Questions for Obama.

[FromWayDowntown]

sold as a dismissal, but it's treated as a lifetime conviction.

http://www.deferredadjudication.com/...ed_def_new.htm

Not true in either sense; and hardly uncons utional. The offender is told, when granted deferred adjudication that one term of that punishment (and it is a punishment) is the assurance that conviction for failing to comply with the program -- and the programs have pretty basic obligations -- will result in revocation of the d.a. and enforcement of the sentence that should have been imposed. The ball is totally in the offender's court at that point -- do what you've obligated yourself to do and you'll stay out of jail and have the charge deleted from your record after a reasonable time for compliance; get busted doing something you're not supposed to do and you'll go to jail.

I'm not sure why that would be an uncons utional "punishment" since it gives the offender nearly-complete autonomy to decide whether he or she will go to jail. Likewise, the fact that the offender was given deferred adjudication never comes up again unless he or she gets into trouble again, and then it is admissible only for the sake of assessing punishment, which necessarily means the offender has been convicted of committing a crime and is, in a very real sense, a recidivist.

On top of that, a judge who refuses to grant deferred adjudication would be violating an act of the Texas Legislature and would, in a very real sense, be the sort of activist judge that should be decried.

[FromWayDowntown]

They are not ridiculous. They are valid, maybe hypocritical, but valid IMO.

Hypocrisy is not ridiculous?

you will not hear that argument from liberals, because they agree with that type of judiciary.

There you go again with your assumptions. Perhaps you want to believe that; I'm not sure that your assumption, however, is entirely true. Take, for instance, the Supreme Court of Texas, which is arguably exceeding its cons utional jurisdiction to make far-reaching determinations regarding some fundamental matters of due process -- particularly making it difficult for juries to come to sustainable conclusions in tort cases that benefit plaintiffs. You may not know it, but liberals in Texas regularly complain of the activism of that conservative court. So, I'd dispute your conclusion that liberals prefer activist courts.

conservatives profess not to agree, so it would be nice to hear liberals hold them accountable. Instead, liberals are content with conservatives getting away with it as long as liberals get to do the same thing. The only people fighting for change are some conservatives, as one-sided as they may be.

Nonsense. Utter and total nonsense. Do you just get your information from talk radio and conservative news outlets? That's an honestly curious question, given that your criticisms of liberals in this regard seems only to track the rhetoric that those sources spit out.

[Cry Havoc]

Hmmm.

Round 3. Ding.

[George Gervin's Afro]

I wish I had my way with the English language the way Fromwaydowntown does. He always is able to put my thoughts in a coherent and logical format. My point to 2cents was simply, don't cry about something that your side is guilty of. The rightwongers who complain about activists justices are silent when it comes to conservative activists.. In fact I would bet that the same people who are crying about this were exstatic at Alitos and Roberts nominations to the SC. These guys wear their conservatism on their sleeves and aren't shy about people knowing it.

[2centsworth]

Hypocrisy is not ridiculous?

yes it is, but we were talking about judicial activism weren't we?

There you go again with your assumptions. Perhaps you want to believe that; I'm not sure that your assumption, however, is entirely true. Take, for instance, the Supreme Court of Texas, which is arguably exceeding its cons utional jurisdiction to make far-reaching determinations regarding some fundamental matters of due process -- particularly making it difficult for juries to come to sustainable conclusions in tort cases that benefit plaintiffs. You may not know it, but liberals in Texas regularly complain of the activism of that conservative court. So, I'd dispute your conclusion that liberals prefer activist courts.

we are talking about Obama aren't we? Obama is in favor of continued activism IMO.

btw, please start a thread and give me concrete examples of judicial activism in Texas. I will be one of your loudest supporters.

Nonsense. Utter and total nonsense. Do you just get your information from talk radio and conservative news outlets? That's an honestly curious question, given that your criticisms of liberals in this regard seems only to track the rhetoric that those sources spit out.

some, but I believe i've demonstrated it's not my only source. now one question for you, is judicial activism a bad thing?

