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Legislating From the Bench:
Monday's White House press briefing with Scott McClellan had a pretty amusing exchange with reporter Helen Thomas about just what the White House means when it says that Harriet Miers won't "legislate from the bench." Thomas tried to push McClellan to be more specific, and McClellan did his best to avoid saying anything substantive. Here is the exchange:
Q The President doesn't want anyone who would legislate from the bench. Can you define that a little bit more? For example, is Brown versus the Board of Education of Topeka, Kansas — was that legislating? Was Miranda legislating? Was the right to a lawyer legislating from the bench?

MR. McCLELLAN: These are great questions. I'm not the one who's going through the confirmation process. These are questions that will come up in the confirmation hearing process, I imagine. I'm sure the —

Q But I want to know what you are saying. You keep saying —

MR. McCLELLAN: I'm sure that members of the Senate —

Q — you can't legislate from the bench. Would all of those rulings been wrong under your —

MR. McCLELLAN: And what we mean by it is that she is someone who will strictly interpret our Constitution and our laws, that will not try to make law from the bench. That's what the President means by it.

And that means that she is someone who will look at the facts of a case and apply the law, what the law says, and that's what the American people expect in a Supreme Court justice. And that's what the President has always looked for. He's nominated more than 200 people to the bench. And Harriet Miers has been very involved —

Q Is Roe versus Wade the law —

MR. McCLELLAN: — has been very involved in that process.

Now, in terms of cases that could come before the Court, I don't think anyone has an expectation that a future judge should answer a question about a case that could come before that Court. A judge should be fair and open-minded and look at the facts of a case and then apply the law.

What you heard from these Supreme Court justices just now was that Harriet Miers is someone who is very fair-minded, and she is someone who will look at the facts and apply the law. And these are all questions about legal issues that she will be answering.

Q But you bring them up. I mean, you —

MR. McCLELLAN: That's right. And she looks forward to —

Q — keep talking about legislating from the bench. Does that mean that nothing changes in 200 years?

MR. McCLELLAN: Of course not, Helen. She will be talking about these issues when she goes before the Senate Judiciary Committee to answer questions. And she looks forward to answering their questions, and we look forward to the American people seeing her before the Judiciary Committee, where she will have an opportunity to discuss these issues and more.

Larry (mail) (www):
That is beautiful. The lay people have been baited with such slogans for long enough, and it is hilarious to watch what happens when someone is asked to define their terms.
10.18.2005 8:13am
Huggy (mail):
I pray Larry that you get your wish. That all politicians get to define their terms for us lay people. Right now before the coming elections. Not later in their book deals.

I pray too that Helen Thomas and her comrades are forced to give a full public disclosure of their agendas to us lay people.
10.18.2005 8:41am
Medis:
I actually find this fascinating. I think everyone has been assuming that these phrases were some sort of code, but it increasingly looks like they are merely platitudes.
10.18.2005 9:01am
Yankee_Mark:
It will be a good result if such canards as 'judicial activist', textualist, and originalist will finally die their long overdue deaths. *sigh* Judges always have brought their own perspectives and results orientations to the bench and they always will ... they ARE all human after all and I believe that for the most part, they act in good faith. But left & right alike are just as prone to the various judicial ills.
10.18.2005 9:24am
dk35 (mail):
I second Yankee Mark's comment. And Medis, I also find it fascinating, though I would also make the argument that codes and platitudes aren't mutually exclusive, particularly when they are directed toward fundamentalist religious groups, as they are here. All of Bush's words and phrases were meant to maintain his fundamentalist base, and when it comes to religion, facts and logic are out of bounds. Religion is not fact-based, it is by definition platitude based.
10.18.2005 9:37am
corngrower:
Lets get back to the questions.

Each and everyone of this overly self important reporter (btw not a lawyer) questions is an example of the court creating legislation. Challenge, Quote that part of federal statute, or, the constitution that is appliciple.

