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Judicial activist


Judge Martin Feldman admits to being a personal friend of Justice Antonin Scalia, and he clearly belongs to the Scalia school of judging, another conservative activist swashbuckler, determined not to leave important decisions to elected officials, or the elected officials' appointees, or even the American people, if it comes to that. In the greatest feat of judicial activism ever, a Scalia-led Supreme Court chose the president of the United States in 2000, wresting that right from the voters. If General McChrystal wants to keep his job, he should appeal to the Supreme Court. They'd quickly overturn President Obama's dismissal of the general.

To the Scalias and Feldmans everything looks like a job for Superjudge. Feldman lit into the Obama administration's moratorium on deep-water drilling in the Gulf of Mexico, a ban imposed after the accident that has brought catastrophe to the Gulf. To try to prevent another such occurrence is "arbitrary and capricious," by Feldman's lights, as well as "heavy-handed" and "overbearing." Federal judges — the conservative activist ones — will decide when America needs protection, and from whom.

"If some drilling equipment parts are flawed, is it rational to say all are?" the judge wrote. "Are all airplanes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines?" Because one bullet felled a police officer, is it rational to say that a second bullet fired into him would be harmful also? Because a company has shown repeatedly that it cares only for profit, regardless of risk to others, is it rational to assume the company won't give away its money and join a monastery?

The first report we heard of Feldman's ruling, on NPR, didn't mention that he was a Ronald Reagan appointee. This is bad reporting. Reagan set out to fill every judicial opening with a right-wing Republican, regardless of merit. He made no secret of his design. Every Republican president since has followed it. That's why we have Scalias and Feldmans and unelected presidents, why we have government of, by and for the corporations.

Conservative activists like Scalia and Feldman claim to be originalists, reading the Constitution as the people who wrote it intended. Lawrence M. Friedman, a Stanford law professor, has written on originalism:

"A true originalist would have to dump overboard almost all of modern constitutional law, including Brown v. Board of Education, all of the decisions on sex discrimination, all the decisions about the right to privacy ... There is no way to deduce most of the modern rulings on human rights or the powers of Congress or the states from the words of the text as it was understood in the late 18th century."

That may have been what Reagan had in mind.

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