November 15, 2004

Pardon Jim Taricani?

Reason 2 to Pardon Jim Taricani: The President can Advance his Agenda by Doing the Right Thing

Carroll Andrew Morse

The President and his conservative coalition, as a matter of principle, do not like activist judges, i.e. judges who use their power to go beyond just interpreting the law. Here is uber-conservative and Bush supporter Phyllis Schlafly on the subject...

"Finally, we have a president who comes right out and targets 'activist judges' as the enemy of traditional values and urges us to use 'the constitutional process' to remedy the problem....Bush called on Americans to defend the sanctity of marriage against activist judges who force 'their arbitrary will' by court order 'without regard for the will of the people and their elected representatives.'"

Alas for Ms. Schlafly, conservatives have a poor track record of limiting the power of activist judges. The above quote shows why. Almost always, conservatives pick a hot-button issue -- gay marriage, flag burning, 'under god' in the pledge of allegiance -- to advance the cause of placing limits on the power of the judiciary. By the time the debate reaches the public sphere the issue of activist judges generally gets lost in the more visceral substance of the case being decided. For better or for worse, people respond more strongly to ideas about 'traditional values' and 'the sanctity of marriage' than they do to ideas of 'activist judges'.

Because the Taricani case is not the usual kind of case people have in mind when they hear talk of 'activist judges', it an ideal circumstance for a President concerned about activist judges to step in. This case does not involve a hot-button issue. If the President were to announce a pardon for Taricani, the civic debate that ensued would focus on the President's power to limit the actions of the judiciary. And the President would be the one broadening rights and expanding freedoms that the judiciary wants to limit...

9:02 AM
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"Because the Taricani case is not the usual kind of case people have in mind when they hear talk of 'activist judges', it an ideal circumstance for a President concerned about activist judges to step in."

That's because judicial activism is something entirely different from what Judge Torres has done. To call Torres an "activist judge" because of this ruling is to stretch the term beyond all meaning, and would create nothing but confusion. I think you're trying to jam a square peg through a round hole here.

~ Pseu.

Posted by: Pseudolus at November 15, 2004 4:26 PM