Monday, November 07, 2005

Republicans Claim They Don't Want Justices Who "Legislate From The Bench." Then Why Do They Like Judge Alito?

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 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.

RUSSERT: So Judge Alito was wrong?


RUSSERT: And he was legislating.



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.


Anonymous teach1st said...

A kick for those against Bush's B.S.

11:31 PM  
Anonymous StellaBlue said...

GREAT post

11:41 PM  
Anonymous Anonymous said...

More Republican hypocrisy in motion. By the way, thanks for my second favorite website, after for dissecting Republican spin.

9:43 AM  
Anonymous bryant69 said...

This is one of their obvious hypocicies
They don't want liberals legislating from the bench; on the other hand many of them feel that most legislation since 1936 or so was based on a bad interpretation of the Constitution, and would love it if the Court struck it all down.


10:28 AM  
Anonymous waiting for hope said...

It's a smokescreen.....
Will somebody please pull back the curtain?

10:29 AM  
Anonymous Az_lefty said...

I thought the Re-Pigs didn't like activist judges? guess it's OK when they get what they want. Like a bunch of spoiled little kids.

12:58 PM  
Blogger CSC5502D said...

LOL right.

A judge ruling that Congress has exceeded its constitutional authority is not "legislating" anyting. It's the EXACT role of the Federal bench, and especially the Supreme Court. Their JOB is to rule on whether or not something is constitutional when it is challenged.

That is WHY we have Federal courts! You think Congress can pass anything it wants and then that's it? If that were the case, then Congress could mandate that the press report only what it says it can, and no judge could overturn it.

Otherwise, that judge would be "legislating from the bench"....right?


1:28 PM  
Anonymous alias: "cutiepie" johnson said...

A judge can rule that some law is unconstitutional. But a judge shouldn't be able to over-rule a law because he disagrees with that law.

I think Alito was guilty of the latter, which is why he was overruled by the Supreme Court.

1:54 PM  
Anonymous Dora said...

Great post - thanks for the information!

1:54 PM  
Anonymous Czolgosz said...

Imagine life in Alito-world

Read Judge Samuel Alito's dissenting opinion in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991). Instead of following the law, he tried to let the politicians re-write the Constitution to restrict a woman's right to make decisions about her own body!

Read Judge Alito's dissenting opinion in United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), where he tried to ignore almost 70 years of cases which had clearly decided the scope of Congress's authority! Here's a bonus: Judge Alito doesn't think Congress has the authority to regulate private citizens' ownership of machine guns!

Read Judge Alito's dissenting opinion in Banks v. Beard, 399 F.3d 134 (3d Cir. 2005), where he tried to re-write the law so prisoners didn't have access to newspapers or family photos!

Finally, read Judge Alito's dissenting opinions in Sheridan v. Dupont, 74 F.3d 1439 (3d Cir. 1996), and Bray v. Marriott Hotels, 110 F.3d 986 (3d Cir. 1997), where Judge Alito gives a big judicial OK to racial and gender discrimination!

Of course, even the Republican-dominated court of appeals and Supreme Court thought Judge Alito's ideas were radical, out of the mainstream, and maybe a little bit crazy.

But now just envision an America where each of these dissenting opinions by Judge Alito has become the universal law of the land!

And don't forget, ethics and promises to Congress mean nothing in Alito-world:

Judge Samuel A. Alito Jr. ruled in a 2002 case in favor of the Vanguard mutual fund company at a time when he owned more than $390,000 in Vanguard funds and later complained about an effort to remove him from the case, court records show -- despite an earlier promise to recuse himself from cases involving the company. . . . lawyer, John G. S. Flym, a retired Northeastern law professor, said in an interview yesterday that Alito's ''lack of integrity is so flagrant" in the case that he should be disqualified as a Supreme Court nominee.

Maharaj, 50, discovered Alito's ownership of Vanguard shares in 2002 when she requested his financial disclosure forms after he ruled against her appeal . . . ''I just started seeing Vanguard after Vanguard, and I almost fell to the floor," she said in an interview at the Jamaica Plain home she shares with a friend after losing her own home in the course of the prolonged litigation. ''I just couldn't believe that it could be so blatant."

In 1990, when Alito was seeking US Senate approval for his nomination to be a circuit judge, he said in written answers to a questionnaire that he would disqualify himself from ''any cases involving the Vanguard companies."

After Alito ruled in Vanguard's favor in the Maharaj case, he complained about her efforts to vacate his decision and remove him from the case, writing to the chief administrative judge of the federal appeals court on which he sat in 2003: ''I do not believe that I am required to disqualify myself based on my ownership of the mutual fund shares."

. . . .

In the 1990 questionnaire, Alito was asked how he would resolve potential conflicts of interest. He responded: I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard companies."

1:54 PM  
Anonymous CornerPerro said...

Nice catch

1:55 PM  
Anonymous MissMarple said...

Uh...everyone knows it's only bad when liberals legislate from the bench.

Alito has his personal religious views and cultural values to put in place.

3:26 PM  

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