Wednesday, July 20, 2005

Legislating from the Bench

Bush said over and over again that he would appoint a Supreme Court justice that would not legislate from the bench. His nomination certainly seems to fit that criteria.

What I don't understand is why is legislating from the bench a bad thing?? I'm not necessarily saying it's OK, but I don't see the problem with it. Maybe I'm just missing something. One of the organizations that Roberts belongs to is the Federalist Society. Their belief is that the role of the judicial branch is to say what the law is, not what the law should be. I'm not sure I agree with that. The job of the judiciary is to interpret the law and how it applies to specific cases. Its job is to look at the facts, including the existing laws, and find the fairest and most just outcome. Sometimes legislation falls short. The judiciary shouldn't let a flaw in the legal system prevent fair and just judgments.

Another argument often heard is appointing judges that will uphold the constitution. That's just a stupid statement. All judges, no matter what their ideology, will treat that as their primary responsibility. But when you look at the Constitution, you'll realize that it is a short document that lays out the structure of government. It really offers very little help in interpreting modern issues. After all, Roe v Wade was decided based on Constitutional right to privacy. The Constitution, by neccessity or design, is open-ended and vague. That's probably why it's lasted over 200 years - the little it says is hard to argue.

The true nature of government is fluidic and changing, adopting to current circumstance, defined by all three branches of government in equal proportion. Saying the judicial branch shouldn't legislate from the bench is a violation of one of our most important principles: checks and balances.


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