Posted on 06/02/2009 9:26:20 AM PDT by Capagrl
I just had a liberal friend tell me that the terms "legislating from the bench" and "activist judges" stem ONLY from the right wing nuts. I KNOW this is not true, but I am having a hard time finding articles which come from the left when talking about Bush nominees or actual cases where activist judges legislated from the bench.
In case you guys hadn't seen (something I caught a ton of in my searching), there are a PILE of articles piling up that are blaming conservatives for making up the whole activist judge thing. They're saying that we only feel that way when a judge's decision doesn't go our way.
I am beyond furious at this. Anyone great with internet searching want to help me prove this guy wrong?
Roe v. Wade.
Birth/abortion is not mentioned in the Constitution or its Amendments.
Do you really think, in today’s age, that you’ll be able to convince this guy regardless of all the evidence you give him?
I doubt it.
The very oath of a SCOTUS justice says that they are to dispense justice without regards to persons. That means their race, sexual orientation, tax class or whatever never comes into it
Perhaps you can’t find the information you seek because conservative judges follow the constitution and cannot be accused of legislating from the bench. I believe Roe v Wade is an example of making law through judicial ruling.
Yeah, start with the judicial activists that decided “all men” did not include free slaves, and thus could never vote or be citizens (Dred Scot).
While I don’t know where the specific term originates, it refers to the basic “Separation of Powers” concept. The legislature legislates, not the judiciary.
In my opinion, the Left doesn’t know or appreciate what the separation of powers means. During the “Gang of Seven” judicial filibuster episode, Dems defended the use of the filibuster on Separation of Powers grounds. Apparently, the separate powers the Dems saw were not the three branches of government, but Dems and Pubs in the Senate had separate powers.
Look at judges who rule in favor of gay marriage after the people have voted to oppose it.
Also, Social Security.
See this list for more:
http://www.legalaffairs.org/webexclusive/debateclub_cie0505.msp
Check this out.
http://www.verumserum.com/?p=5797
See if you can get a copy of Ted Kennedy’s diatribe on the Senate floor 45 minutes after Judge Bork was nominated for the Supreme Court. Rush played it last week, and I’m almost certain that Kennedy called Bork an “activist” judge, among many other disgraceful accusations he made.
“Men in Black” by Mark Levin.
I just had a liberal friend tell me that the terms "legislating from the bench" and "activist judges" stem ONLY from the right wing nuts.
It's probably true that those specific expressions were coined by conservative-leaning commentators. From a liberal's point of view, "legislating from the bench" just means "exercising reasonable and compassionate jurisprudence".
You cannot use logic or even evidence to convince someone who believes only what he wishes to believe.
All your articles are belong to us...
It’s not even a question of Right v left. It’s a question of staying true to the Constitution or not.
One single object [will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation.
"usurping legislation" is what we call "judicial activism" today.
You are due a NEW set of friends:-()
It doesn’t matter where the argument comes from, what matters is the argument. Do judges make decisions for which there is no basis in the law, or decisions which contradict the law? That is the question. This is legislating from the bench. The rule of law depends on the law being, well, law, a set of rules we understand and can follow, not the arbitrary rulings of the judiciary.
Debating over who pointed this phenomenon out first is irrelevant and has nothing to do with settling the question of whether or not judges legislate from the bench. It doesn’t matter who complains about it, and it doesn’t matter whether or not these are liberal or conservative judges, or whether these rulings contrary to the law please us or displease us.
Your friend’s responsibility is to either admit that yes, judges legislate from the bench and to explain either why he approves of it or to say that he disapproves of it, despite these rulings working in his ideological favor, OR to explain how judges aren’t legislating from the bench (against all evidence). Arguing over who complains about it is a distraction from this, the real debate that you ought to be having with him.
Those who believe that the Constitution means what it says object to judicial activism, and those people are called conservatives. Those who think the courts are supposed to be legislating from the bench never object when the courts deviate from their proper role, since they like the general idea of deviations from the rule of law and only their fellow liberals would usurp legislative power. An honest conservative (and most of us are honest) would object to judicial activism, even if that activism helped the conservative's side on one of the rare issues where a conservative disagreed with the Constitution as written.