Yes the press secretary is a wimp, but, he is not the person setting policy. therefore, unlike Helen Thomas, he has no OPINION
10.18.2005 10:23am
corngrower:
I just re-read the Q and A. There is not a single response from McClellan that is a dodge. He is not the nominee. His opinion is of no relevence. And, Miss Helen can ask anything she pleases. It is her right,under the constitution. Just, there is no requirement for a response.

I also found this interchange amusing. Helen Thomas comes across as the dodering fool she has become, and McClellan never stumbled or stuttered. Yes, amusing
10.18.2005 10:33am
Medis:
corngrower,

Actually, they are trying to ask Scott what the PRESIDENT means when he says certain things. Scott is dodging the question by pretending that they are asking about Miers instead, and then claiming he can't answer on her behalf. So unless you believe the Press Secretary can't answer question about what the President has said, you don't have much of a point.

dk35,

My point was actually that I think it may be dawning on some of those fundamentalists that what they thought was code in the form of a platitude was actually really just a platitude, and that the President may not be as committed to their views as they thought.
10.18.2005 10:48am
Larry (mail) (www):
Looking back at it, it seems that the reported asked what "the president" wants


Q The President doesn't want anyone who would legislate from the bench. Can you define that a little bit more? For example, is Brown versus the Board of Education of Topeka, Kansas — was that legislating? Was Miranda legislating? Was the right to a lawyer legislating from the bench?



But McClellan referred to what would come up in the "confirmation hearing process."


MR. McCLELLAN: These are great questions. I'm not the one who's going through the confirmation process. These are questions that will come up in the confirmation hearing process, I imagine. I'm sure the —



This is strange, because the president will not be questioned in the confirmation hearing process. Therefore, my guess is that this was some sort of code. Most appellate lawyers that interact with the public use these terms to bait the lay people, but I expected that the White House would do better.
10.18.2005 11:05am
NaG (mail):
Since when should a press secretary be expected to accurately define complicated legal positions?

Besides, even if he gave the right answer (which is basically that judges should stay within the language of the law and not reach outside of it in order to either extend or shorten the reach of the law on its terms), Helen wouldn't know what to do with it. She'd probably just say, "He means a judge that would overturn Roe v. Wade," and leave it at that without further thought.
10.18.2005 11:08am
Jamie:
As a layperson, I understand the term "legislating from the bench" to mean interpreting the text of the constitution in a manner to acheive a desired outcome rather than to interpret it consistently across cases and let the outcome chips fall where they may. I thought that was the universal understanding until reading the McClellan-Thomas exchange.
10.18.2005 11:24am
Jeremy Pierce (mail) (www):
I don't think anyone has an expectation that a future judge should answer a question about a case that could come before that Court.

Hmm. I could have sworn I heard some senators during the Roberts hearings saying exactly that a nominee should answer such questions.
10.18.2005 11:30am
Brian Palmer:
NaG, if you've read the transcripts for previous press briefings with McLellan, perhaps the question should be, "Since when is this press secretary expected to answer questions?"

As Medis pointed out, the President keeps using that phrase. The President is certainly no lawyer ... so I'm sure whatever he's thinking of when he says that, a non-lawyer journalist could understand perfectly well.
10.18.2005 11:31am
Larry (mail) (www):
Jamie, There is not a judge in history that has claimed that he was inconsistent in reaching decisions and results-oriented. Strangely, there is no shortage of people that claim that others are results-oriented. Interestingly, these people usually back away from their claims when asked for specifics or you demonstrate that you have read the cases that they talk about, which most lay people can't.

NaG, The question wasn't asking for a normative definition of what constitutes "good judging" but rather for a simple definition of a term. This shouldn't be too hard. Of course, if you use words you can't define, you got a problem.
10.18.2005 11:35am
ken (mail):
Examples of legislating from the bench

1) Requiring school systems to integrate (such as busing, etc.)
2) Levy of taxes to increase money spent on schools (I believe that occured in Kansas City)
3) Eliminating restrictions on contraceptives, etc.
4) Laying down rules as to when abortions may or may not be procured
10.18.2005 12:04pm
Random Law Talking Guy (mail):

Does that mean that nothing changes in 200 years?

