removed. House Majority Leader Tom DeLay even asked the House Judiciary Committee to look into "judicial activism" at the time.

Now, Democrats are labeling at least two of Bush's judicial nominees, Texas Supreme Court judge Priscilla Owen (search) and California Supreme Court judge Janice Rogers Brown (search), as "activist judges" in their effort to prove they're out of the "mainstream" of public opinion on hot-button issues.

Owen has been nominated for the 5th U.S. Circuit Court of Appeals in New Orleans, while Brown has been recommended by Bush for the Circuit Court of Appeals for the District of Columbia.

Senate Minority Leader Harry Reid, D-Nev., fighting for his party's right to retain the use of the filibuster to oppose Bush's judicial nominees, said Thursday that Owen's record in Texas "marks her as a judge willing to make law from the bench rather than follow the language and intent of the Legislature or judicial precedent."

Sen. Edward Kennedy, D-Mass., said Brown's record on the California Supreme Court "makes clear that she's a judicial activist who will roll back basic rights."

"Her record shows a deep hostility to civil rights, to workers' rights, to consumer protection, and to a wide variety of governmental actions in many other areas — the very issues that predominate in the D.C. Circuit," Kennedy said on the Senate floor.

Democrats have specifically charged that Owen was an "activist" when she dissented in a series of decisions in 2000, in which the majority of her colleagues ruled that a judge could allow minors to be exempted from a law requiring parental notification of children receiving abortions.

The law allowed the notification to be bypassed if a judge found it was in the best interest of the minor. But Owen said one of the girls in question was too young to make up her own mind.

"She was simply writing, along with the rest of the court, her interpretation of a rather vague statute the Legislature had passed dealing with parental notification," said John Hill, former chief justice of the Supreme Court where Owen serves. "It had nothing to do, per se, with abortion."

Sen. George Allen, R-Va., noted last week that as former governor, he signed a law requiring parents of girls 17 or younger to be informed if their child was having an abortion.

"Justice Owen has repeatedly demonstrated an adherence to Supreme Court precedent, including Roe v. Wade," Allen said. "This is logical law … when parents, minors, go through this trauma, [parents] ought to know … Justice Owen was correct in applying the statute as she did."

Sen. Jeff Sessions, R-Ala., said approving parental notification is not activist.

"The Supreme Court has said parental notification is constitutional," he said, adding that in this case, Owen's activism "absolutely should not be held against her."

In the past, politicians and others have decried Roe v. Wade (search), the Supreme Court case that upheld a woman's right to choose to have an abortion, as the epitome of judicial activism. Another suit frequently cited is Brown v. Board of Education (search), the 1954 school desegregation case.

But legal experts said the term "activist judge" is nothing more than political name-calling and that it's a jurist's duty to rule based on his or her interpretation of law.

"Any judge, especially a federal judge, will tell you it's a judge's role, of course, to take the facts of the individual case that's before the judge and apply the law of those particular facts," said Kathryn Monroe, director of the courts initiative at Georgetown University's Constitution Project. "For the idea that judges are somehow attempting to actively [legislate] policy from the bench is really unfounded."

Napolitano agreed that it is wrong to call dissent from a majority opinion "activism," since a dissent does not create policy.

"All dissents are good, because they force the majority to rethink or justify their position," Napolitano said.

"Certainly, someone who is not ruling with the majority cannot be claimed to be effecting some sort of policy from the bench, because they're in the minority in that decision and all they're doing is expressing their discomfort or disagreement with that decision — they're not creating law," Monroe added.

"To the degree that judges feel they cannot make individual decisions in individual cases … [if] they fear that decision is unpopular, they will come under attack … we at that point risk that judges won't do what we need them to do. It's the one thing that distinguishes our country from other emerging democracies," she said.

Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall, told graduates of Brandeis University on Sunday that she was concerned over the recent attacks against the judiciary.

"I worry when people of influence use vague, loaded terms like 'judicial activist' to skew public debate or to intimidate judges," said Marshall, who helped write the Massachusetts 4-3 court ruling in November 2003 that said gays and lesbians have the constitutional right to marry.

"I worry when judicial independence is seen as a problem to be solved and not a value to be cherished."