The bottom line: judicial activism is almost exclusively a liberal phenomenon.
If this person isn't a relative, dump them. They aren't worth your time. If they are a relative, then you'll have to figure out how to be civil at gatherings and such and then get as far as you can from them when the time is right.
Liberals are nuts, period.
I asked a gifted daughter of a college friend if she was familiar with a statement of the Obamassiah. “He didn’t say that!” she hotly denied.
When I asked her if my emailing to her the exact page of Obama’s book which she had bought and read, she said “Honestly, no it wouldn’t”.
That was spoken in the context of nothing I told her would make any difference to her. Liberal, even crazy Liberal she assuredly is on the subject of Obama. But she was honest - nothing would make any difference.
Life is too short to talk to such people.
I suggest recognizing the committed Liberal and avoid them.
Seriously?
You’re asking for help here when Wikipedia has quotes from several judges on either side of the aisle professing a belief in judicial restraint?
Look up “Judicial Activism” on google, then try Yahoo, then try the WSJ archives, then come ask for help if you need more.
If it will help to get your friend on the right track, at the very least you can point out that even left-wing lawyers and legal scholars believe that Roe v. Wade was a bad ruling that had no basis in the Constitution.
This was within Biden's OPENING statment...
Senator Biden was the first questioner. Instead of the softball questions he’d promised to ask, he threw a beanball straight at my head, quoting from a speech I’d given four years earlier at the Pacific Legal Foundation and challenging me to defend what I’d said. ”I find attractive the arguments of scholars such as Stephen Macedo, who defend an activist Supreme Court that would strike down laws restricting property rights.” That caught me off guard, and I had no recollection of making so atypical a statement, which shook me up even more. “Now, it would seem to me what you were talking about,” Senator Biden went on to say, “is you find it attractive the fact that they are activists and they would like to strike down existing laws that impact on restricting the use of property rights, because you know, that is what they write about.”pp 235-236 of "My Grandfather's Son" by Clarence ThomasSince I didn’t remember making the statement in the first place, I didn’t know how to respond to it. All I could say in reply was that “it has been some time since I have read Professor Macedo … But I don’t believe that in my writings I have indicated that we should have an activist Supreme Court.” It was, I knew, a weak answer. Fortunately, though, the young lawyers who had helped prepare me for the hearing had loaded all of my speeches into a computer and at the first break in the proceedings they looked this one up. The senator, they found, had wrenched my words out of context. I looked at the text and saw that the passage he’d read out loud had been immediately followed by two other sentences: “But the libertarian argument overlooks the place of the Supreme Court in a scheme of separation of powers. One does not strengthen self-government and the rule of law by having the non-democratic branch of the government make policy.” The point I’d been making was the opposite of the one that Senator Biden claimed I had made.
Tell your friend to blow it out his/her Dasshole.
You can google Policy making and Sotomayor for more specifics.
However, if your friends want to know what it means have them explain what the following definitions are:
Executive
Legislative
Jusicicial
Now go read the Federalist papers for more information.
There is no debating with a Stalinist. They will deny the facts until the cows come home.
It isn’t about a convicing argument, it is about winning at all cost.
It does not further their socialist/communist/Marxist/fascist agenda.
Yes this is the new talking point. The leftists are trying to misdirect the argument by painting “judicial activism” in terms of “overturning legislation” which is patently ridiculous.
Overturning unconstitutional legislation is a mandate for the Court. What true “judicial activists” do is effectively legislate from the bench, using judicial decision making in place of policy making. Which is exactly what Thomas, Scalia, Alito and Roberts DO NOT do, but which Sotomayor and the rest of her marxist-leftist cronies find perfectly acceptable.
Take it from others: write off your “friend”.
You will never be able to convince him of any truth, other than what he is fed by the media.
First off, “activist judges” are not judges, they are tyrants in blackrobes.
?
I don’t understand your post.