[2centsworth]

I wish I had my way with the English language the way Fromwaydowntown does. He always is able to put my thoughts in a coherent and logical format. My point to 2cents was simply, don't cry about something that your side is guilty of. The rightwongers who complain about activists justices are silent when it comes to conservative activists.. In fact I would bet that the same people who are crying about this were exstatic at Alitos and Roberts nominations to the SC. These guys wear their conservatism on their sleeves and aren't shy about people knowing it.

You need to first come with coherent thoughts and facts to somewhat measure up. Your sincerely Joe Conservative post don't help you. Btw, please give examples of Alitos and Robert's activism.

[JoeChalupa]

I'm a free thinking American. To with all the labels.

[2centsworth]

I'm a free thinking American. To with all the labels.

we are talking about judicial activism.

[Oh, Gee!!]

we are talking about judicial activism.

and Joe doesn't like the "Judicial Activist" label

[JoeChalupa]

I'm for judicial justice.

[2centsworth]

I'm for judicial justice.

another label?

see the I don't like labels is a stupid game. When discussing a topic labeling is neccessary in order to clarify points.

now, what does justice mean to you?

[JoeChalupa]

another label?

see the I don't like labels is a stupid game. When discussing a topic labeling is neccessary in order to clarify points.

now, what does justice mean to you?

Fairness? It is up to interpretation but it is not always clear. I don't think labeling is necessary to clarify points. I know conservatives who have liberal views and vice-versa.

[FromWayDowntown]

yes it is, but we were talking about judicial activism weren't we?

And hypocrisy in discussing judicial activism isn't ridiculous?

we are talking about Obama aren't we? Obama is in favor of continued activism IMO.

I'd love to have a source for that conclusion. Really.

btw, please start a thread and give me concrete examples of judicial activism in Texas. I will be one of your loudest supporters.

It's not really worth my time -- shooting down the hypocrisy of those who complain about judicial activism is more enjoyable to me than complaining about judicial activism.

some, but I believe i've demonstrated it's not my only source.

Demonstrated? How, exactly? You just recite the same hot rhetoric that media windbags offer up and rely on the same old cliched criticisms of those you disagree with, simply concluding that "most of them would agree with this thing that I disagree with" (to paraphrase). I'll apologize when you can show me that there's something other than rehashed right-wing saws to inform your opinions about who supports judicial activism.

now one question for you, is judicial activism a bad thing?

Honestly, I avoid categorical statements like that because what cons utes judicial activism is never quite clear to me. Is the Supreme Court eschewing stare decisis and holding that Separate but Equal violates cons utional guarantees of equal protection a function of activism? If so, then that's an example of judicial activism being a good thing. Is the recognition that the Cons ution functionally includes a right to privacy a matter of activism? If so, then that's another example of judicial activism being beneficial to society.

I'm also never clear on what exactly cons utes "activism" when it comes to novel cons utional questions (the area where activism seems to worry most conservatives, in my estimation).

For instance, is the Massachusetts Supreme Court declaring that state discrimination against same-sex marriages violates cons utional guarantees when the state has enacted no law on the subject an example of "activism"? I would say that the Court was asked to pass on a legal question that has significant moral ramifications, but one that is not resolved textually by cons ution or statute -- in that instance, our society has accorded the courts with the obligation to resolve those questions, even if the result is unpopular. If the state supreme court declares in that context that prohibiting same-sex marriage is uncons utional, I wouldn't characterize that as activism; it would be a function that is at the heart of what courts do. I don't think the fact that the courts reach a conclusion that is unpopular is evidence of activism, either. I think, in some ways, reaching that conclusion is the converse activism if the law supports the unpopular result; courts shouldn't be looking to recent polling data to determine what the law does or does not say. If the court's conclusion is unpopular, it is for the legislature to change the law, or for the People to amend the cons ution.

Do I think it's a good thing for courts to ignore existing law in reaching conclusions? Sometimes, but rarely. Do I think courts that make decisions that must be guided by an interpretation of the law that might prove to be unpopular are activist courts? Absolutely not.

[JoeChalupa]

I concur.

[2centsworth]

And hypocrisy in discussing judicial activism isn't ridiculous?

you are talking about two entirely different subjects. Are you calling me the hypocrit after you admitted I agreed with you on conservative activism? If I'm not the hypocrit, and then focus on the topic at hand.

I'd love to have a source for that conclusion. Really.

