No, *you're* an activist

In an op-ed in USA Today, Jeff Sessions wrote that he would not vote to confirm Sonia Sotomayor because he does not believe she has "the deep-rooted convictions necessary to resist the siren call of judicial activism."

He cited three cases:
1) Ricci v. DeStefano (the New Haven firefighters case)
2) Maloney v. Cuomo (the nunchaku case)
3) Didden v. Port Chester, an eminent domain case in Which Port Chester, N.Y. established a redevelopment area and essentially gave the developer free rein to condemn property within that area. According to Linda Greenhouse's story at the time, "the redevelopment plan, adopted by Port Chester in 1999, envisioned a retail area that would include a drugstore. In 2002, the developer, G & S Port Chester LLC, announced that a Walgreens store would be part of the project. But Bart Didden, the owner of the parcel where the store was to sit, had by that time separately entered into a lease with a competing drugstore chain, CVS."

The negotiations between Didden and the developer failed, and Port Chester sided with the developer and took the land by eminent domain.

Sotomayor was part of a three-judge panel that ruled in favor of Port Chester.

I am not taking a stance on the case. I *am* saying that this is not, by any definition, judicial activism. Neither is the New Haven firefighter case. Judicial activism is deciding a case contrary to the plain meaning of the Constitution in order to promote the judge's political/policy preferences, according to a book by Kermit Roosevelt.

The Didden decision was based on the property owner’s failure to file his lawsuit within the three-year statute of limitations, according to the NYT story. The decision also cited Kelo, which defined "public use" very broadly. (so does the Fifth Amendment)

The Supreme Court, for that matter, declined to take the case in 2007. If the decision were really a striking example of irresponsible judicial activism, Sessions doesn't think they'd be able to at least get Roberts, Scalia, Alito and Thomas on board?

And the Ricci decision adheres to precedent set by a 1993 decision by *gasp* Scalia. In St. Mary's Honor Center v. Hicks, Scalia wrote for the majority that once the plaintiff proves there was no good reason for his firing or lack of promotion, the employer needs only to claim there was a good reason for the personnel decision, according to a story in Slate. In other words, the burden of proof is on the plaintiff, not the defendant. (And New Haven threw out the test in order to determine whether it was discriminatory against the black and Hispanic firefighters -- a valid defense under the 1993 precedent)

By overturning the Appeals Court decision, it was the five-justice majority on the Supreme Court that engaged in judicial activism -- not the lower courts.

My very long-winded point that I'm sure only Lisa read to the end of: Can someone please explain to Jeff Sessions et al that the definition of judicial activism is NOT "anything Jeff Sessions and his friends do not agree with"??