Sen. Sheldon Whitehouse

In a piece for The National Law Journal, Sen. Whitehouse (pictured) writes that for many years the term "judicial activism" has been lobbed by conservatives "so repeatedly that it is now in the common parlance, but without any clear meaning." He continues, "For some, ‘judicial activism' applies to any decision that fails to meet conservatives political purposes, but never to a decision that meets conservative goals, no matter how many acts of Congress it strikes down, how many prior decisions it overturns or how recklessly it strains to decide broad questions of constitutional law."

Sen. Whitehouse notes a number of "red flags" to look for when determining if a court is indeed engaging in judicial activism. Those markers include, a court with low respect for state or federal laws, a court that easily strikes precedents, one that issues strings of 5-4 decisions instead of finding common ground, a court where a "discernable pattern of results" emerges, and a court that easily ignores "rules and tenets of appellate decision-making that have long guided courts of final appeal."

The senator concludes that the Roberts Court's conservative bloc is flying all those red flags.

The five-member conservative majority easily overturns precedent, fails to find common ground, goes well beyond appellate decision-making standards, easily ignores the legislative process, and a discernable pattern has emerged.

Sen. Whitehouse writes:

Corporations have prevailed at striking rates. The cause of social conservatism has made pronounced strides with respect to abortion and gun issues. Simply put, the conservative bloc has established a record that has a distinctive pattern - and, at this stage, it is improbable that it would be coincidence. As Jeff Toobin noted in The New Yorker in May 2009, the leader of this bloc, Chief Justice John Roberts Jr., ‘has served the interests, and reflected the values, of the contemporary Republican Party.'

Sens. Patrick Leahy, chairman of the Senate Judiciary Committee, and Sheldon Whitehouse, chairman of the Judiciary Subcommittee on Administrative Oversight and the Courts, write that months "of obstruction by Senate Republicans" have stymied a vote on Dawn Johnsen's nomination to lead the OLC, noting that Obama nominated her a year ago.

Leahy and Sheldon write:

Johnsen has previously served for five years in OLC. She defended legitimate presidential powers. She produced opinions that conformed to the law, even if they did not advance the president's political interests. She has a proven record of setting aside her personal views to render independent legal opinions rooted in the Constitution and the law. Johnsen's former colleagues have called her the conscience of the office. Walter Dellinger, her former boss at OLC, has said that she ‘will be the best head of the OLC in the history of the office.'

Main Justice notes that after Obama re-nominated Johnsen, an Indiana University law school professor and a former member of the ACS Board of Directors, in January, the Senate committee has continued to delay a vote on the nomination. "The panel is expected to consider her nomination next week," according to Main Justice.