The Los Angeles Times today does some nice number-crunching over judges on federal courts. Contrary to much “liberal activist judge” mythology, “ninety-four of the 162 active judges now on the U.S. Court of Appeals were chosen by Republican presidents.” And Republican appointees have a clear majority on 10 of the 13 circuit courts. So George W. Bush’s whining over the fact that a small handful of his judges are being blocked—and mostly just those who, like William G. Myers III, are wholly unqualified for the bench—sounds awfully petulant. Likewise, complaints by Bill Frist and Tom DeLay that there’s an out of control liberal judiciary in America just sound silly.
That said, there’s still a certain logic to all these complaints. Most of the Republican judges now on the circuit courts, after all, are merely conservative—by and large exerting a good deal of judicial restraint. By contrast, as Jeffrey Rosen nicely described over the weekend, a growing number of conservatives—including and up to Dick Cheney in the White House—actually want to place strong conservative activists on the court, people who, contrary to “mere conservatives” like Antonin Scalia, would be actively willing to overturn law after law in order to get legal doctrine back to where it was before the New Deal. The sort of judges who will strike down labor and environmental protections, scale back minimum-wage and maximum-hour laws, and take away Congress’ ability to regulate commerce. Bill Pryor, one of the judges being held up by Democratic filibuster, likely falls under this category. ”Bill Pryor is the key to this puzzle; there’s nobody like him,” says Michael Greve, one of the foremost defenders of the so-called “Constitution in Exile.”
Now obviously when Bill Frist rails against “activist judges,” he’s not intentionally referring about this sort of thing, even though there’s nothing more activist than trying to overturn 70 years worth of legal precedent. No, his barking is directed at liberals, or judges whose decisions he disagrees with. But if, as the Los Angeles Times notes, the current judges simply aren’t all that liberal, and if, as Jeffrey Rosen points out, the current judges aren’t all that activist compared to what the president is proposing, well, the complaints against the judiciary start to descend into pure incoherence.