Poor old bird doesn't think much of the Democrats' chances to EVER recapture the legislature, does she! Isn't this question sort of admitting that the Democratic Party has resigned itself to imposing its will through non-democratic means?

And people wonder why no one trusts a Democrat with a gavel...
10.18.2005 12:08pm
NOLA:
My favorite part is the point at which Thomas suggests that perhaps "nothing changes in 200 years" absent "legislating from the bench." And of course, she intimates several times that the White House is unfriendly to desegregation.

Its not at all wrong for reporters to ask the White House what it means by nebulous terms such as "legislating from the bench" and "strict constructionist" (even if McClellan may not be the perfect go-to guy on questions of jurisprudential theory), but a doddering, vicious old fool is still a doddering, vicious old fool.
10.18.2005 12:30pm
Steve B:
1. The president said she won't legislate from the bench.
2. Assume the following is true (and I think that most of the president's base takes the following to be more or less true):
Examples of legislating from the bench

1) Requiring school systems to integrate (such as busing, etc.)
2) Levy of taxes to increase money spent on schools (I believe that occured in Kansas City)
3) Eliminating restrictions on contraceptives, etc.
4) Laying down rules as to when abortions may or may not be procured


1 + 2 = the president said that Meirs would have been in the dissent in those cases.

Is that not a reasonable conclusion (assuming the president defines "legislating from the bench" this way)?

Put another way, why does he keep using that phrase if it doesn't mean what most people believe it means? If he has some other opinion as to what constitutes "legislating from the bench," shouldn't McClellen clear things up so that we know what the president is saying?

Perhaps Thomas asked these questions because many Americans happen to think that Griswald, Brown, and Roe were correctly decided.
10.18.2005 12:36pm
Steve B:
As an aside, I think many Americans would also agree that any judicial philosophy that forces you do dissent from Brown is morally bankrupt.
10.18.2005 12:39pm
Shelby (mail):
I don't have to be impressed with Helen Thomas to think she was quite reasonable in this exchange. If the White House is going to babble on about "legislat[ing] from the bench" it's fair to ask the official White House spokesman what the hell the term means. His inartful dodging of the question merely highlighted the vacuity of the phrase.

I for one wish the Senate would stick by its guns more in demanding responses to specific questions. If a particular case is already coming before the Court, fair enough to duck that, but otherwise the nominees should be fair game. And why on Earth are they given a pass on previous cases? We know how the actual justices voted; why not ask the nominee how, given his/her understanding of the case, he/she would have voted? That may be uncomfortable sometimes, but so what?
10.18.2005 12:53pm
worm eater (www):
Isn't this question sort of admitting that the Democratic Party has resigned itself to imposing its will through non-democratic means?

No. It means that the law, as written, cannot be interpreted fully without taking account of the prevailing (democratically expressed) opinions of the populace. Given current widely held opinions about race, gender, and the role of government, the Constitution cannot be interpreted the same way it was by most Americans at the time it was written.

As a side note, don't you think it is a bit strange to contend that the Democratic Party has resigned itself to "imposing its will" through the judiciary at a time when federal judicial appointments are made by a Republican??
10.18.2005 1:34pm
Robert Schwartz (mail):
"they ARE all human after all and I believe that for the most part, they act in good faith."

Pick one. Human's do not usually or normally operate in good faith.
10.18.2005 1:44pm
ChuckL (mail):
McClellan was wise to avoid these questions because he knows that they are treacherous. Helen Thomas knows this too, because she designed them to be so. She knows that there is no way that either McClellan or Bush could successfully engage in an intellectual discussion of these questions in a press conference even if they were inclined and able to do so (which they probably are not). Thomas and McClellan both know that these questions cannot be answered competently without engaging in the kind of close reasoning and drawing of crucial distinctions that are impossible in the politically charged context and atmosphere of a press conference. For example, Michael Kinsley, among many others who also support abortion, has argued that Roe v. Wade was badly decided, that it constituted legislation from the bench, and that actual legislation legalizing abortion could and should be passed by state and federal legislatures. If he said this in a press conference, the headline would be: "Kinsley Wants Roe v. Wade Overturned." Likewise, if Bush/McClellan argued that ending forced segregation was desirable but Brown leaned too heavily on social science testimony, does anyone believe that Helen Thomas would (or could) write an article faithfully detailing the B/McC argument, rather than one declaring that "Bush Seeks Reversal of Brown and Return to Segregation"?
10.18.2005 1:57pm
corngrower:
McCellen did not dodge a single question. He can not, and should not speak for either Bush or Miers. McCellen is the press secretary. All that got a bitch with the answers,get to ask the nominee live and in person during the confirmation hearings. I assume that all of the dissenters here are in the senate? Right?

