To Interpret or Not Interpret: What's Really Behind the Debate Over Activist Judges.

William James in 1897 wrote his famous The Will To Believe. It has been interpreted by many as a defense of religion, which in the late 1800s had come under attack as the onslaught of science began to define the modern world.

But James' purpose was not to defend religion so much as to refute those who refused to acknowledge a deity without proof. Such individuals were referred to as agnostics. He believed that life required of us an action one way or another. "Our passional nature not only lawfully may, but must, decide an option between propositions, whenever it is a genuine option that cannot by its nature be decided on intellectual grounds; for to say, under such circumstances, "do not decide, but leave the question open," is itself a passional decision - just like deciding yes or no - and is attended with the same risk of losing the truth."

In short what James was saying was that ambivalence as a defense to inaction was a denial of a basic tenant of life. The umpire that does not call the ball fair or foul has in fact ruled it fair since in the absence of any sign to the contrary the runner will assume it to be fair, and the fielders, fearing an inaction, will not take it for granted that it is foul.

We are, all of us then, activists in our nature, beholden to certain beliefs, and when called upon to act, do so with conviction of spirit.

The debate over Judge Roberts has centered around what many consider to be a philosophical split between those who want the court to interpret the law versus those who want it making the law. In truth the debate is superfluous. To paraphrase James' whole argument, all judges are by their nature activists. They either believe in one thing or the other, and, as such, shape the vary essence of the law of the land.

And even if, by chance, a genuine "non-activist" judge were appointed to the court what would be the result? To again paraphrase James, an interpretive - hence a non interventionist doctrine - would only serve to validate present rulings. In other words the status quo would remain unchanged.

But that is not what the Right has in mind, for it knows James' argument all too well. What conservatives are looking for are judges who are not only activists, but are beholden to their specific ideals. Arguments that the Supreme Court has gone too far are smoke screens for excuses to roll back civil rights and environmental laws. The debate goes much farther than Roe v. Wade, or whether some kid in California can say the Pledge of Allegiance in class. It is an outright assault on the last forty years of Jurisprudence.

Judge Roberts will likely be confirmed. As such the balance of the Supreme Court will not change much. It will be in the appointment of Judge Sandra Day O'Connor's replacement that the Court will swing. While O'Connor is a conservative, she is considered a moderate and has sided with the centrists of the Court on major issues. If her replacement is of the ilk of Judge Roberts the Court will swing decidedly to the Right and will, in all likelihood, remain that way for a good number of years.

Sweet dreams!