Emmett Tyrrell
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WASHINGTON, D.C. -- Drat. The battle royal I predicted last week is off in the U.S. Senate. The battle was to be fought between the Democrats and the Republicans over what conservatives call "the constitutional option" and liberals call "the nuclear option." That it was reported throughout the media as "the nuclear option" is still more evidence that the media are liberal. Obviously, the argument over whether or not the media are liberal is another of America's unnecessary debates.

 The argument over whether the president's judicial nominees are "activist" is an unnecessary debate, too. What distinguishes the president's nominees from what in the recent past have been the Democrats' nominees is that the president's nominees pledge that their judgments will be restrained by written law, and the Democrats' nominees make no such pledge. Obviously the judicial nominee who pledges to be restrained by the law cannot possibly be an "activist." The Democrats' nominees can be as "activist" as they want.

 The very term "activist" historically was first used in the legal sense to apply to liberal judges, mostly Democrats. So far from judicial restraint have liberal judges wandered that now many take into account not only the Constitution, but also social trends. In fact, the latest fashion among these judges is to take into account international law. Recently, Justice Anthony Kennedy, in his majority opinion abolishing the juvenile death penalty, invoked the "overwhelming weight of international opinion." Now that is activism compounded with cosmopolitanism.

 Again, the debate over whether the president's nominees are activists is clearly unnecessary. Another way of putting it is that the debate is dishonest. The real "activist" judges are the liberals. Truth be known, Democrats have usually had no complaint with activist judges. Democrats are so weak in the legislatures of America that they can no longer make law. Consequently, they rely on their activist judges to make law for them. But if the debate over the term activist is unnecessary, this is not to say that the struggle over the president's nominees is unnecessary. This week, the White House and Senate Majority Leader Bill Frist blinked during one of the most important political battles of our time. It is a battle to decide who makes the law: legislators or unelected, unaccountable judges.

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Emmett Tyrrell

R. Emmett Tyrrell Jr. is founder and editor in chief of The American Spectator and co-author of Madame Hillary: The Dark Road to the White House.
 
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