ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

Today, the Justice Department wrote a letter to Senators Reid and Frist, protesting recent mischaracterizations by various Senators of what Attorney General Gonzales once said about "judicial activism" in a case five years ago, when Gonzales served on the Texas Supreme Court with Justice Owen.

In the letter today, the Justice Department reiterated Gonzales's previous statements, such as these:

My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht. It was actually focused at me.

and

[T]his statement was not a rebuke of the dissenting justices, such as Justice Owen.

U.S. Senators are not the only ones who have been misstating the facts about this incident. Michael Graczyk of Associated Press did likewise in an article this week:

Attorney General Alberto Gonzales, who also was on the Texas court then, criticized the dissenters for trying to insert personal ideologies and take the law beyond what was written by the state legislature.

"To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism,'' Gonzales wrote in the 2000 opinion.

Gonzales has said since that he wasn't criticizing Owen, but Democrats continue to cite what he wrote five years ago in arguing their case against her.

Graczyk is incorrect to assert that Gonzales accused the dissenters of trying to insert personal ideologies, and this is clear for at least three separate reasons. First, Gonzales wrote (in the very same case) that each of the dissenters “agrees that the duty of a judge is to follow the law as written by the legislature. Second, the sentence about judicial activism says that, "To construe the ... Act ... narrowly ... would be ... unconscionable," and so this sentence was not directed against the dissenters, and was not an accusation that anyone had misconstrued the Act. And third, of course, Gonzales has repeatedly explained all of this.

Associated Press really has no excuse for this error. Neither do Senators.

UPDATE: Howard Bashman says this:

If an appellate judge writes in an opinion that it would be an act of judicial activism to hold X, is not the appellate judge accusing dissenters who would have held X of seeking to engage in judicial activism? Or is the appellate judge merely saying that for him to have held X would have been judicial activism, but for his colleagues in dissent to have held X was perfectly reasonable and not an act of judicial activism? It seems that to ask these questions is to answer them.

However, Gonzales did not accuse any dissenters of attempting to hold that bypasses are eliminated. Likewise, Gonzales did not accuse any dissenters of attempting to hold that hurdles exist that are not to be found in the words of the statute.