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A Brief Reference to Judges:

In his acceptance speech, Senator McCain did make a brief reference to judges as a political issue:

We believe in a strong defense, work, faith, service, a culture of life, personal responsibility, the rule of law, and judges who dispense justice impartially and don't legislate from the bench. We believe in the values of families, neighborhoods and communities.

It's not much, but it's more on this subject than we heard from Gov. Palin, Sen. Biden, or Sen. Obama.

PLR:
It's not much...

By itself, true. But the code is widely understood.
9.5.2008 12:08am
Hoosier:
The less from Biden on this the better. His performance during the Roberts hearings was depressing.
9.5.2008 12:09am
FlimFlamSam:
In fairness to Palin, she is running for VP, I think her speaking about judicial appointment philosphy would send the wrong message, i.e. that McCain is likely not to finish his term.
9.5.2008 12:17am
MS (mail):

We believe in . . . judges who dispense justice impartially and don't legislate from the bench.



and in unicorns.
9.5.2008 12:42am
Mike& (mail):
It's less than "not much." It's a worthless platitude.
9.5.2008 1:03am
Careless:

It's less than "not much." It's a worthless platitude.

I'm not sure what else happens during the national conventions
9.5.2008 1:05am
theobromophile (www):
It was nice to hear. Can't help but wonder how that plays to most of America - whether they ever really think about how high-ranking federal judges can influence their lives.

Rudy said the same thing at the Federalist Society Lawyer's Convention last year. Nothing against the man, but he almost seemed like he wasn't connecting the code with either principles or concrete action.
9.5.2008 1:29am
Dtass:


We believe in . . . judges who dispense justice impartially and don't legislate from the bench.




and in unicorns.



MS wins the thread
9.5.2008 1:37am
MQuinn:
I agree that MS wins the thread! While MS's comment was hilarious, it also makes an important point. It is high time that politicians stop pretending that only liberal or only conservative judges "legislate" from the bench. This is a uniform flaw!

I think the following point has been made recently in this thread, but I will repeat it: the whole "legislating from the bench" mantra is really a code for pro-Roe or anti-Roe, depending on the speaker and audience.
9.5.2008 2:02am
Angus:
As has been said many times here and on other sites"

Legislating from the bench = I disagree with the decision
Dispensing justice impartially = I agree with the decision
9.5.2008 2:36am
Dave N (mail):
Angus,

And a good judge dispenses justice impartially when he disagrees with the legal principle he has to apply but does so anyway.
9.5.2008 2:42am
Angus:
Dave N,
Yes, but that kind of misses the point. What "judicial activism" means to politicians and voters is "the judge disagrees with me."
9.5.2008 2:48am
Jay Myers:
"penumbras, formed by emanations" = "I just pulled this out of my ass."
9.5.2008 4:26am
Libertarian1 (mail):
I think the following point has been made recently in this thread, but I will repeat it: the whole "legislating from the bench" mantra is really a code for pro-Roe or anti-Roe, depending on the speaker and audience.



If I correctly understand your point I must disagree. My opposition to "activist" judges and "legislating from the bench" has absolutely nothing whatsoever to do with Roe. I totally support a woman's right to choose and think any and all abortions including "partial birth" should solely be a decision between a woman and her physician. It should not be a government prerogative. Similarly marriages should be contract law.

My activist opposition is about the numerous other judicial decisions based not on the law but on the judges trying to achieve "fairness". See every decision by the NJ Supreme Court.
9.5.2008 5:24am
Olde Republican:
Who gives a Nifong?
9.5.2008 9:55am
Celia (mail):
Dave N said:

"Yes, but that kind of misses the point. What "judicial activism" means to politicians and voters is "the judge disagrees with me.""

I suspect not. It is more like - a rejection of sophisticated legal interpretative nuance insinuating itself into "law" as opposed to adherence to clear Constitutional or statutory intent. Even the average "man (sorry I mean person) in the street" knows that self-regulation is fraught with danger -- in essence, no one judges the judges - an unabashedly "self-interest" group with no oversight by the citizens who, in effect, only by default allow, them their privileged positions of power and ultimately (unfortunately) have no formal control over them.

The problem could be solved by putting judicial fiat to the vote every time it occurs. Nothing like a little participatory democracy to brighten up our day.
9.5.2008 11:44am
Dave N (mail):
Celia:

Angus said it, not me.
9.5.2008 12:35pm
Oren:

"penumbras, formed by emanations" = "I just pulled this out of my ass."

