Part of the problem in the debate over judicial activism is the belief on the part of many that judges possess superior qualities from the rest of the population. Judges weigh competing facts and interpret the law and come to decisions. They are humans who possess the same traits of bias, envy, greed, self importance and self loathing that the rest of us have in varying degrees. They bring these traits to the table every time they arrive at a decision. Until we can design robots intelligent enough to replace humans on the judiciary, this will continue to be the case.
But to many, judges are superior beings who somehow possess the ability to derive “the truth”. It is so if a judge says it’s so. The Schiavo case was a perfect example of this. As a case in point, Ann Althouse (who, by the way, thought that Schumer did a good job of defending his opposition to the filibuster on Meet the Press last weekend) had this to say about recent comments from Justice Kennedy:
But I love the cool, measured response that models judicial demeanor. It helps people see that judges function in a different way from politicians, even though the politicians are pushing the proposition that they don’t.
Apparently judges don’t have agendas or hold political views, they are above the political fray. Justice R2 D2 in the year 2199 maybe, but today our judges are still human.