Helen Thomas can ask anything she wishes. But each and every question she asked at this press conference was answered correctly and honestly. The press secretary is not going to answer for POTUS or Meirs, asking is fine but an answer that you like, is not required anywhere that I can find.

I don't have to answer to the President, so, I'll answer The Great Helen's Questions.

Yes Miranda, is, as a matter of law, making law from the bench. But since I did not go to law school someone that did, can point out that part of the constitution that says 'the cops gotta tell the crooks rules of the constitution. Or maybe some law enacted by some elected body. Go crazy looking if you desire. Facts prove that SCOTUS invented Miranda from thin air. It is a horrendeous decision not founded in any legal concepts.

Medis. No. You are wrong. Actually, they are trying to ask Scott what the PRESIDENT means when he says certain things. It is not the press secretary's job to define what the President means. Ask the President. Here's how it works. The President is charged with nominating judges. He does not have to justify his picks. The Sentate votes up or down,(unless one of them don't feel like it then nothing happens).

A court did in fact levy taxes to bus white students into other schools to 'even up' the white to black ratio. Someone smarter than me can find those laws that define the 'right' ratios of blacks and whites, (African Americans and Lower Eastern European Americans). So…That is making law from the bench. Don't see a law, don't see the constitution, just a court imposing taxes to pay for what the court wants. I could be wrong, but, under separation of powers, only congress can levy a tax.

Restrict Contraceptives. Sorry, just confused here. When did any branch of govt restrict contraceptives.

Rules on abortion.
Well lets look. Ummm No don't see that mentioned in the constitution, so my guess is that SCOTUS would have never issued an opinion on the conditions that would warrant, or deny any medical procedure. (Those judges are huge constitutional experts and never address a subject not mentioned in the constitution, let alone try to define something not metioned)
10.18.2005 2:45pm
100 Things of Cheese (mail):
Corngrower (and others): Regarding the role of the WH Press Secretary, exactly what is his job if he does not speak for the president? He is sent out to face the Press Corps and to answer questions regarding policy, initiatives, plans, and more. All of this comes from the President; McClellan has been briefed on the president's thinking and knows exactly what to say.

Regarding Thomas's questions, I think they were very appropriate. The Senate and the Nation will be asked to judge the value of Miers as a candidate for the highest office in the land. The WH has repeatedly said that one of the qualifications was a nominee who does not "legislate from the bench." Thomas was asking McClellan to clarify exactly what this means.

I think we deserve an answer.
10.18.2005 2:53pm
ChuckL (mail):
Thomas was asking McClellan to clarify exactly what this means.

I think we deserve an answer.
-------------------------------------------------------
Helen and we would deserve an answer if her question had been sincere and had been asked in a forum that allowed for a response that would be communicated and evaluated on its intellectual merits. But this was not a law school colloquium, it was a political event within a political forum, and in that context the question got exactly the response it "deserved." When you ask a "gotcha" question, you have to admire a "missed me" answer.
10.18.2005 3:32pm
Hoyapaul:
Corngrower:

Your argument makes no sense whatsoever. The job of the Press Secretary is to speak for the President; that's the whole point. He refused to answer what he meant by "legislating from the bench" even though the President and McClellan himself has used the phrase. You're argument seems like the type of very lawyerly Clintonian response conservatives whined about for years.

As far as what constitutes "legislating from the bench", do you consider striking down campaign finance laws on 1st Amendment grounds to be "legislating from the bench"? How about striking down affirmative action programs based upon the Equal Protection Clause, even though many of the original Framers of that amendment supported affirmative action-type programs at the time (so much for "originalism"). And how about wanting judges to prevent governments from conducting reasonable eminent domain in their own communities? Is this "legislating from the bench"?

