RUSSERT: So Judge Alito was wrong?
COBURN: Sure.
RUSSERT: And he was legislating.
COBURN: Sure.
***
At this point, Coburn must have realized that he had just said the exact opposite of the Bush Administration's talking point on Alito. So, naturally, he tried to spin.
RUSSERT: So conservative jurists or strict constructionists can also legislate.
COBURN: Well, I'm not sure that's what he is yet. You've assumed that. I haven't made that decision on what he is or any ...
RUSSERT: I'm not making any judgment. I'm ...
COBURN: Well, you just said, "A strict constructionist can legislate." I'm sure that we all can, and nobody's pure in any way.
***
Unfortunately for Republicans, this isn't the only example of Alito "legislating from the bench."
In Chittister v. Department of Community and Economic Development, a 2000 case, Alito "legislated from the bench," by denying Family and Medical Leave Act protections to a Pennsylvania state employee. Essentially, Alito found that Congress had exceeded its power in passing the law — the very definition of "legislating from the bench."
The Supreme Court, by a 6-3 margin, overruled Alito's findings when it upheld Family and Medical Leave Act provisions for a state employees in the 2003 case of Nevada Department of Human Resources v. Hibbs.
So, why do Republicans support Alito? If they don't want a justice "legislating from the bench," shouldn't Republicans torpedo Alito's nomination as quickly as they ex-nayed the nomination of Harriet Miers?
***
In spite of these examples — and I imagine there are likely others — Democrats face an organized spin campaign from Republicans. A host of Republican Senators released statements praising Bush's choice of Alito. Among the reasons? He doesn't "legislate from the bench."
Some Republicans took things a step further.
According to a Nov. 3 story in The Hill, one of the Republican candidates hoping to have a chance to battle Sen. Ben Nelson (D-NE) next November made Alito an issue. And watch how he drops the GOP spin line:
"I think if Senator Nelson is not supportive of putting judges on the bench who will not legislate from the bench it will be very important,” Don Stenberg, a former state attorney general.
And there you have it. Accept the spin line as fact, or else. For some Republicans, the facts of Alito's career aren't nearly as important.
***
This item first appeared at Journalists Against Bush's B.S.
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.