He belives the cons ution is a living do ent.

It's not really worth my time -- shooting down the hypocrisy of those who complain about judicial activism is more enjoyable to me than complaining about judicial activism.

shooting down and otherwise legitamate subject is more enjoyable to you?

Demonstrated? How, exactly? You just recite the same hot rhetoric that media windbags

media windbags? I see you're above the fray.

offer up and rely on the same old cliched criticisms of those you disagree with, simply concluding that "most of them would agree with this thing that I disagree with" (to paraphrase). I'll apologize when you can show me that there's something other than rehashed right-wing saws to inform your opinions about who supports judicial activism.

Did i not include a link on conservative judicial activism earlier? Did I not agree with you earlier? the stereotyping is coming from you.

Honestly, I avoid categorical statements like that because what cons utes judicial activism is never quite clear to me. Is the Supreme Court eschewing stare decisis and holding that Separate but Equal violates cons utional guarantees of equal protection a function of activism? If so, then that's an example of judicial activism being a good thing. Is the recognition that the Cons ution functionally includes a right to privacy a matter of activism? If so, then that's another example of judicial activism being beneficial to society.

I'm also never clear on what exactly cons utes "activism" when it comes to novel cons utional questions (the area where activism seems to worry most conservatives, in my estimation).

For instance, is the Massachusetts Supreme Court declaring that state discrimination against same-sex marriages violates cons utional guarantees when the state has enacted no law on the subject an example of "activism"? I would say that the Court was asked to pass on a legal question that has significant moral ramifications, but one that is not resolved textually by cons ution or statute -- in that instance, our society has accorded the courts with the obligation to resolve those questions, even if the result is unpopular. If the state supreme court declares in that context that prohibiting same-sex marriage is uncons utional, I wouldn't characterize that as activism; it would be a function that is at the heart of what courts do. I don't think the fact that the courts reach a conclusion that is unpopular is evidence of activism, either. I think, in some ways, reaching that conclusion is the converse activism if the law supports the unpopular result; courts shouldn't be looking to recent polling data to determine what the law does or does not say. If the court's conclusion is unpopular, it is for the legislature to change the law, or for the People to amend the cons ution.

Do I think it's a good thing for courts to ignore existing law in reaching conclusions? Sometimes, but rarely. Do I think courts that make decisions that must be guided by an interpretation of the law that might prove to be unpopular are activist courts? Absolutely not.

finally some substance.

[2centsworth]

I concur.

I thought you were a person that thought for yourself? I concur is coping out.

[FromWayDowntown]

you are talking about two entirely different subjects. Are you calling me the hypocrit after you admitted I agreed with you on conservative activism? If I'm not the hypocrit, and then focus on the topic at hand.

I'm not calling you anything. I'm saying that conservatives who claim the high ground in debates about judicial activism are hypocrites. I'm also saying that either side believing itself to be superior on issues of activism is ridiculous. How any of that implicates you or your beliefs is entirely a question of your insecurities -- it's certainly not a matter of my beliefs or rhetoric.

He belives the cons ution is a living do ent.

So, only textualists are non-activists? That's an awfully broad categorization.

shooting down and otherwise legitamate subject is more enjoyable to you?

Pointing out the senselessness of the judicial activism debate strikes me as a better use of my time than ing and moaning about perceived activism. I say that both because I would dispute that most instances of claimed activism aren't activism at all, but unhappiness with a particular result (which is basically sore loser-ness) and because there's no real point in arguing that one side is better than the other when it comes to real instances of activism.

media windbags? I see you're above the fray.

I see that you didn't provide me with any reason to think that your opinions are sourced from anything other than those who bring their particular political bents to calling things activist or not.

Did i not include a link on conservative judicial activism earlier? Did I not agree with you earlier? the stereotyping is coming from you.

Nonsense. The fact that we agree that both sides are frought with activists doesn't mean that your rhetoric is anything other than a parroting of popular conservative opinion on this subject.

finally some substance.

Notably met by a lack of anything resembling it.

[Cry Havoc]

media windbags? I see you're above the fray.

Are you serious? Do you really claim the media at-large is worth giving merit or precedent to, especially when you have failed to cite any sources? I could find a media source that agrees with just about any position I want. It does not bolster your argument when you shoehorn the segments of the commercially-driven hosts that agree with you to show that you have opinion on your side.

finally some substance.

