In my more than 30 years working with then-Senator Joseph Biden, I saw the confirmation process for U.S. Supreme Court nominees develop into an elaborate political dance, during which both sides trade charges that are largely predictable and often baseless.
One charge routinely offered by conservatives against Democratic nominees is that of “judicial activism.” In the case of Judge Sonia Sotomayor, this charge was leveled by conservative interest groups even before her nomination. And it’s been repeated, almost reflexively, by many of my Republican colleagues in the Senate. What’s especially unhelpful about calling someone a “judicial activist” is that, most of the time, it’s an empty epithet. As conservative jurist Frank Easterbrook has put it: “Everyone wants to appropriate and apply the word so that his favored approach is sound and its opposite ‘activist.’ Then ‘activism’ just means Judges Behaving Badly — and each person fills in a different definition of ‘badly.’ ” The term activist, in other words, is generally nothing more than politically charged shorthand for decisions with which the accuser disagrees.
