Can the Judiciary Be “Representative”?
Continued Judicial Activism Versus Judicial Restraint The judicial appointments logjam carried over to the new Bush administration in 2001. In the aftermath of the contentious 2000 presidential election, and with the new Senate tied evenly between Democratic and Republican seats, the nominations war escalated over the murky, and politically charged, distinction between judicial activism and restraint. The former describes jurists who stray from the words and “clear” meaning of the Constitution and statutes to impose their own sense of what the law means; the latter indicates a judge’s attempt to construe law strictly, according to its literal denotation or “original intentions” of its framers. Vermont Senator Jim Jeffords’s stunning decision to switch his affiliation from Republican to Independent in May 2001 shifted Senate control, and that of its Judiciary Committee, to the Democrats. Yet the arguments over whether judicially active or restraintist nominees would better represent (in
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