As I watched the recent Sotomayor confirmation hearings, I reached the conclusion that conservatives — at times — can oversimplify the definition of judicial activism. This oversimplification gives credence to those who brush aside judicial activism, i.e., those who say it is merely what one side accuses the other of when they disagree with each other.
Senator Kyl’s questioning on day two provides a good example of this oversimplification.
And has it been your experience that every case, no matter how tenuous it’s been and every lawyer, no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality it [can] make? Some precedent that he’s cited? It might not be the Supreme Court. It might not be the court of appeals. It might be a trial court somewhere. It might not even be a court precedent. It may be a law review article or something.
. . .
I can’t imagine that the answer would be otherwise than, yes, you’ve always found some legal basis for ruling one way or the other, some precedent, some reading of a statute, the Constitution or whatever it might be.
. . .
I’m simply confirming . . . that, in every case, the judge is able to find a basis in law for deciding the case. Sometimes there aren’t cases directly on point. That’s true. Sometimes it may not be a case from your circuit. Sometimes it may be somewhat tenuous and you may have to rely upon authority, like scholarly opinions and law reviews or whatever.
This questioning is troubling because it simplifies the idea of judicial activism to such an extent that its meaning is distorted and as a result misunderstood.