Far more than you've brought. Espousing talk show pundits who intentionally state controversial positions is a waste of time for all involved. Care to share any conclusions you've come to on your own, or should I just quote Matt Damon from Good Will Hunting and be done with you?

[JoeChalupa]

I thought you were a person that thought for yourself? I concur is coping out.

So agreeing with someone is a cop out? I read the post.,..thought about it...and I concurred. Is that so hard to comprehend?

[2centsworth]

I'm not calling you anything. I'm saying that conservatives who claim the high ground in debates about judicial activism are hypocrites. I'm also saying that either side believing itself to be superior on issues of activism is ridiculous. How any of that implicates you or your beliefs is entirely a question of your insecurities -- it's certainly not a matter of my beliefs or rhetoric.

asking for clarity is a question of my insecurities .

So, only textualists are non-activists? That's an awfully broad categorization.

That would be my standard.[/quote]

broad? making moral decisions from the bench is broad. Question of morality should be made by voters.

Pointing out the senselessness of the judicial activism debate strikes me as a better use of my time than ing and moaning about perceived activism. I say that both because I would dispute that most instances of claimed activism aren't activism at all, but unhappiness with a particular result (which is basically sore loser-ness) and because there's no real point in arguing that one side is better than the other when it comes to real instances of activism.

Here's an example, same sex marriages. Why are judges better equipped to judge what is moral rather than what is legal?

I see that you didn't provide me with any reason to think that your opinions are sourced from anything other than those who bring their particular political bents to calling things activist or not.

http://www.law.cornell.edu/supct/html/03-633.ZS.html

Nonsense. The fact that we agree that both sides are frought with activists doesn't mean that your rhetoric is anything other than a parroting of popular conservative opinion on this subject.

you just said activism doesn't exist, but now it does, make up your mind.



Notably met by a lack of anything resembling it.[/quote]

[FromWayDowntown]

asking for clarity is a question of my insecurities .

You assuming that I'm quarreling with you is a question of your insecurities.

That would be my standard.

So the entire concept of judicial review, with which every judge in the nation agrees but has no textual cons utional support, is evidence of activism and implicates every sitting judge across the nation. Yep -- not too broad there.

broad? making moral decisions from the bench is broad. Question of morality should be made by voters.

Sure, but what happens when the voters haven't yet given an answer to that question? Are the judges who are forced to make the legal determinations that have moral ramifications activists? What if the legal outcome comports with your sense of morality? Is that activism?

Furthermore, by resorting to the voice of the voter, I assume that you're talking about both cons utional amendments and legislatively-enacted statutes. And taking my assumption as true for the moment, would your argument be that a legislatively-enacted statute can never be overturned as uncons utional and that the majority's viewpoint should always hold on matters that you deem to implicate moral decision-making? If so, would you consider it activism for a court to strike down a law prohibiting interracial marraige? Or to strike down a law that categorically prohibits adults from purchasing things like contraceptives? Do you really believe that the morality of the majority should be controlling as to all of society?

Here's an example, same sex marriages. Why are judges better equipped to judge what is moral rather than what is legal?

I'd argue -- as I have before -- that the guarantee of equal protection of the law in a fundamental matter like marriage isn't much of a guarantee if it can be deprived to people based on the fact that they wish to marry someone of the same gender. That's not an activist viewpoint in my mind, it's completely consistent with a reasonable understanding of the function of the equal protection clause of the Cons ution. It certainly runs afoul of certain moral choices that might be made by the majority of society, but I'm not sure that the majority should be able to enforce its moral will upon all of society. That a court sees a prohibition on same-sex marriages as contrary to the equal protection clause is not, in my mind, an act of activism; it's precisely the sort of thing that judges are called upon to do regularly as a function of engaging in judicial review of statutory law (where such law actually exists).

Is your argument that judges simply shouldn't review matters that are deeply moral in nature? Is it that where things are deeply moral in nature, that judges shouldn't give an earnest reading to the controlling cons utional language and should, instead, keep the majority viewpoint in mind and rule accordingly? Is it that courts should just uphold any law that is challenged if the challenge would seem to have a moral component? I honestly don't see how you're arguing against activism if you condition what judges should or shouldn't do -- or how judges should or shouldn't rule -- on the relative moral questions raised by particular legal issues.

