Conservatives like to insist that their judges are strict constructionists, giving the Constitution and statutes their precise meaning and no more, while judges like Ms. Sotomayor are activists. But there is no magic right way to interpret terms like 'free speech' or 'due process' - or potato chip.
Al Gore seems to have found a great political ploy: Picking up whatever issue he is most vulnerable on and championing the cause. Perhaps he will start to champion perjury statutes and obstruction of justice.
How exactly the obstruction-of-justice statutes interact with the president's broad powers to supervise the executive branch under Article II of the Constitution is a genuinely difficult question.
There is no doubt in my mind that Article II limits to a considerable degree the application of the obstruction statutes to the president when he is acting in his capacity as chief law-enforcement officer of the country.
A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.
Private-sector firms are increasingly active in the prison industry and they and the militantly unionized correctional officers, almost all unskilled labor, constantly lead public demands for more criminal statutes and more draconian penalties.
Popularity makes no law invulnerable to invalidation. Americans accept judicial supervision of their democracy - judicial review of popular but possibly unconstitutional statutes - because they know that if the Constitution is truly to constitute the nation, it must trump some majority preferences.
The equality among all members of the League, which is provided in the statutes giving each state only one vote, cannot of course abolish the actual material inequality of the powers concerned.
I've never been impressed with bureaucratic tradition. I don't like it when the parties come to me and say, 'This is the way that it's always done, judge.' I never found anything in the oath I took or the statutes I was asked to look at that said, 'Judge, stop thinking, because this is the way it was done before.'
The federal election statutes are primarily meant to be civil. That doesn't mean that you can't have a criminal violation of the FEC provisions, but that's just my personal opinion.