It's too bad you don't believe that the Constitution grants parents the right to teach their children foreign languages or home-school their children. References to these (I hope self-evident) rights are not found in the literal language of the Constitution but must be logically inferred.
9.5.2008 1:28pm
Celia (mail):
Sorry Dave -- my comment was dashed off rather hurriedly (explanation, not excuse) - I stand corrected.
9.5.2008 1:29pm
Tatil:
Well, a major part of democracy is protecting the rights of the minority, whether that is racial, ethnic, religious or political. As politicians are more likely to pander to the majority to win the elections, some of their actions or legislations are bound to contradict the constitution or principles of democracy. Therefore, it is not absurd for the court system to act as a brake on Congress or catalyst for change.

Of course, when courts decide for gun rights, that is an impartial decision, but when it decides for abortion rights that is legislation from the bench. Hypocrisy knows no bounds...
9.5.2008 3:42pm
Celia (mail):
Oren,

In reference to the issues (and associated case law) as per your examples, the First Amendment is clear (or literal, if you like) -- free speech and assembly are guaranteed -- no inference is required. Local statutory issues are, patently, a different matter. The Constitution certainly does not, thankfully, speak to equivalence, similarities, facsimiles nor approximations.

"Teaching" (in other words speaking to an individual or an assembly of individuals) has been determined (despite it facial obviousness) to be protected under the First Amendment -- in that regard (and others) see, eg, Justice Arthur Goldberg's drawing upon the words of the Ninth Amendment in Griswold v Connecticut. Of course, William O Douglas wrote the leading opinion in that case and he was not only the author of "penumbras" but, despite all else, he (ironically?) (along with Hugo Black (who dissented in Griswold) clearly favored a literalist interpretation of the First Amendment.
9.5.2008 4:50pm
NickM (mail) (www):
"Legislating from the bench" is used by many people to refer to decisions that don't simply uphold or strike down laws, but instead substitute detailed schemes of the judge's own devising.

Example: CA Supreme Court decision strikes down Family Code section limiting marriage to opposite-sex couples: awful decision in my view, but not legislating from the bench.

Nick
9.5.2008 5:10pm
Celia (mail):
NickM --

Valid point but unfortunately, from a "justice" perspective there are plenty of examples of judges "creating" law out of thin air. Obviously, precedent functions in this manner. Another example, inter alia, is imprisonment for a civil offense, especially in the guise of contempt -- basically a judge can do as she/he pleases, thereby making the rules as he/she goes. How about the recent case of the Florida judge who ordered Joe Francis (the Girls Gone Wild guy) to settle a civil case -- despite his case NOT being subject to binding arbitration. Of course, the judge had absolutely no authority to do that (it is obviously unconstitutional) -- but he did it anyway -- if this doesn't get challenged, guess what it, in effect, becomes "law" through stare decisis. These are cases of "making it up as we go", this process is obviously not within the purview of judges in societies with strict civil codes, where rules (general or otherwise) are the law and these lie within the domain of the legislature and judges cannot hand down decisions outside the matter of law immediately before them) -- it should be the same here. This might put a stop to judges, who in the process of trying to be "fair", are handing down decision that are, in fact, horribly unjust.
9.5.2008 7:38pm
Oren:
Celia, if the 1A includes "teaching as part of the word "expression" then the 14A includes private consensual sexual conduct as part of the world "liberty". You don't get to read the provisions you like expansively and the others narrowly.
9.8.2008 4:44pm
Celia (mail):
Oren said:

"You don't get to read the provisions you like expansively and the others narrowly."

Well Oren, that's not quite right. I can read them as I'm inclined but I recognize your argument.

The particular words, ie those referenced in 1A are "abridging the freedom of speech". I cannot see any other way of reading those words, nor any potential interpretation other than their plain meaning. I'd proffer likewise for, "or the right of the people peaceably to assemble". I also didn't say that I embraced the due process argument (an unfortunate trend of the day?) but I'd equally argue that there is no need to do that, based on the First and Ninth. To wit, Goldberg found the Ninth persuasive and, again I can't see any argument against that other than one troublingly too sophisticated or one so overly narrow and suffering of such internal inconsistency to render it, in essence, against the intent.
9.8.2008 9:12pm