Frankly, if moral support for a particular position like same-sex marriage is so strong, there should be no problem seeking and obtaining a cons utional amendment that would forever foreclose the legal questions raised in that regard.

http://www.law.cornell.edu/supct/html/03-633.ZS.html

What about Roper? Is that a suggestion of judicial activism? If so, how so?

you just said activism doesn't exist, but now it does, make up your mind.

You've obviously completely misunderstood just about everything I've written in this thread. I've never denied that activism exists; I've insisted that it exists on both sides of the political spectrum. I've also said that I think it is folly to think that one side is somehow on higher ground when it comes to this issue. The fact that you think that liberals support judicial activism while conservatives mostly object to it strikes me as nothing more than regurgiation of popular conservative rhetoric.

[JoeChalupa]

IT does exist on both sides.

[2centsworth]

this will be the end of it from my side because we're beating a dead horse to death.

You assuming that I'm quarreling with you is a question of your insecurities.

we're respectfully (most of the time) discussing the issue for clarity. Never assumed you were quarreling. However, it was important to my argument to understand who you were talking about, me or conservatives in general. Having it directed at me is nothing personal, but would have made me argue a different point.

So the entire concept of judicial review, with which every judge in the nation agrees but has no textual cons utional support, is evidence of activism and implicates every sitting judge across the nation. Yep -- not too broad there.

are you arguing there is a consensus opinion on judicial review? Can the judiciary overstep here?

Sure, but what happens when the voters haven't yet given an answer to that question? Are the judges who are forced to make the legal determinations that have moral ramifications activists? What if the legal outcome comports with your sense of morality? Is that activism?

the voters have given the answer to same sex marriage.

Furthermore, by resorting to the voice of the voter, I assume that you're talking about both cons utional amendments and legislatively-enacted statutes. And taking my assumption as true for the moment, would your argument be that a legislatively-enacted statute can never be overturned as uncons utional and that the majority's viewpoint should always hold on matters that you deem to implicate moral decision-making? If so, would you consider it activism for a court to strike down a law prohibiting interracial marraige?

there is no such law that I'm aware of.

Or to strike down a law that categorically prohibits adults from purchasing things like contraceptives? Do you really believe that the morality of the majority should be controlling as to all of society?

I do not want to live under the rule of judges (unelected kings). I prefer representative democracy.

I'd argue -- as I have before -- that the guarantee of equal protection of the law in a fundamental matter like marriage isn't much of a guarantee if it can be deprived to people based on the fact that they wish to marry someone of the same gender. That's not an activist viewpoint in my mind, it's completely consistent with a reasonable understanding of the function of the equal protection clause of the Cons ution.

the definition of marriage is 1 man 1 woman. your sense of morality shouldn't play here.



It certainly runs afoul of certain moral choices that might be made by the majority of society, but I'm not sure that the majority should be able to enforce its moral will upon all of society. That a court sees a prohibition on same-sex marriages as contrary to the equal protection clause is not, in my mind, an act of activism; it's precisely the sort of thing that judges are called upon to do regularly as a function of engaging in judicial review of statutory law (where such law actually exists). [/quote]

that's activism IMO. the definition of marriage has been determined by the voters. Should marriages be more than 2 people? Why do we outlaw polygamy?

Is your argument that judges simply shouldn't review matters that are deeply moral in nature? Is it that where things are deeply moral in nature, that judges shouldn't give an earnest reading to the controlling cons utional language and should, instead, keep the majority viewpoint in mind and rule accordingly?

forget majority viewpoint, stick to the written law.

Is it that courts should just uphold any law that is challenged if the challenge would seem to have a moral component?

judges shouldn't based their decisions on the morality, but on legality. For instance, I think Porn Shops are Immoral, but you will protect them because they are legal. If I were a judge I bet you I could make a very compelling argument to outlaw porn shops based on morality.

I honestly don't see how you're arguing against activism if you condition what judges should or shouldn't do -- or how judges should or shouldn't rule -- on the relative moral questions raised by particular legal issues.

is it legal judge?

