Attorney Keenan Kmiec, a former clerk to Chief Justice John Roberts, recently wrote a column decrying the "[c]omplaints about judicial activism [that] have plagued Supreme Court confirmation hearings for decades." As were co-authors Goodwin Liu and Pamela Karlan at this month's release of Keeping Faith with the Constitution, Kmiec is most concerned with understanding judicial philosophy of President Obama's judicial nominees. However, according to Kmiec, "Empty or ambiguous charges of 'judicial activism' only make things harder."
Understanding a nominee's judicial philosophy is hard work, but it should be the goal of the confirmation process. Amorphous charges of 'judicial activism' score cheap political points, but they have no place in a serious confirmation debate. Let's banish the term or at least use it carefully.