In other words, McClellan's entire canard can be translated very simply: "judges should not legislate from the bench, unless they are legislating in a conservative way. Then it's appropriate."
10.18.2005 3:43pm
Unnamed Co-Conspirator:


It's certainly true that the Court acted in Brown and its companion case because it felt a moral imperative to do so. But it doesn't follow that refusing to act would have been "morally bankrupt." What about the philosophy that says that the 14th amendment requires Congress to act to enforce the EPC? As a practical matter, nothing much happened to Jim Crow until 1964, when Congress did something about it; it's not as if Brown suddenly de-segregated public schools. The phrase "all deliberate speed" was an acknowledgment of both the Court's lack of power to enforce its own rulings and the political nature of any remedy for segregation. And what about Bolling v. Sharp? Do you think it's morally bankrupt to refuse to rewrite the 5th amendment to include an equal protection clause? What's morally bankrupt is the fact that no federal legislation enforcing the 14th amendment could get through the Senate because of filibusters by the Dixiecrats. But the Court's job isn't to fill in constitutional gaps where "morality" requires it to do so; it's to interpret the constitution as written. Assigning moral values to judicial philosophies is nothing but a lame excuse for rulings that go beyond the Court's power under the Constitution. Not that I think Brown was such a ruling. It's companion case was, though.
10.18.2005 4:07pm
corngrower:
Hoyapaul; Yes it is the pess secretary's job to hold press conferences No he is not required to respound to every question asked by doddering old fools. Legislate from the bench? I already explained that all of the things mention are actions taken by courts that not a single legal scholar would up hold.

Striking down campaign Finance law. yes That would be reading the first Ammendment that states we have a write to speak by ads etc. Thats not making law it is overturning a law that runs contrary to the constitution.

Striking down affirmative action laws. Yes. Those laws are counter to the constitution, the part that says you cannot discrimminate based on race, gender, ethnicity,etc. So as a member of SCOTUS the only choice would be to allow two white girls with better credentials into law school. In place of 2 black girls. It is part of the constitution. Intent is important, but, the words do have meaning. And if I can discriminate against white females, who else can I constitutionaly discriminate against?

emminent domain. This also is part of the constitution. Just that the last court saw the words 'for public use' and changed them to 'for public good' I guess you think these phrases mean the same. But to a lawyer they are galaxies apart. Taking property from one person and selling it to another is a action the govt is forbiden from. you can write all the law you want, but, the constitution is still there. You want your town council take your house and sell it to someone to build a mall?
10.18.2005 6:39pm
Hoyapaul:
Corngrower:

"Thats not making law it is overturning a law that runs contrary to the constitution."

Well, that's you're opinion. But the fact is that it is a court standing in the way of the people who, through their representatives, deliberated and voted to pass a campaign finance bill. Can you explain to me where it says in the constitution that Congress cannot pass campaign finance legislation?

"Those laws are counter to the constitution, the part that says you cannot discrimminate based on race, gender, ethnicity,etc."

And what part would that be? Please cite me that part of the Constitution. And please explain how even though many of the Framers of the 14th Amendment supported affirmative action programs, a supposed "originalist" can support striking down a democratically-agreed upon affirmative action program?

"Taking property from one person and selling it to another is a action the govt is forbiden from."

Find me that part of the constitution that says exactly this and get back to me. My impression is that the Constitution actually says that private property cannot be taken for public use, without just compensation. Where does it say what you mean it to say?

Sorry, corngrower. You have to try harder.
10.18.2005 8:15pm
Yankee_Mark:
Implicit in my earlier comment is the fact that the very act of judging quite frequently has an effect that can plausibly be spun as "legislating." Whenever faced with a case with contradicting laws, or where there are gaps in the law as written ... the judge finds him/herself with litigants and a real life dispute before them. No matter which way said judge rules, the resolution requires that new legislation law arise from thin air. That's why I feel that the use of the phrase "Legislating from the Bench" is disingeunous at best.

