pelican: "Please define exactly what is an activist Judge?"

I have no idea what KMB means by it, but it does have a reasonably well defined meaning. The job of a judge is to interpret the law. But they try to avoid doing that unless absolutely necessary. Instead, they first look at the situation before them and try to see if it looks the same as any other situation brought before a court earlier. If it is they make the same decision as the previous court did. An activist judge is one that doesn't do that, instead they deliberately and knowingly makes a different decision to a previous court.

An example. Many years ago a copyright case, Telstra v Desktop Marketing, was brought before the High Court of Australia. Desktop Marketing was getting the white pages typed into a computer using cheap labour in the Philippines, then selling a CD with the info. Telstra wanted to stop them, and alleged copyright infringement. Now the law says facts aren't copyrightable, but evidently the High Court sympathised with Telstra and so decided the effort that Telstra put into assembling all the names in one place made the whitepages copyrightable (after all it is the effort that mattered, or so they reasoned), and so Desktop Marketing lost.

Every Tom, Dick and Harry decided to try and make a buck off this, so thereafter the owners of Bus & Train Timetables, TV Guides, Cinema Guides, Sea Lane Buoy positions, AFL tables - you name it, threaten to sue anybody who made copies of their stuff, even if people were just giving it away for the public good. This made a lot of people, particularly those who wanted to run public football sweepstakes, very sad.

(cont'd)

(cont'd)

This week, the High Court ruled on another copyright case that had been put before it - IceTV vs Channel 9. IceTV want to copy Channel 9's TV guide, something that was clearly illegal given the previous High Court decision. But the High Court rules in favour of IceTV this time, and what's more in their comments said something along the lines of "By gee, we stuffed up that Telstra vs Desktop Marketing ruling, didn't we? Sorry about that." Well perhaps I exaggerate a bit, but nonetheless the word on the legal street is the High Court has changed their views on what is copyrightable, and guides, timetables and the like aren't included.

Thus the Australian High court deliberately didn't follow previous court cases, and thus could be said to be activist. Or maybe they just wanted to give their own parting gesture to Sol. Who knows?

KMB is of course full of it when he says "activist judges are by definition progressive". For example, activist judges have been known to expand a woman's right to have an abortion, and at other times to reduce it. It cuts both ways. Usually they cite "changing community attitudes" when they do this.

Dear KMB,

You said, "...should unelected, unaccountable,
affirmative action judges be given carte blanche
to legislate from the bench?"

Supreme Court judges are appointed after a very
rigorous scrutinisation process. Sonia Sotomayor
has been nominated - her appointment has yet to
be approved. Staffers on the Judiciary panel have
presented a 10 page questionaire - where the judge
will have to answer in advance of the public
session she will undergo with senators.

She will have to divulge personal, financial,
employment, information. She will have to provide
copies of all of her writings, speeches, interviews,
and opinions. She will be tested thoroughly.
And only then will the decision be made on her
appointment to the Supreme Court.

I don't understand quite frankly to what you're
objecting. She's a New York born daughter of Puerto
Rican parents. She's 54, a veteran of the Federal
Bench, who was reared in a Bronx housing project, and
attended Princeton (BA). Her Law Degree is from
Yale. She's reached the highest echelons of the
legal profession and she's made it quite clear,
and I quote, "I don't believe we should bend the
Constitution under any circumstance. It says what it
says. We should do honour to it."

To what exactly do you object - regarding the
nomination of this judge to the Supreme Court?

Foxy,

You'll notice that controversial decisions are usually split along ideological lines.
This is because there are two types of judges:
The constructionists who take a strict view of the constitution and the law, interpreting it narrowly.
The activists who read into it whatever they please according to their politics.
Sotomayor is one of the latter.
You can read about a couple of her pottier decisions at these links:

http://www.judicialwatch.org/news/2009/may/judicial-watch-statement-obama-s-nomination-judge-sonia-sotomayor-united-states-suprem

http://www.discoverthenetworks.org/individualProfile.asp?indid=2396

Generally, Democrat presidents appoint activists because they can be relied upon to make judgements effecting radical social change. It enables the Democrats to fast track these changes by bypassing the electorate while washing their hands of any responsibility.
The "very rigorous scrutinisation process" is done along party lines so that as long as Sotomayor doesn't have any skeletons in her closet the majority Democrats will approve her nomination.
Actually, as she's a Democrat, it doesn't matter a damn if she has any skeletons in her closet.

Case in point, Timothy Geithner.
A proven serial tax cheat, he was nevertheless nominated by Obama and rubberstamped by the Democrats to head the Treasury, which encompasses the Internal Revenue Service.
You heard it right.
The head of the US tax department is a tax cheat.
But he's a democrat and that was good enough to pass the so-called screening process.

http://www.washingtonpost.com/wp-dyn/content/article/2009/01/18/AR2009011802070.html

Sotomayor is a shoo-in.
She'll pay lip service to the constitution and then she'll interpret it according to her whim, like all good judicial activists.

rstuart

The copyright case is an interesting one. I have some sympathy (surprisingly) for Telstra in the first case given they have financially invested in gathering all that information in one place, maintaining and marketing it to the consumer.

Then of course there is the risk of the law being interpreted or extended to support the ridiculous. Often new precedents can be set merely because one side is more gifted than the other rather than the outcome always being what might be considered universally 'fair'.

For the law to change perhaps we do need the odd activist Judge, but from my admittedley limited understanding of the law, precedence can come from international experiences as well as local suggesting that there is a wide source from which to draw an argument. I believe there are cases made using precedence from Canada and Britain. Activist Judges may act more or less Conservatively than the various interest groups would like.

Jesus was an activist (as the story goes) whose ways were seen as progressive or revolutionary (hence dangerous for the status quo) against the Romans.

I was watching a bit of an ABC documentary tonight about the disagreement between the Jews and the Christians over money-lending and the Christians fight against the immoral practice of usury - demanding interest for lending money. Nowadays paying interest on a loan is seen as very normal. If another well doer wished to reverse this practice I am sure it would be seen as activist or progressive or even worse the old reds under the beds would come out in fear of any change to the norm no matter the historical origins.

Using your definition we may at times need activist Judges to ensure that the law is never so set in concrete that an unjust precedent can be changed to suit changing circumstances such as the unequal treatment of gay couples under the law.

There is no reason why the Judge in the case that KMB outlines would not be as fair-minded as any other Judge on the Bench.

Judges are usually 'guild members'.
They tend to display certain attributes that most would abhor.

They seem to display neither guilt nor remorse after causing their victims immense detriment.
They rely upon the word of others and rationalise their decisions based upon what comes to them as hearsay.

They pretend not to accept hearsay as such but ultimately what they claim is evidence is in fact hearsay at the point of delivery to them or a jury in court.

As regards racist.
Skin colour doesn't count.
One way or another it is the colour of money that influences the outcome.
Why pretend otherwise.