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What Exactly Does “Legislating from the Bench” Mean?

judge2a.jpgIn the discussions surrounding the recent Supreme Court appointments, it seems that the big judicial no-no is to “legislate from the bench.” Orin Kerr has an interesting post about the ambiguity of this phrase as used by the White House. What exactly does “legislating from the bench” mean?

Currently, the phrase “legislating from the bench” means little more than “I know it when I see it.” Despite being thrown about rather vaguely and carelessly, the notion of not legislating from the bench appears to be based on a particular approach toward constitutional interpretation, one that I will call the “principled conservative process-based approach.” By “process-based,” I am referring to conservatives who seek to articulate an approach toward judging–a method–not just a set of results they desire for particular cases.

So what is the method? As I understand it, the method involves a combination of at least three elements: (1) a reluctance to stray beyond the constitutional text or a commitment to interpreting the Constitution according to original intent or a combination of both; (2) a posture of judicial deference toward the Legislative and Executive Branches, as well as other government institutions; (3) a respect for precedent and a Burkean view toward making radical changes in the law.

Far too often, the conservative process-based approach is thought and spoken about with Roe v. Wade in mind. But I wonder what applying the conservative process-based approach would have meant for some of the other famous Supreme Court cases of the past century. Consider the following cases:

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13

A Reply to Richard Epstein on Genetic Testing

dna6.jpgIn his first post to the relatively new Chicago Law Faculty Blog (which has turned out to be a really interesting blog by the way), Professor Richard Epstein argues against my recent post about genetic testing in the workplace. Epstein disagrees with my general view that it is better to restrict employers from using genetic information in making employment decisions.

epstein.jpgEpstein’s argument is based in part on his view that privacy is a form of misrepresentation, tantamount to a kind of fraud by concealing disreputable and harmful information. In this regard, he agrees with his colleague, Richard Posner, who makes a similar argument. If a person knows he will drop dead in a month from a fatal disease, it would be fraud to deliberately conceal this information on a life insurance application. So why not when seeking employment, Epstein asks, since employers often invest heavily in training a person?

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0

In the Annals for Dumb Criminals

crackhouse2.jpgTip: If you run a crack house, don’t put up a sign that says “Crack House” when you’re open for business.

According to the article:

Memphis police say brazen drug dealers are behind bars after a sting operation called “Operation Blue Crush”. All is quiet at 3293 Rosamond. That’s because the alleged gang members who took over the house are in jail. Police say the suspects were so bold they advertised the fact that this was a crack house. When they were open for business, they’d flip an address sign over that read “Crack house.”

1

The Philosophical Significance of the Repo Man

It is time to consider a much neglected topic in legal thought: the philosophical significance of the repo man. Aside from providing the grist for cult movies, the repo man also poses some very basic questions about the nature of the social contract and the autonomy of private law.

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0

Miers, Frum, Congress, and Respect

miers.jpegAt National Review, David Frum’s criticms of the Miers nomination continue apace. Frum is now discussing John Fund’s op-ed from yesterday, which focused on a conference call where religious leaders were told about Miers’ alleged beliefs about Roe v. Wade. If true, this creates a number of potential problems. Frum notes one particularly salient problem:

If Fund is right, the White House was acting in such a way as to persuade a group of religious leaders that they were being given more information on a nomination than would be given to the US Senate.

Such behavior, if true, would be inexcusable. Either the White House is giving religious leaders greater access to nominee information than Congress — which would be outrageous. Or the White House is simply letting religious leaders think (wrongly) that they’re getting more information than Congress — which would be evidence of blatant hypocrisy, dishonesty, and deep contempt for its own supporters. Neither option looks good for the White House.

Probably the best way out is to hang the two call participants (who allegedly knew Miers’ preferences) out to dry, painting them as rogue agents or loose cannon loudmouths. But can that be done — to two close Miers associates — without negative consequences for Miers herself?

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A Day in the Life of Blogging

Wake up

Check email

Check blog – see if co-bloggers have posted anything and read comments to posts

Check site meter stats – see how many people visited and who’s linking to the blog

Check Technorati – see who’s linking to the blog

Check out blogs linking to the blog

Check The Truth Laid Bear – see the latest ranking of the blog

Check other blogs for ideas for blog posts

Check news sites for ideas for blog posts

computer-addict4.jpgWrite blog post

Check email

Check blog

Check site meter

Lunch

Check blog

Check email

Check site meter

Check blogs and news websites

Write blog post

Check Technorati again

Check email again

Check site meter again

Dinner

Check blog

Check other blogs

Think of ideas for tomorrow’s blog posts

Check email

Check Technorati

Check out blogs linking to the blog

Check site meter

Bedtime

Repeat the above for life . . . .

1

Naked celebrities make the best magazine covers

newyorker-thumb.jpg The American Society of Magazine Editors has chosen the best magazine covers of the past 40 years. In first place is the Rolling Stone cover featuring a nude John Lennon In second place is the Vanity Fair cover featuring a nude Demi Moore. I think I’m seeing a trend here — for great magazine covers, take pictures of nude celebrities! (Nude Dixie Chicks, however, were only #27).

And since you’re wondering, the classic New Yorker cover came in fourth overall.

4

Fund on Miers

A number of prominent conservative pundits – among them George Will, Bill Kristol, Ann Coulter, Rush Limbaugh, Michele Malkin, and Charles Krauthammer – have publicly opposed the Harriet Miers nomination. However, the nomination has been supported by some social conservatives including Hugh Hewitt and James Dobson. In today’s WSJ, John Fund suggests one reason why some social conservatives might be supporting Miers:

On Oct. 3, the day the Miers nomination was announced, Mr. Dobson and other religious conservatives held a conference call to discuss the nomination. One of the people on the call took extensive notes, which I have obtained. According to the notes, two of Ms. Miers’s close friends–both sitting judges–said during the call that she would vote to overturn Roe.

If this is accurate, how does it change the calculus? (And how can we gauge its accuracy?)

Perhaps this information brings conservatives on board. If Roe is a trump card, perhaps a guaranteed no-on-Roe overrides concerns about her views in other areas, or about her lack of a paper trail, or even about her SMU sheepskin. On the other hand, perhaps this information only serves to drive away moderate supporters. Does Harry Reid still support her candidacy now?

And is it possible that Dobson has managed to torpedo Miers’ candidacy by his earlier declaration that “I know something secret,” which (perhaps) brought Fund in to investigate in the first place?