Frankly, if moral support for a particular position like same-sex marriage is so strong, there should be no problem seeking and obtaining a cons utional amendment that would forever foreclose the legal questions raised in that regard.

some states have adopted laws, but have been overuled by activist judges.

You've obviously completely misunderstood just about everything I've written in this thread.

I haven't, but am trying to change your perspective.

I've never denied that activism exists; I've insisted that it exists on both sides of the political spectrum. I've also said that I think it is folly to think that one side is somehow on higher ground when it comes to this issue. The fact that you think that one side does hold the higher ground strikes me as nothing more than regurgiation of popular conservative rhetoric.ama

you argued it doesn't exist, but then you argued it does. I'm sort of following, but it is contradictory. nevertheless, I'll leave it at this. I do not want judges making moral decisions. I rather Obama persuade voters and influence ammendments, which should be easy with a democratic congress, and pass new law instead of appointing supreme court justices who will create their own laws usurping the power of the voter.

[FromWayDowntown]

this will be the end of it from my side because we're beating a dead horse to death.

Nothing like making a number of assertions and then promising to just end the discussion by assuring yourself the last word.

we're respectfully (most of the time) discussing the issue for clarity. Never assumed you were quarreling. However, it was important to my argument to understand who you were talking about, me or conservatives in general. Having it directed at me is nothing personal, but would have made me argue a different point.

I haven't directed anything at you, other than my sense that you choose to create strawmen through assumptions about my arguments and impose those assumptions (erroneous as they are) upon me. With that, I think the judicial activism argument from any quarter is nonsense.

are you arguing there is a consensus opinion on judicial review? Can the judiciary overstep here?

Do you dispute that all judges in the country engage in judicial review, which is not a textually-supported function of the judiciary?

the voters have given the answer to same sex marriage.

Sure, in the sense that they've supported initiatives concerning that matter in some states or elected representatives who've passed laws to that effect. My point, however, is to ask if you think that popularly-passed laws are essentially insulated from cons utional challenge because they are popularly-passed?

there is no such law that I'm aware of.

Not that long ago, there were. And but for the determination of the Supreme Court of the United States that such laws were uncons utional, those laws might still exist. Activism?

I do not want to live under the rule of judges (unelected kings). I prefer representative democracy.

Laudable and undoubtedly a widely-shared view (including my own). But I also don't think that the existence of a political majority on an issue (moral or otherwise) should be able to trump cons utional guarantees; otherwise, the majority is insanely powerful and the minority is trampled all over. I think judicial review is an essential component of assuring that the beliefs of the majority do not impinge upon the rights of the minority. And in that process, it is sometimes necessary for the judiciary to declare challenged acts of the voters to be uncons utional. That is true for everything other than a cons utional amendment.

With the same-sex marriage issue, states that have cons utional amendments banning same-sex marriage have done away with state-law challenges to such bans -- it's difficult to argue that a cons utional amendment is violative of the cons ution in which it is found. It would be possible, of course, to argue that such cons utional provisions violate the federal Cons ution; and I would expect to see some rather heated litigation over the issue at some point in the not too distant future. If a state cons utional provision offers less protection than the federal cons ution affords, that provision can certainly be deemed uncons utional. And in the large number of states that have statutes prohibiting same-sex marriage (Arizona, Wyoming, Minnesota, Iowa, Illinois, Indiana, Florida, North Carolina, West Virginia, Maryland, Delaware, Pennsylvania, Connecticut, Vermont, Washington) the existence of a law would leave open the possibility for attacks on both state and federal cons utional grounds. I guess with all of that, my question is whether a judge who strikes down the law is a judicial activist if his or her conclusion is one that is based on a fair interpretation of the cons ution? It would seem to me that you're just quarreling with the outcome if the judge strikes down the law and using this amorphous notion of activism as the basis for that dispute.

None of this begins to contemplate even the simplest questions of federalism.

the definition of marriage is 1 man 1 woman. your sense of morality shouldn't play here.

According to whom?

that's activism IMO. the definition of marriage has been determined by the voters. Should marriages be more than 2 people? Why do we outlaw polygamy?

