Don’t be fooled, judicial activism is a political ploy

The recent confirmation hearings for President Trump’s second nominee to the U.S. Supreme Court, Judge Brett Kavanaugh, displayed once again that one’s perception of judicial activism all depends upon whose ox is being gored. The Democrats – the disadvantaged party with the ox – were angry, aggressive and almost unhinged at times, with Sen. Cory Booker, D-New Jersey, being the most raucous of the group. The Republicans – the ones ultimately doing the goring with their nominee – aptly played the part of incredulous truth seekers, shaking their heads at all the grandstanding and vitriol as if it were the first time they’d been part of such a spectacle.

While Booker was busy being the 2018 version of a gutsy politician – releasing “confidential” Kavanaugh e-mails in supposed defiance of Committee rules when he had already been granted permission to use the documents publicly – Senators Ted Cruz, R-Texas, Ben Sasse, R-Nebraska, and Lindsey Graham, R-South Carolina, each made news with impassioned but logically flawed speeches attacking the Democrats. Sasse blamed the modern politicization of the Supreme Court on lawmakers ceding their duties to faceless and inaccessible bureaucrats within the executive branch, when Sasse has done little himself to upset the executive branch’s unquenchable thirst for power. Graham, meanwhile, called the Democrats hypocrites for attacking Kavanaugh as an activist judge, when politicians from both parties have spent their careers imputing the fitness of opposition nominees by any means necessary.

Nothing of consequence was ultimately accomplished at these hearings. Kavanaugh will eventually be confirmed, and both parties will continue to perpetuate the notion of “activist judges” when it is convenient to do so. The same talk is rampant here at home.

Four of our seven Kansas Supreme Court justices were appointed by Gov. Kathleen Sebelius, and Secretary of State Kris Kobach has sharply criticized the so-called activist court for years. In 2015, Kobach said our Supreme Court’s decisions in school finance and death penalty cases illustrated “mediocre results.” In 2016, he underscored the need for more conservative courts, defining conservative as “not activists,” and “judges who just apply the law as written and don’t make up the law to suit their ideology.” This year, as a candidate for governor, Kobach has adopted as a central theme of his campaign the need to strip our Supreme Court – “seven unelected judges” – of its power to decide school finance issues. He expects us to overlook that his own well-documented brushes with the judiciary might be indicative of his disdain for any court that does not empower him by validating his view of the world.

This is the root of the problem, and it’s not unique to any one politician on either side of the aisle. Bashing judges as so-called “activists” for the sake of political expediency has become a full-fledged epidemic in this country. Make no mistake: The outside politicization of our courts has nothing to do with legislators ceding power, and everything to do with politicians in both competing branches grabbing power.

The notion that judges are being “activists,” rather than deciding cases based primarily upon written laws and established precedent, has been cut from whole cloth by power-thirsty, would-be autocrats on both sides who desire ultimate control over the winners and losers in our system. If we still believe in the rule of law as we should, we as voters must conclude that there is something inherently suspect about any elected official who seeks to gain political advantage by impugning the judicial branch, and we should tailor our votes accordingly.

Blake Shuart is a Wichita attorney.

This story was originally published September 19, 2018 at 5:04 AM.