Judicial Activism vs. Judicial Restraint

Remember back in the bad old days when Republicans were in power and were oh so quick to lambaste the Judicial Branch of the federal government for their  so-called “judicial activism?” Brown v. Board is an excellent example of conservative hand-wringing of the activist Warren Court. A court that saw that it was inherently unconstitutional to educate African-American children in “separate but equal” schools. Separate is inherently unequal, they wrote.

Then there is Roe v. Wade where “activist judges” ended once and for all (we hope) murder and butchery of women who were not ready to be mothers, or who couldn’t be mothers, or who were raped. Activism writ large.

Oh and there’s the activism of the Supreme Court that put a president in office, a president who did not have a majority vote, but who did subsequently ruin the economy of the country he led, and drove his country into a ditch with two undeclared and unpaid for wars.

The same court, 10 years later voted 5 to 4 that not only were corporations human beings and entitled to equal rights, but also that they were better than human beings because of the effect that hundreds of millions of dollars of super PAC funds has on elections – much to the embarrassment of the Republican Party.

So why the rant? Well right here in the South we have another activist judge on the 5^th Circuit Court of Appeals in Louisiana, someone who has continued to do harm to the poorest of us and the weakest of us. All because he is a conservative that wears his politics over top of his judge’s robe.

I speak of Appeals Court Justice Jerry Edwin Smith.

In 1991, Justice Smith wrote the majority opinion in Corrosion Proof Fittings v. EPA which found that the EPA must consider cost-benefit analysis when ruling on which poisonous/toxic substance shall or shall not be introduced to the biosphere.

In 1996 Justice Smith wrote the majority opinion in Hopwood v. Texas, a decision that ended affirmative action in admissions policies at the University of Texas. An opinion that was overturned 7 years later in the Supreme Court.

In 2007, Justice Smith wrote the majority opinion in Regents of the University of California v. Credit Suisse First Boston, which barred securities fraud claims against third parties who aided in securities fraud but did not directly mislead investors. Then we had the Great Recession, caused chiefly by securities fraud.

And just last month, Justice Smith ordered the Justice Department to submit a 3-page brief, single-spaced, mind you, explaining President Obama's views on judicial activism. Smith's order was prompted by Obama's recent press conference remarks on a case pending before the Supreme Court in which the Court was considering, among other things, whether to strike down the entire Affordable Healthcare Act as unconstitutional. Obama had said that if the Supreme Court overturned the ACA, it would be "unprecedented, extraordinary" judicial activism and that a law that was passed by Congress on an economic issue had not been overturned by the court "going back to the ’30s, pre New Deal.

In short, Justice Smith is the epitome of Judicial Activism. He is the model. The type species.

So it comes as no surprise that Justice Jerry Smith issued a stay last night that prevented Planned Parenthood from receiving funds from the state of Texas so that they could provide necessary health services to thousands of women.

Compare that to the Judicial Restraint of Federal District Judge Yeakel, a Bush-appointee. Judge Yeakel may just have the same sensibilities as Smith over the issue of abortion. But the difference between Yeakel and Smith is that Yeakel knows that sometimes the best decision is to do the right thing, not promote his own political beliefs, and his religious beliefs.

Something else that is unconstitutional.

Activist Justice. Yep, it exists. But I like my people’s activism better than theirs.

Planned Parenthood Gets a Reprieve

Smackdown. Texas Republicans received another slam to the mat by a Bush-appointed federal judge today as US District Judge Lee Yeakel ordered a preliminary injunction against enforcement of the Republican-passed law that restricts Planned Parenthood from receiving state funding, all because it is a miniscule portion of its business to offer abortions to women.

Even though Planned Parenthood scrupulously keeps public funds completely separate from its abortion clinics, because it is the law, the Texas legislature clearly wants to run Planned Parenthood out of the state if not out of business. Even though Planned Parenthood is the sole source of women’s preventative health care, offering PAP smears and mammograms to women who would otherwise not afford it.

This law is the smoking gun of what has become the Republican Party’s War on Women.

Planned Parenthood in its lawsuit, made the case that cutting funding off from them amounted to a denial of equal protection of the law, last time I looked, that was the law of the land. Their constitutional rights were being abridged by the Texas legislature.

But what is even more curious, is that this Dubya-appointed judge didn’t really emphasize this gross infringement of the law. He was mainly concerned that the legislature, in passing this law, was effectively cutting off essential healthcare services to thousands of Texas women.

From the Chron:

“’In balancing the relative harm to the parties and the court’s concern for the interest of the public, the court is particularly influenced by the potential for immediate loss of access to necessary medical services by several thousand Texas women,’ Yeakel wrote.”

Now Republicans can react in one of two ways to this bit of news. They can object strenuously that this federal judge is engaged in federal overreach in a state matter, a likely scenario, and that will only serve to confirm in the minds of half of the electorate that Republicans are indeed engaged in a War on Women.

Or they can just sit back and agree that the judge raises valid concern about what is best for the public interest. Planned Parenthood provides essential services to those who would normally just have to lay down and die from cervical and breast cancer.

Guess which one they will choose?

5th Circuit Court Says Sonogram Law is Constitutional

A 3-judge panel of the 5^th Circuit Court of Appeals ruled today, only 6 days after hearing arguments, that the Texas Sonogram Law, a personally invasive law with roots in religious doctrine, does not violate a physician’s constitutional right of free speech.

The court, in essence, rubberstamped an out-of-control state legislature that sought to legislate religious doctrine into the doctor’s office.

