Legislating from the Bench

You’ll hear that phrase a lot on right-wing talk radio — “Legislating from the Bench.” Neo-cons supposedly don’t like it when judges decide to take the Constitution of the United States into their own hands and interpret it to serve their own means. That is, except when it benefits one of them (please reference Bush v. Gore, December 12, 2000, when the Supreme Court of the United States handed down a decision that noted, “…none stand more in admiration of the Constitution?s design to leave the selection of the President to the people, …however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.” [emphasis mine]).

So if the Neo-Cons really value true constructionist principles, they surely cannot stand behind someone like recent Supreme Court nominee Samuel Alito, who scripted a highly controversial dissent which blasted the federal law prohibiting the sale and ownership of machine guns. According to an article in Salon.com, Oklahoma Republican Senator Tom Coburn noted on this week’s “Meet The Press” that

“I don’t think a judge has the right to make that decision,” Coburn said. “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 [is] an area that’s up for debate and needs to go back to Congress. If Congress decides that, then it should be there.”

The article also notes that “like every appellate court that had addressed the issue, [Coburn] said that Alito’s view was wrong.”

So if Alito is willing to creatively interpret the law here, who knows what he’ll do with the Constitution? Well, my guess is that if he’s confirmed, he’ll be just another Neo-Con activist judge, creatively interpreting the law to turn back time whenever he can.

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