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What is an “activist judge,” and do we want one on the Supreme Court? These questions are likely to return to the forefront of public debate in 2006, when the nomination hearings for Judge Samuel Alito begin in the Senate. Alito will surely deny that he is an activist of any kind — but the Senate should remember well the events of these last few weeks of 2005 in considering whether or not his rejection of that label is a claim to virtue. On Dec. 21, federal appeals court Judge J. Michael Luttig slammed the Bush administration for requesting the court vacate its earlier decision in the Jose Padilla case. That earlier ruling gave the president broad authority to detain “enemy combatants” indefinitely on U.S. soil without being charged. But the facts have changed quite a bit since the decision was rendered, and Padilla no longer looks to be guilty of the crimes the Ashcroft Justice Department initially leveled against him. So the government’s request amounts to a bid to avoid Supreme Court review of the decision given these new facts. What’s most interesting about Luttig’s rejection of the administration’s legal gamesmanship is that he is a conservative judge, believed to have shared space with Alito on the short list of nominees to the Supreme Court. While not actually accusing the Justice Department of purposely charging Padilla with national security crimes they had no evidence to support, Luttig wrote that the administration has left “the impression” that Padilla may have been held for these years “by mistake, an impression we would have thought the government could ill afford to leave extant.” Also on Dec. 21, Judge James Robertson, one of 11 judges who sit on the Foreign Intelligence Surveillance Court, resigned from his position on that court. This followed public revelations that in the wake of Sept. 11, the president authorized broad warrantless surveillance on hundreds of U.S. citizens. The president claimed the FISC process was too burdensome to be used in the war on terror. While he has not yet spoken publicly about his decision, The Washington Post reported that two associates familiar with Robertson’s decision said he “privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA [Foreign Intelligence Surveillance Act] court’s work.” Are these the actions of activist jurists? I think so, and thank goodness for them. We are at a time when the executive branch is claiming maximum powers, and the majority of the public is not concerned with protecting the rights of non-majorities. Times like these are the very reason we have a third branch of government, and a Constitution that assures that basic civil liberties are always protected — even when it seems inconvenient to do so. Judges who act to protect individual rights under these circumstances should be applauded. Judge Luttig acted through his official role as arbiter of the case before him, throwing out the Justice Department’s meritless request. He found that fear of a setback in the war on terror — that the Supreme Court might question whether other prisoners being held with Padilla really are such grave threats that normal judicial processes should not apply — is not a valid reason to vacate a case. He wrote that the president’s actions injured the government’s credibility before the courts in all litigation ancillary to that war, stating “[w]e cannot help but believe that those consequences have been underestimated” by the government. Judge Robertson is also thought to believe the president’s secret surveillance order has tainted the courts. But he had to step down in order to protest the administration’s power grab. That’s because the FISC operates in secret, so Robertson could not avail himself of the normal judicial processes to challenge the president’s interpretation of his constitutional and statutory mandate. In fact, it is unlikely we will ever see a challenge to the president’s electronic surveillance order, which makes his bold assertions that he will continue to authorize the spying seem like the cries of a coward. Since, by definition, no one ever knows they were a target of a secret search, so no one will ever have standing to challenge its validity (though I’m sure smart lawyers are working overtime this holiday season to try and figure out a way to accomplish that). The only way a judge can protest, acting faithfully to his oath to defend the Constitution, is to resign. The has been much speculation these past five years about the historical pendulum that swings between over-zealous actions to address national security concerns, and too much emphasis on protecting privacy and free speech. We’ve seen the former before — Japanese-American internment in World War II, and the red scare of the 1950s are two obvious examples — and now we find ourselves smack in the middle of another cycle. In fact, right now the pendulum is stretched so far on its axis that the string controlling the limits of its arc is starting to untwine. This makes this time — right now — the most important moment for an activist judiciary. Yet by a peculiar twist of historical timing, it is also the worst time in history to be labeled an activist judge. Just look at another conservative jurist who felt the need to explicitly reject an activist label in striking down an obviously unconstitutional activity. In the very last paragraphs his 139-page ruling finding that teaching intelligent design in public school violates the separation between church and state, Judge John E. Jones III wrote, “Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy.” Despite his protestations, there will be many commentators calling Jones an activist judge. But he is right to say it’s not the court’s ruling that represents the “activism” to be criticized in this case — it is the decision to introduce religion into the public school in blatant disregard for the First Amendment. Likewise, in Washington, it is the Bush administration’s activism in the face of clear constitutional and statutory barriers that is the problem. The administration is attempting to change the law without going through any of the required debate and procedures. Since Sept. 11, the president has created new categories of “enemy combatants,” renamed warrantless searches of Americans under the rubric of “authorized signals intelligence,” permitted an expanded definition of torture, created secret prisons in Eastern Europe and pursued the “rendition” of suspects to countries known to torture prisoners. Remember John Poindexter’s Total Information Awareness project? How about John Ashcroft’s TIPS neighborhood surveillance program? New biometric information collected at airports? The list goes on and on. I hope the actions of these judges in recent days represent a trend by the judiciary to restrain the Bush administration’s activism. And I hope when Judge Alito’s hearings begin, the Senate will keep in mind that activist jurisprudence is not the crime, but instead a virtue needed most in the times we live in. Lauren Gelman is the associate director of Stanford Law School’s Center for Internet and Society.

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