As for Originalism ... there is so much in modern life that the Constitution is silent on or where various provisions intersect in unclear manners that require resolution. Not to mention recent trends in legislation and regulation writing that intentionally leave gaps, intending that the courts will ultimately sort it out. Or a President who signs a law with the intention/prediction that the Supremes will strike it down. Alas, life and law are not so simple as those with the pat answers & catch phrases would like to have us believe.
10.19.2005 1:27am
Steve B:
Unnamed Co-Conspirator:

I would posit to you that any philosophy that is unable to take into account moral considerations is by definitional morally bankrupt.

I gather you frown on judges considering morality, and that is fine. But that does not mean that all judicial philosphies must totally ignore morality, and I'm unsympathetic to those philosophies that choose to do so.
10.19.2005 11:27am
corngrower:
Hoyapaul
Can you explain to me where it says in the constitution that Congress cannot pass campaign finance legislation?
Explain the first Amendment to the constitution? You need someone to explain to you the enumerated restriction on the Federal govt that bans my ability to campaign for the candidate running for public office? You need this explained? I guess GWB (he is the current President of the United States) could by a stroke of the pen, create the new Great Church of the United States of America. After all the first amendment states in plain language that 'Congress shall make no law concerning the establishment of a religion' Hence SCOTUS has no option but to allow the President the ability to create, and support a religious entity.

And exactly what is your meaning of Free Speech? Look it up. I've said it before and I'll say it again. It is called the Bill of Rights. But, if you actually read the first 10 Amendments you only see those actions that the govt cannot
do. They (the govt) cannot force me to worship in any church; they cannot stop me from supporting my candidate. They can't take my gun; they can't throw me in jail without a trial etc, etc etc.!!!! Go get a clue! Really!

And please explain how even though many of the Framers of the 14th Amendment supported affirmative action programs, a supposed "originalist" can support striking down a democratically-agreed upon affirmative action program?
Just because Congress passed it and the President signed it don't make it law. That is the REASON for SCOTUS. To apply the constitution to statute. I Guess a democratically passed law allowing a foreign born person to be President is just fine with you. After all it was democratically enacted. You are being silly. Affirmative Action is fine with you. But, Who sets the rules? I guess in New Orleans I could start firing the black construction workers and replace them with whites until I got the 'proper' ratio. Whatever that might be. I'm just using affirmative action to equal things out.

My impression is that the Constitution actually says that private property cannot be taken for public use, without just compensation. Where does it say what you mean it to say?
Ding ,ding, ding, ding, you win, that is what it says ding, ding, ding, ding, you got it. Now just explain the Kelo ruling to me. You've heard of this Kelo ruling right? I'll just hit the high spots for you.

The place is New London Connecticut. Susette Kelo bought a home. But according to you, Susette Kelo is inferior to the govt. the govt used eminent domain and took her home (and a bunch of others). The govt used eminent domain to evict the legal owners of property, sell the property to another private person to create a mall and hotel. Your homework assignment is to explain how a hotel and a mall are public use.

You don't need to try harder, just try a little bit.
10.19.2005 1:04pm
Hoyapaul:
corngrower:

Now I see why you defended McClellan so strongly. You love to offer complete non-responses to my questions.

"And exactly what is your meaning of Free Speech? Look it up. I've said it before and I'll say it again. It is called the Bill of Rights."

What in God's name does this mean? That the Bill of Rights is the meaning of Free Speech? This makes absolutely no sense. Tighten up your logic here.

"But according to you, Susette Kelo is inferior to the govt."

I never said this. And this has nothing to do with my question, the point of which was to point out that you made no rational argument against Kelo. Which is unfortunte, since a rational argument can be made.

Also, your analogies are completely off-base. The Great Church of the United States? What does this have to do with my point about campaign finance legislation?

Your view is simple: there really is no argument over how SCOTUS should decide the many questions that arise that are not directly dealt with by the text of the Constitution. They should decide it in the "obvious" conservative way, of course. And even though we're striking down democratically-agreed upon legislation, it isn't activism. Of course.
10.19.2005 2:40pm