I dont know what a moderate judge is?? I know I have used the term, but only to refer to other peoples' characterizations of the court.? Either you follow the actual Constitution, or you depart from it.? Those that depart from it are activists.? So I guess you could characterize a moderate as semi-activist; or an activist some of the time?? That certainly would have fit O'Connor.
Well, that's a gross simplification if there ever was one.
I actually dont think it is. Well, perhaps from one perspective. Among those that dont interpret according to the Constitution's true meaning there are many philosophies. But either you follow the original true meaning or you dont.
In truth, there are two ways to interpret the constitution, and both are equally valid.? You are either an originalist (you believe in following every letter of the constitution as it is written) or you are a "Living constitutionalist" (you believe in following the spirit of the forefathers words as they apply to todays more modern society).? ?A moderate would be someone who applied both approaches, depending on their opinion of application and it's relevance.
? I actually agree with you, except I dont think the "living Constitution" approach is valid.? It certainly isnt following the Constitution according to how it was understood when it was enacted.? As you can see in many of the opinions they basically make it up as they go along, and then cite previous poorly decided/reasoned cases as precedent for their new actions.? What you end up with is a complete mess.? I think it is comparable to someone who lies, and then forgets their story so they keep lying until they end up in a big mess.? Right now much of the Supreme Court's jurisprudence is a mess because of this.? Furthermore, the whole reason that we have the current mess in the confirmation process is because of the "living Consitution" approach and other activist approaches.? You are right in that a "Moderate" follows one philosophy half of the time, and follows the other philosphy the other half.? I think that is exactly what I was alluding to.
Believing in a living constitution does not make you an activist.? To paint that picture is to politicize and vilify their viewpoint simply because you disagree with it.?
It certainly does.? Of course I think it is the wrong way to go, but you dont have to view the term "activist" negatively to characterize what they are doing properly.? Throwing away historical understanding, going away from the text, and following precedent half the time when it suits your position is clearly activist.? Some people want the court to play this role and others are ignorant of the fact that the court is playing this role.? I prefer policy and law to be dermined by democracy.? But hey, Im just an
originalist.
Ditto with being an originalist: Interpreting in such a manner does not make you a right wing religious zealot.Certainly it does not.? However, the term "activist" is not aimed at just liberals, but also Conservatives.? I would call our current Chief Justice an "activist" in many of his decisions, and surely he is not a liberal.? Likewise, I would call Warren Burger an "activist".
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