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  #241 (permalink)  
Old 05-30-2008, 03:12 AM
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I hadn't realized it, but the California Supreme Court has only one judge appointed by a Democrat (Moreno appointed by Gray Davis) so the Republican appointed justices split 3-3 on the decision.

So, no matter what your view, you can say three Republicans were legislating from the bench.
Or you colud speak the truth, and just say; while doing their job, the six split on weather this was a unconstitutional law, or not, and the deciding vote was cast by the sole judge appointed by a democrat.
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  #242 (permalink)  
Old 05-30-2008, 08:57 PM
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Or you colud speak the truth, and just say; while doing their job, the six split on weather this was a unconstitutional law, or not, and the deciding vote was cast by the sole judge appointed by a democrat.
But that would mean taking the point of view of Justice Beyer on the kinds of issues the high courts decide, rejecting the conservative claims the high court justices legislate from the bench.
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Old 05-30-2008, 09:14 PM
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But that would mean taking the point of view of Justice Beyer on the kinds of issues the high courts decide, rejecting the conservative claims the high court justices legislate from the bench.
Seems to me I've heard Liberals complain about that as much as Conservatives do. Truth is truth, it's not partisan.
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Old 05-30-2008, 09:49 PM
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The contempt for the Constitution, the 1st and 14th amdndments the seperation of powers, and the democratic process displayed by the right, is shameful
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  #245 (permalink)  
Old 05-30-2008, 10:28 PM
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Seems to me I've heard Liberals complain about that as much as Conservatives do. Truth is truth, it's not partisan.
But as Obama pointed out, the conservatives had "ideas" (not necessarily good ones) like inventing catchy phrases like "legislate from the bench."

[[[I'm curious about who coined it; the first reference I've found is a quote by Vice President Bush in 1985 in an obit of the justice who died that year.]]]

Of course, common law was precisely "legislating from the bench." I don't believe the rule SCOTUS came up with in Roe were criticized at the time as "legislating from the bench" but only for its precident that overturned many state laws. Only after legislators tried to write laws that circumscribed Roe did the trimester logic get termed "legislating from the bench."

If the Roe decision gave no parameters and simply ruled "wrong rock" in a dozen different cases, they could have crafted something almost like the trimester test without stating it, and avoided most of that criticism. And with lots of cases without a unified logic, stari decisis would be much more difficult to overturn - no case or law challeging the court could challege all the prior cases, and it would require a SCOTUS deciding to "clean up a mess" like they did with Roe.

In any case, most uses of "legislating from the bench" come from conservatives, as a means of attacking judges, rather than a criticism of rulings.

Last edited by mulp; 05-30-2008 at 10:31 PM.
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  #246 (permalink)  
Old 05-30-2008, 11:00 PM
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Originally Posted by mulp View Post
But as Obama pointed out, the conservatives had "ideas" (not necessarily good ones) like inventing catchy phrases like "legislate from the bench."

[[[I'm curious about who coined it; the first reference I've found is a quote by Vice President Bush in 1985 in an obit of the justice who died that year.]]]

Of course, common law was precisely "legislating from the bench." I don't believe the rule SCOTUS came up with in Roe were criticized at the time as "legislating from the bench" but only for its precident that overturned many state laws. Only after legislators tried to write laws that circumscribed Roe did the trimester logic get termed "legislating from the bench."

If the Roe decision gave no parameters and simply ruled "wrong rock" in a dozen different cases, they could have crafted something almost like the trimester test without stating it, and avoided most of that criticism. And with lots of cases without a unified logic, stari decisis would be much more difficult to overturn - no case or law challeging the court could challege all the prior cases, and it would require a SCOTUS deciding to "clean up a mess" like they did with Roe.

In any case, most uses of "legislating from the bench" come from conservatives, as a means of attacking judges, rather than a criticism of rulings.

For example..creating a new law to decide a presidential election, or adding a new criteria for voting in the state of Indiana
That was legislating from the bench
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  #247 (permalink)  
Old 05-31-2008, 01:57 PM
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Seems to me I've heard Liberals complain about that as much as Conservatives do. Truth is truth, it's not partisan.
Presumably you are referring to the SCOTUS striking down law after law passed by Congress after FDR swept the Democrats into office....

The voters were overwhelmingly behind the laws that Congress was passing.

But judges were overruling the will of the people.

If the major pieces of the New Deal were overturned by the Supreme Court today as they were back then, only Ron Paul, and about a third of his supporters, would be happy. Everyone else would be outraged by the court legislating from the bench.
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  #248 (permalink)  
Old 05-31-2008, 06:20 PM
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Presumably you are referring to the SCOTUS striking down law after law passed by Congress after FDR swept the Democrats into office....

The voters were overwhelmingly behind the laws that Congress was passing.

But judges were overruling the will of the people.

If the major pieces of the New Deal were overturned by the Supreme Court today as they were back then, only Ron Paul, and about a third of his supporters, would be happy. Everyone else would be outraged by the court legislating from the bench.
You mean socialists would be outraged.
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  #249 (permalink)  
Old 05-31-2008, 07:11 PM
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Banning gay marriage serves no purpose beyond satisfying the bigoted masses who feel that gay couples, for some obscure reason, should not have access to the same benefits as straight couples, despite pulling just as much of a load for the society as anyone else.

Perhaps someone woke up and realized that.
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  #250 (permalink)  
Old 06-02-2008, 03:57 PM
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You mean socialists would be outraged.
Absolutely, all Americans except for Ron Paul and about a third of his supporters are socialists: they believe in society.
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