The world according to Tom...

This latest episode of Republican whining about judicial activism is really chapping my ass.

Here’s the deal. I am a Republican. Have been ever since I began my recovery from Libertarianism in summer 2000. I dabble in liberalism periodically to the point where many of my friends at home and in Minnesota question how I can possibly classify myself as such. No one knows, including myself much of the time. That’s an issue for another day. What always has attracted me to the Republican Party is its adherence to the set of governing principles embodied in our very Madisonian federal constitution. Division of power amongst three branches? Reservation of authority at the state level? Wicked kewl.

So naturally, few things annoy me more than when a court will either ignore clear statutes or constitutional provisions in favor of its own opinion or stretch said statutes and provisions so far as to render their intended purpose void. Admittedly, this is something I used to accuse the Left of all the time. Heck, I still do on occasion. But no matter what, my beloved GOP was always there to condemn the action and highlight the miscarriage of justice it would inevitably cause. “Activist.” It became such a nasty word. And Republicans just love to use it.

That’s where the problem comes in. Tom DeLay and his minions have become so used to associating liberal judicial decisions with activism that now any progressively colored decision can be declared “activist” regardless of whether it is a strict interpretation of the law or not.

I have some serious issues with Tom DeLay and his comments today haven’t helped matters. Ever since he got his jockeys in a bunch over the whole Terri Schiavo matter, he’s had it out for such “activist” judges. Today, he took aim at U.S. Supreme Court Justice Anthony Kennedy as an activist for his majority opinion in Roper v. Simmons that the execution of juveniles violates the Constitution’s Eighth Amendment. DeLay: “We’ve got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States. That’s outrageous.”

DeLay’s perception of the opinion as activist has less to do with Kennedy and more to do with DeLay’s complete ignorance of what’s actually in it. Had the Court actually found that the juvenile death penalty was illegal under international law, then he might have a legitimate case that activism was at play here; however, that’s not what the opinion says.

When interpreting the Eighth Amendment, the Court has always rejected the notion that it should be weighed according to what was considered “cruel and unusual” in 1787. American values have evolved significantly since then (well, most Americans’ values…maybe not Tom’s). Determining what constitutes “cruel and unusual punishment” requires not only a survey of American practice and sentiment but that of the world as well. Upon considering that the U.S. is the only nation-state that still officially sanctions the juvenile death penalty as well as other sociological and constitutional factors, Justice Kennedy and four other justices ultimately concluded that the practice violates the Constitution.

What DeLay disliked was not the reasoning. After all, his own statements demonstrate that he didn’t understand it and probably never read it. He disliked the Court’s conclusion because it did not conform with his right-of-Attila-the-Hun worldview (to borrow a phrase from Mike Paulsen). Thus, “activist.”

DeLay’s incapacities are too numerous to list, but his clashes with the federal courts and the House Ethics Committee are hopefully exposing his true nature to Americans. If he is willing to change ethics rules for his own benefit as he has done this year and disown his own mother for allowing his father to die a dignified death, then there is no doubt that he would pull the trigger at our federal judiciary in a heart beat. I can only hope that his political boat is sunk by the time he gets the opportunity.