One frequent Republican talking point is that the party favors judges who won't "legislate from the bench."
The phrasing came up again last week, when President Bush nominated 3rd Circuit Appeals Court Judge Samuel Alito to fill the Supreme Court seat held by Sandra Day O'Connor. A backgrounder on Alito at whitehouse.gov says: "Judge Alito does not legislate from the bench or create new policies based on personal opinion."
This is not an isolated bit of phrasing. After Bush nominated John Roberts to the Supreme Court in July, Jan LaRue, chief counsel of the conservative group Concerned Women for America, gave the thumbs-up, saying: "Everything we know about Judge Roberts tells us that he fulfills the president's promise to nominate a judge who will strictly interpret the Constitution and not legislate from the bench."
And last year, just before the presidential election, conservative writer David Limbaugh wrote a column, "Kerry Wants Judges Who'll Legislate from the Bench," in which he said: "Since conservatives abhor judicial activism, it is no accident that most "originalist" judges are conservatives — though they don't believe in "legislating" their ideology from the bench."
But someone forgot to give that memo to Sen. Tom Coburn (R-OK).
Speaking on the Nov. 6 edition of NBC's Meet the Press, Coburn and host Tim Russert had this exchange about Judge Alito:
RUSSERT: Let me ask you about another decision. And the Brady Center to Prevent Gun Violence put this out last night. This is from Jim Brady, White House press secretary for Ronald Reagan who was shot in the assassination attempt: "Judge Samuel Alito's dissent in U.S. v. Rybar ... argued that federal restrictions on machine gun possession amounted to an unconstitutional of congressional power under the Commerce Clause. ... his opinion attempted to erect arbitrary hurdles to congressional efforts to reduce the availability of machine guns to the criminal element."
These aren't handguns or hunting rifles. These are machine guns. Do you believe that Congress has the right to restrict the sale and transfer of machine guns, or do you think that Judge Alito's correct that Congress should not be interfering in that?
COBURN: No, I think we probably have the right to do it. But I don't think a judge has the right to make that decision. I think Congress — and that brings us back to the whole point. Those aren't decisions judges should be making. Those are decisions that legislators should be making. And that's how we've gotten off on this track is, that we allow judges to start deciding the law, new law, rather than interpret the law that the Congress — what the — what should have happened in that case is this an area that's up for debate and needs to go back to Congress. If Congress decides that, then it should be there.
Article comments
1 - Michael J. West
The problem is with the phrase from Limbaugh's column: "Since conservatives abhor judicial activism...
To be fair, I do know a number of conservatives who abhor judicial activism in all forms. But I also know a number of conservatives who WANT judicial activists on the bench...as long as they're CONSERVATIVE activists. Look at all the people whose opposition to Harriet Miers was because they didn't think she'd be enough of a conservative activist.
But Limbaugh's trying to pretend that all conservatives equally hate every kind of judicial activism. They do, however, all hate liberal judicial activism.
2 - Matt
There is a difference between creating laws, legislating from the bench and ensuring that Congress does not exceed its Constitutional authority. We are a nation of limited government by the Consitution. Unfortunately, those limits have long been exeeded. Jefferson even doubted the Constitutional authority to build the Erie Canal and the National Pike.
Not everything should be allowed under the guise of "interstate commerce".
3 - RedTard
The definition of an activist judge is one who doesn't agree with you.
A judge that is strictly interpreting the law will sometimes make unpopular decisions because of what is written.
In the Family Medical Leave Act case Alito was "right" by the law and the SC legislated what they thought was a fair instead of just taking the constitution and the law at face value.
The 11th amendment to the constitution clearly states that you can't sue a state in federal court without that states consent.
The SC decided that regular laws superceded or "abrogated" an amendment in this case. Seems like pretty shaky logic to me. I don't know since when congressional laws carried more weight than amendments, but then I'm not a legal scholar either.
4 - Al Barger
This column is nonsense. Specifically right here, "Alito found that Congress had exceeded its power in passing the law -- the very definition of "legislating from the bench."
NO, that is not the very definition of legislating from the bench, it is the definition of judicial review. That's what the SCOTUS is there for.
Ruling or voting against a gun control law is not just making up law- THAT is actually in the constitution, unlike supposed abortion rights and school busing and so forth.
Now, it gets tricky picking what's original intent or being strictly constructionist in some cases. However, creating a right to unlimited abortions out of the air clearly IS judicial activism because it's not in the US Constitution. Throwing out a restriction on gun ownership is clearly NOT just a judge making stuff up on the bench because that IS in the US Constitution.
5 - David R. Mark
The FMLA was written with specific rules regarding the provision in the 11th amendment -- so the FMLA wouldn't be subject to the 11th amendment. Alito said you can't do that, and tried to reverse what Congress had written.
That's legislating from the bench.
The SC upheld the law, and thus overruled Alito.
6 - RedTard
"The FMLA was written with specific rules regarding the provision in the 11th amendment -- so the FMLA wouldn't be subject to the 11th amendment."
It sounds like congress tried to get around the constitution to to expand the power of the federal government to me. Activism works both ways. I want the justices to limit the power of the federal government, not expand it.
7 - Baronius
Darn, several people already shot down David's analysis, better than I would have. Allow me to add one point: that not every Republican agrees on everything. This isn't a question of spin versus reality; it's a debate about proper interpretation. It makes sense that legislators are protective of legislative power, so of course Coburn doesn't like references to the Commerce Clause. The same as the executive and legislative branches fight over war powers.
But I find it hopeful that a judge talks about not wanting to overreach.