A Tyrant in blackrobe does not a judge make.
........they are tyrants in blackrobes.......
You are spot on. What we now have is tyranny.
There is tyranny of the lawyers and judges who make it to be what they want.
We have a new breed of specialized tyrants that are known to the MSM as Czars.
Oh, come to NJ. Mount Laurel (imposes affordable housing requirements on towns. A huge spur to development as well). Abbott school districts (state funding given to poor districts; other towns mostly funded by local property taxes. Publically funded pre-school in the poor destricts, even though the state constitution explicity requires funding only for kindergarten and up.) Not to mention all the insane contortions rewriting the law when Toricelli would have lost the Senate race and the Dems replaced him with Lautenberg, way post-primary.
Forced school busing, thinking particularly of Boston. A real city destroyer, and hasn’t done a whole lot to integrate.
Why are you trying to convince a liberal of anything? Were there no pigs who needed dance lessons?
It doesn't sound logical to reject them unless they are wrong, not because of an ad hominem argument.
I assume it is because “right wing nuts” say it, that your friend is rejecting the terms, correct? But that is a logical fallacy.
I would think a listing of the cases for the Ninth Circus court would provide a bonanza.
Good research, but I so loathe the idea that one must quote a lib for it to be a good reference.
And I even saw a video clip where the Soda Mayor was joking about it, and then said she shouldn't have said that because she was being recorded.
Her and her leftist buddies had a good laugh over that one.
Making policy is judicial activism.
The law is supposed to be blind, applied to all of us regardless if we are poor and black or wealthy and Asian.
There is nothing in the constitution which allows judges to ‘ make policy ‘. That is simply not the role of a judge.
That’s because they are stupid. They don’t bother to do research. They just listen to a bunch of madeup bs.
I hear you but I’d say it pretty much proves that it was in fact a liberal that coined the phrase “judicial activism” and not a conservative...
All of these are good ideas, but for a truly scholarly analysis of the phenomenon, you need to look at:
Brian Tamanaha, Law as a Means to an End (circa 2006)
and
Brian Tamanaha, On the Rule of Law (circa 2002)
Tamanaha describes in detail the project by both political parties to cast the other in terms of judicial activism. The Lochner-era court (1905-1937), for example, was alternately cast as uber-formalist, ultra-conservative, and judicially activist because they refused to permit the federal government to expand its authority to the radical extent necessary for the regulatory state and routinely overturned legislation that contravened constitutional limitations. (This characterization is not actually true).
FDR took the court on a radically activist slide, effecting arguably the 3d American revolution (or coup), to create the regulatory state. FDR & later democrat appointees more or less just made up constitutional law as they went along, resulting in a complete revolution in constitutional interpretation and theory from the first 125 years of the republic.
By the time the Republicans got power, slightly more conservative appointees were again accused of activism in their attempts to reverse some of the truly idiotic moves by the FDR dominated court. That said, they were themselves guilty of gross manipulations of constitutional doctrine, but in fairness at least some of it was necessary to repair the damage done by FDR’s band of jerks.
The better term that Tamanaha explores in his later book is the dichotomy between instrumentalist and non-instrumentalist approaches to law. The non-instrumentalist approaches law as a responsibility, as having moral value in its own right, and as acknowledging that there are some things that cannot be and should not be done through the force of law. This incorporates a philosophy of executive, legislative, and judicial restraint.
The instrumentalist, as the title of Tamanha’s book suggests, merely views law as just another means to an end. If a particular law is even theoretically within the power and authority of the legislature and judiciary to enact / create, then they can and should do so to accomplish proper social ends. The Nazis were the ultimate instrumentalists, as were the Roe v. Wade justices.
Be aware that the left actively began creating mythologies regarding non-instrumentalist thinkers, courts, and legislatures back in the ‘30s. These have been repeated so often that many are now accepted as fact. Recently, some skeptical non-Leftist legal scholars like Tamanaha and Mark Movsesian have begun reexamining the tripe the left has spewed for the last 90+ years, but it’s an uphill battle.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.