Maybe in a technical sense. But, we are specifically talking about judges “legislating from the bench”. Obviously judges cannot create and pass new laws. Only legislators can do that. Judges just make decisions about laws. However, does this mean that we can conclude it’s impossible for judges to “legislate from the bench?”
Obviously it is possible for judges to overstep their bounds and do something more akin to “legislating” than “judging”. (Think in terms of theoreticals if you disagree that this is already occurring.)
Technically, true.
Yes, but it is legislating from the bench. It’s the closest thing they can do to legislating.
The point is they shouldn’t be doing this at all. Passing laws, proposing laws and creating laws is not the job of the judges. Frankly, with major things like CFR passing through the net, I’d like the judges all around the US to focus more on protecting the constitution than making up new material out of whole cloth.
In the thread that I cited earlier, Bricker identified these “right process” cases:
Do you agree with him?
Huh? Ok, but we were talking about legislation from the bench. Here look:
Compare that with this:
How is this case any different from Roe v. Wade? I don’t see any of those words in the first amendment.
How are we supposed to evaluate a claim that you admit is not provable?
Before you said it was the 7th Circuit. I assume that was a typo. I’ll stick with my response that both the 7th and the 4th Ciruits are good counterexamples.
I’m too lazy to read all the messages in this budding train wreck, so I’ll just like to address the borderline-flame-of-an-OP with a few short statements:
The Supreme Court is the highest court for the entire country.
Therefore, the POTUS best serves the entire country by nominating a SC Justice who is acceptable to the entire country.
Pissing off half the nation with a right-wing ideologue candidate[sup][/sup] does not serve the entire country.
[sup][/sup] Oh, right, like that won’t happen…
Quick point: Money is absolutely a part of speech. Preventing me from spending my money with a group to speak for me is clearly blocking my speech.
I can’t fly off like superman to every instance of my 2nd ammendment rights being trampled. I have the NRA to do that. I pay them and they spend my money to fight for the cause I believe in. By muzzling them (and the Sierra Club, and the ACLU, and others) you are clearly blocking speech.
I realize that the article called the court California’s, but it was ignorant of it to do so. While the 9th Circuit is headquartered in California, its jurisdiction includes many states, Guam, and CNMI. It is a federal court.
How will splitting the court reduce the number of opinions, or the workload. If anything, it will increase the cost of the same workload.
It is disputed whether the 9th Circuit is all that liberal, or all that reversed (pdf).
BTW, Debaser, the idea that opposition to CFR is an essentially conservative or libertarian position is also fundamentally misconceived. It is an essentially pro-plutocratic position, but no more than that. From the same book, pp. 256-259:
You can’t get much more conservative or much more libertarian than Barry Goldwater. And even he was horrified at what money has done to American politics! What would he have said to your “money is part of speech” argument?
Back to the OP…
…I believe the Dems will filibuster merely because, to them, the fact that this is a *Supreme Court nomination will qualify it as “extraordinary circumstances.”
First, in the MA case, I fail to see that the judges made up anything new. They made a decision, explained the decision, and then it was up to the legislature to do something or not. Saying “This law is no good because ABC, but it would be fine if ABD because…” is not legislating, to me. It’s a part of clarifying the decision. That’s what we pay judges to do.
I disagree with you, also on
I agree with the example above re: a microphone. You have the right to speak your mind, but no inherent right to speak loudly. Certainly there is no right to speak so loudly that others cannot be heard. Is there?
With regard to the OP
If you only meant the 7 Dems who signed the accord, why did you bash all Democrats? It was unnecessarily inflammatory.
(btw, I am and always have been a registered Independent voter. No one tells me what to do but me.)
Well, that’s going to be a tough one. I’ll have to back at least a week. The SC decided that eminent domain has no definition beyond that which individual States might wish to legislate. This was addressed in the Constitution and gutted by the SC.
It was an unpopular decision that spanned both political parties and it was done by legislating from the bench.
Nonsense. The point of electing a leader is that the leader leads with his vision of how the country should be run. If the people are not pleased, they throw him out and elect another one. The idea that a President should nominate someone he doesn’t like because of the division in the country on issues is absurd.
Dude, you gotta check this stuff out before you say it. Here is what the MA court ordered.
It ruled that the lower court erred in sustaining the statute, and then stayed its order 180 days so that the legislature could try to fix the statute if it wanted to. That’s a totally different thing from forcing the legislature to do anything.
Moreover, the Massachusetts Supreme Judicial Court is apparently allowed to give advisory opinions when requested by the legislature (as many state courts are). I know this because they asked for one in response to this very case. http://news.findlaw.com/cnn/docs/conlaw/maglmarriage20304.html
That is why it is significant that it is a state case. Some states differ from the federal government in their philosophy regarding the relationship between the judiciary and other branches of government.
Sure. Every man, gay or straight, has the legal right to marry a woman. Every woman, gay or straight, has the right to marry a man. THAT would be the equal application of the law. Myopic, but equal.
What the MA court was innovate – they applied the Massachusetts Constitution’s equal protection clause in a way that was a dramatic departure from the way it had been construed before.
I argue that a court should not be the agency to apply a radical departure of interpretation. When the effect of a court’s ruling is to make dramatic new law, they should stay their hand and permit the legislature to act.
In Hawaii and Alaska, courts also found that the state constitutions required same-sex marriage. But in both states, when the electorate was consulted, they responded with state constitutional amendments clarifying that no, in fact, that ISN’T what their constitutions meant.
In Massachusetts, the constitution cannot be amended so quickly. But a constitutional amendment DID pass the Massachusetts legislature last year restricting marriage to opposite-sex couples. It must pass again this year, and then the voters must approve it, for it to become part of the constitution, but it’s on track to do that.
Every single state that has put the issue to the voters has rejected the notion of same-sex marriage. Every single one.
If same-sex marriage can only exist by being imposed by judges, not the legislature, what does that say about our notions of self-governance? And if we have judges that are willing to innovate so dramatically when interpreting the constitution, what does that do to our notions of self-governance?
Mr. Bush should - and will - nominate a judge who will interpret the federal Constitution by reading the words of the document, not using the penumbras that only judges can see. And that, alone, should not rise to the level of “extraordinary circumstances” in the seven Democrats’ minds.
I have a [gasp] litmus test for how Democrats should respond when Bush makes his nomination: If the Family Research Counsel and the Christian Coalition aren’t hopping mad enough to chew neutronium after he announces the name, then Democrats should filibuster unitl their eyes bleed. If Bush prostrates himself before the American Taliban, Democrats have a duty to shutdown the Senate, until after the next presidential election, if necessary.
Now, you all the newbies out there, he has, (but hopefully will not be, again), been challenged on this claim, by myself, and many others. He seems to be hoping that just because the debates are on the second page, people will forget how re-re-re-re-re-done this topic is. Maybe, if no one else takes this up, he will get the message, and we will not have any more of this hijack.
I don’t disagree with those points. But I ask: “Who has the role of deciding what ‘basic human rights and freedoms’ are?”
You, personally?
Me, personally?
Judges?
What will be your position on that question if President Bush selects the next three Supreme Court justices, and the Court then decides that an unborn child is a “person” within the meaning of the Fourteenth Amendment?
After all, unborn children are minorities; may I quote back your cite to you and demand your acquiesnce?