06/11/2010 05:12 am ET | Updated May 25, 2011

Senator Hatch's Whale Warnings Are All Blubber

Senator Orrin Hatch warns for the thousandth time that: "There's going to be a whale of a fight if he (President Obama) appoints an activist to the court." He should just have cards printed up and mailed out at nomination time saying: We don't want judges who are "activists, soft on crime, legislating from the bench or thwarting the will of the majority", and more recently (the Sotomayor nomination), we certainly do not want judges with "empathy" for the downtrodden, minorities or the poor. It is so tired.

What Senator Hatch and conservatives do not want are judges who render decisions with which they do not agree. Those judges are the "activists" to be feared. The Roberts Court for the first time in the history of the republic has ruled that every citizen has a right to own a gun under the 2nd Amendment and every corporation has the same free speech rights as individuals under the 1st Amendment. No cries of activism or demands for impeachment arose from the right.

The Rehnquist Court either legislated from the bench or thwarted the will of the majority by declaring 33 acts of Congress unconstitutional. I do not debate here whether those decisions were right or wrong, but rather suggest that judges have the duty to overturn legislation which they find to be unconstitutional. Rejecting the will of the majority is mandated in some instances after giving due deference to the actions of duly elected representatives.

Soft on crime simply means upholding the constitutional rights of those accused or convicted of crimes.

Conservatives point to the Warren Court's decision in Brown v. Board of Education as one of the quintessential liberal, activist rulings and it may well be. But if I had to choose between liberal activism in integrating the schools of this country and conservative activism in allowing corporate power to influence our elections, I like my activism better than their's.