But, curiously, the definition of marriage isn't a matter that voters of every state have agreed upon -- indeed, in at least 2 states, there are laws permitting same-sex unions. Are those voters legally wrong? If so, why?

I understand the slippery-slope argument concerning other forms of marriage, but there are perfectly reasonable arguments to suggest that equal protection contemplates marriage between two people who aren't currently married. That's a very different question, to me, than the basic question of the 14th Amendment's scope when it comes to fundamental rights.

forget majority viewpoint, stick to the written law.

But if the written law violates the cons ution, should the fact that the majority supports that law justify its continued enforcement?

judges shouldn't based their decisions on the morality, but on legality. For instance, I think Porn Shops are Immoral, but you will protect them because they are legal. If I were a judge I bet you I could make a very compelling argument to outlaw porn shops based on morality.

There you go again with suggesting that you know anything about my own political views.

I'll note, however, that given your definitions of judicial activism, you'd be a judicial activist if you made that argument.

is it legal judge?

Legal determinations have moral consequences. Some of those consequences are popular with the majority, others aren't. My point is that if the law compels a result that is unpopular with those who are in the moral majority (not the Moral Majority), the complaint shouldn't be with the judge who realizes that -- it should be with those who drafted the law or the lack of a more binding law (cons utional amendment) to preclude the activity.

some states have adopted laws, but have been overuled by activist judges.

So, again, an adopted law can never be deemed uncons utional without that result being the product of judicial activism?

I haven't, but am trying to change your perspective.

Good luck with that, given the arguments you've offered here.

you argued it doesn't exist, but then you argued it does. I'm sort of following, but it is contradictory.

I've never argued that it doesn't exist. I've argued that much of what is claimed to be judicial activism isn't that at all, unless judicial activism is just a euphamism for "I didn't like the result." Honestly, I think that's much of what this debate is. But I also think there are legitimate examples of activism on both sides, and I don't think I've ever disputed that.

Nothing contradictory about those statements.

nevertheless, I'll leave it at this. I do not want judges making moral decisions. I rather Obama persuade voters and influence ammendments, which should be easy with a democratic congress, and pass new law instead of appointing supreme court justices who will create their own laws usurping the power of the voter.

Are you aware of the fundamental difference between cons utional amendment and statutory law and the stunning gulf between the effect of one and the effect of the other?

I would argue, too, that even if Obama could convince a Congress to pass laws that were insanely popular but which violated the Cons ution, the role of the judiciary would be to strike down those laws. I would also differ with your characterization that any judge who strikes down a popular law on cons utional grounds is either creating his or her own law or usurping the power of the voter. I would argue that such judges are performing their judicial functions by assessing the cons utionality of laws in light of the Cons ution itself and that a refusal to strike down laws that violate the Cons ution would be the very sort of heinous activism that you lament.

[2centsworth]

Not true in either sense; and hardly uncons utional. The offender is told, when granted deferred adjudication that one term of that punishment (and it is a punishment) is the assurance that conviction for failing to comply with the program -- and the programs have pretty basic obligations -- will result in revocation of the d.a. and enforcement of the sentence that should have been imposed. The ball is totally in the offender's court at that point -- do what you've obligated yourself to do and you'll stay out of jail and have the charge deleted from your record after a reasonable time for compliance; get busted doing something you're not supposed to do and you'll go to jail.

it's not deleted.

I'm not sure why that would be an uncons utional "punishment" since it gives the offender nearly-complete autonomy to decide whether he or she will go to jail. Likewise, the fact that the offender was given deferred adjudication never comes up again unless he or she gets into trouble again, and then it is admissible only for the sake of assessing punishment, which necessarily means the offender has been convicted of committing a crime and is, in a very real sense, a recidivist.

Penal Code, a dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense. For any defendant who receives a dismissal and discharge under this section:

DA stays on your record and is considered a conviction most times.

On top of that, a judge who refuses to grant deferred adjudication would be violating an act of the Texas Legislature and would, in a very real sense, be the sort of activist judge that should be decried.

what is unconsitutional is they grant DA with the promise of expunction, and then they never ever expunge the case. On the contrary, it stays on your record and is considered a conviction by most public en ies when it comes to licensing and employment.

Think of me as a "liberal" for understanding.