Is it possible for a lawyer to resist commenting on a Supreme Court confirmation hearing? I can’t. So here goes.
It is hard for me to quit shouting at the TV when I hear Senators from both parties and Judge Sotomayor proclaim that judges should merely apply the law and not make it. They all know that the Constitution is “law” and when a legislative enactment runs afoul of a Constitutional provision, the courts must strike down the statute. At the appellate court level, all decisions are precedent to some extent, so judges are always making law. Why does everyone pretend otherwise? In my last post (July 9), I suggested that “activist” judges were necessary for democracy to exist. Am I the only one who believes that? I still want to know what the definition of an activist judge is. If it is one who “makes law,” aren’t they all “activists”?