President Obama is gearing up for a fight to get Goodwin Liu for the 9th Circuit. For those not in the know, that’s the one from San Francisco. It represents the liberal heart and soul. I don’t think you’re going to find a conservative judge in that part of the world, so that point is somewhat moot. But, he said something that to me represents the essence of “activist” or not judges. Per Goodwin:
“The question … is not how the Constitution would have been applied at the founding, but rather how it should be applied today … in light of changing needs, conditions and understandings of our society.”
In other words, it’s open to translation as Goodwin Liu sees fit.
That is the root for activism. Now, here’s why that’s a bad thing. The US Constitution does not address a lot of things. It does that intentionally. Anyone wanna guess why?
Think about it real hard. People who read my stuff regularly should already know.
Still thinking? It’s really not that difficult. In fact, the problem today is people have made an otherwise mindlessly simple document too complicated.
OK, try this one for size.
They intentionally did not address stuff because they felt it was none of their business.
That is the message Goodwin Liu is completely missing. That is why Goodwin Liu is unfit to be a judge, period, much less a federal judge. An activist judge will make a decision on something that is not a federal issue. A conservative judge, regardless of current expectations, would say it’s not a federal issue and pass on the decision entirely. The problem we have now is there are very few truly conservative judges. Everyone feels they have to render an opinion. They don’t. The question is not whether the Contitution was to be interpreted at some random point in time, the question is always whether it applies to the situation or not. If it does not, pass it back to the state it came from and let them decide how they wish to deal with it. If another state chooses to deal with it differently, so be it. It’s not Goodwin Liu’s right to tell the states what they can do based on his personal interpretation of the Constitution.
That is the difference. Goodwin Liu is totally unfit to be a federal judge. Obama won’t care because he has the same disregard for the Constitution. The Democrats won’t care because Obama picked the guy and they’ll have to support him. The Republicans will fight him because they pretty much have to. But, so far I think they’re making the wrong arguments. I think they just need to make a poster of Goodwin Liu with the banner on it to the effect of “How would you like your Constitution today?”.
Now, where this gets really fun is applying my definition of “liberal” vs “conservative” judges, Barbara Crabb would have made a very conservative decision regarding the National Day of Prayer. She cited the fact that the Constitution is very specific in dealing with religion. She’s right. In this case by suggesting everyone pray, Congress is compelling those who don’t believe in prayer to do something they wouldn’t otherwise do. That’s wrong. She’s right. However, states CAN have a day of prayer. That’s none of her business. That’s not Liu’s business either. The right decision in this case would be to pass it back to the state to decide. A true conservative judge would do that. A true liberal judge would not. That’s the difference. Then, a person who wants to live in an environment that does have a day of prayer, or does not have a day of prayer, can choose to do so. Under Liu’s random interpretation model, they could not and therefore people in Wyoming have to fight people in New Jersey for the right to do what they wish in Wyoming. That’s wrong folks.