In truth, most abortions are accompanied by a sonogram simply to help the doctor ensure the safety of the abortion. Look before you leap, in other words. So this law is not a law that encourages proper medical procedures, sonograms are prescribed as a pre-abortion procedure. What this law requires is a state-mandated speech that the physician must perform. A speech that has no medical merit at all. A speech that has, as its one and only purpose, to discourage a woman from going through with the abortion.

Not because of any medical reason. But because of the religious doctrine that life begins at conception. A completely unproved religious doctrine.

Clearly, the Court was influenced by rightist religious dogma that goes far beyond its purview as a secular body.

The Center for Reproductive Rights, an organization that was in the lead to oppose this law, is looking at its options that include asking the entire Court to rule on the case, and also a run at the Supreme Court.

Frankly, I don’t see how this case doesn’t make it all the way to SCOTUS. One way or another, it will end up there.

You know, if everyone would just agree to stop having heterosexual sex with each other, we can have this whole problem licked.

(Just kidding)

Pre-Abortion Sonogram Law Challenged in Federal Court

The Center for Reproductive Rights just filed a lawsuit in federal court in Austin on behalf of abortion providers, challenging the legality of the recently passed oppressive Sonogram Law. It will be remembered that the Sonogram Law requires all women seeking an abortion in Texas must undergo a sonogram 24 hours before her scheduled abortion (or 2 hours before the abortion if she lives 100 or more miles away from the abortion service provider).

I have been expecting this but I was surprised at their angle of attack, something that I doubt the lawyers and other non-medical people in the Legislature probably didn’t think about.

You see, I would have gone at this law head-on. It is oppressive, invasive and an unwarranted intrusion on the privacy of a human being. It is Big Government writ large fueled by evangelical religious fervor.

It is so obvious.

But no, they don’t attack it that way. Remember the lawsuit was filed on behalf of abortion service providers: medical doctors and medical clinics. Here is their angle of attack.

From the Austin American-Statesman:

“The Act profoundly intrudes on the practice of medicine, forces physicians to deliver ideological speech to patients, and treats women as less than fully competent adults,” the lawsuit says.”

“Under the law, signed May 19 by Gov. Rick Perry, a woman cannot decline to hear the sonogram description, though she may opt out of viewing sonogram images or hearing the fetal heartbeat.”

“‘The Act will force physicians to violate basic standards of medical ethics by compelling them to disregard the wishes of patients who do not want to receive this information,’ the lawsuit said.”

Brilliant.

Stupak to Retire; Teabaggers Take Credit

Today I met the news head on with the announcement that Bart Stupak D-MI-1 was going to either resign or retire after the end of his tenth term. Then I heard all of that was wrong.

Then I heard it wasn’t and that Stupak was taking the path to retirement. Here is the gist of his reasons given to the media, this from Examiner.com:

“Stupak cited long commutes between Michigan and Washington as well as a desire to spend more time with his family as the reasons for his retirement. Stupak shrugged off claims by conservative groups that their promise to challenge his reelection in November pushed him towards retirement.”

“‘I've struggled with this decision,’ Stupak said at a press conference on Marquette University's campus. "I wanted to leave a couple times. My main legislative goal was accomplished.’”

OK, well that was lame. That “he wants to spend more time with his family” is the single-most common excuse for resigning or retiring given when the reason is anything but that. The commute is tough, but really, “the commute” is the reason for giving up a congressional seat?

Now the far right wingnuts and Teabaggers have claimed credit for chasing Bart Stupak right out of Washington, DC.

And there may be some truth to that. After all, the right wing is singularly responsible for piling on vile hatespeech in Congerss (“Baby Killer”) and flooding his voicemail with such hateful language that it gives those of us on the left sure confirmation that Evangelical Conservatives are anything . . . anything . . . but Godly.

But you know, I want a piece of this action, too. The Democratic Party is a big tent party, but we sometimes have trouble with those of us in our number who claim to follow a higher calling, in their religious convictions, and vote their convictions over the wishes and will of their constituents.

I wanted Bart Stupak to just sit down and shut up when he nearly derailed the healthcare reform bill . . . twice. And in the version passed by the House, it contained language that I frankly, found offensive. It was blatantly discriminatory toward women.

No, if the truth were to come out, Bart Stupak may have lost his patience in dealing with the rabid fanatical rightwing fringe that has emerged in our country. Particularly because he dealt with them by being willing to sit down and listen to them. As if that was what these foaming, filth spewing people really wanted. But Bart Stupak was also facing a rather credible primary challenge in his home district.

From Examiner.com:

“‘Last month, before Stupak's decision to ultimately vote for health care overhaul legislation former Charlevoix County Commissioner Connie Saltonstall announced she would challenge Stupak due to his anti-abortion views. He "has a right to his personal, religious views, but to deprive his constituents of needed health care reform because of those views is reprehensible,’ Saltonstall said in a statement.”

Stupak, himself, doubts the viability of a Republican candidate to succeed him.

“‘I've seen the Republican field and obviously I'm not impressed,’ Stupak said. ‘I think it’s the weakest field I've seen in some time. I'm excited about the Democratic prospects.’”

So Teabaggers should go ahead and take all the credit they want to take on this. They should just take it all. It only makes them look even more vile, even more evil, and even more incredibly stupid than anyone has been able to hang on them to-date.

Anti-Choice Teabaggers just chased one of their own, an Anti-Choice congressman, right out of Washington DC.

And I am loving every minute of it.