Opportunity to trap these rethugs complaining about "judicial activism"

[cascadiance]

I'd like to propose that the Dems use this supreme court nomination as an opportunity into forcing the selection process be a "Hobson's choice" for the Rethuglicans...

So many times I hear them complaining that they want someone that interprets the constitution and doesn't use "judicial activism" in making court decisions. Many of us here would like to force them to either back off of that sweeping statement or at least admit that they only want judicial activism when it favors *their* agenda. Then it will be apparent to the public when they are trying to pick a partisan judge or one that is truely principled.

The biggest example of judicial activism I think of is when a court reporter who had conflict of interest ties to the railroad industry wrote a "fabricated" head note for the case of Santa Clara vs. Southern Pacific Railroad back in the 1800's. This headnote stated that this case basically gave corporations the rights of persons or "corporate personhood". Unfortunately, as Thom Hartmann cites in his books and other publications, if you read the actual court documents instead of the "summary" head note (which most reviewing this court decision did for rendering subsequent court decisions), the real court notes did nothing of this sort. There was nowhere in the actual court case notes that made any kind of decision to give corporations the rights of persons. Therefore this one head note basically created law for many such subsequent court decisions that gives the corporate oligarchy the stranglehold it has over us today.

The supreme court has been a court that Hartmann points out rarely hears a case that it doesn't rule upon. However, the last case that they didn't rule upon was in the 70's. This was a case where the Rhenquist led court were presented with the details of the Santa Clara case on a newer case involving corporate personhood, and were basically faced with the decision of either:

a) supporting this fallacious miscarriage of justice by the judiciary, which would make things worse in the future, when they recognize it was wrong.
b) overturn the notion of corporate personhood, and invalidate all of the court decisions made based upon this head note, potentially throwing us into economic turmoil to sort things out.
c) Punt and walk away from it!

They picked c, which they did after agonizing over this for a lot longer than they usually would.

I propose our senators ask a potential nominee which of these choices he would pick if he were faced with making the decision on a newer such case coming before him/her.

The Hobson's choice is that picking a or c would render any argument of theirs of not supporting judicial activism as being flawed and that doing so would only be for cases that "they agree with". If they picked b, then they could be consistent with their argument against judicial activism from the bench, but then we could have them on file as committed to overturning this law and potentially influencing the court (even if they don't pick such a justice), into doing just that when they are asked to hear such a case. Them picking b (and someone acting on it as such) would free us from the coming corporate feudalism, a potential great day in our nation's history.

Of course, the Supremes might try to avoid hearing any such cases altogether, but still, the more this is talked about, hopefully more pressure will be put on the supremes to overturn Santa Clara if and when they do hear such a case.

The problem is though, unless we pressure the Dems to do this, I'm sure that many of them, especially the DLC-beholden ones will avoid being the focal point of bringing this up to upset their corporate donor friends. But if we pressure them enough to do so, who knows!

If you force this Hobson's choice, the Rethugs are guaranteed to lose one way or the other, and we're guaranteed to win one way or the other.