Republicans Should Torpedo Alito, Who "Legislates From the Bench."

[JABBS]

One frequent Republican talking point is that the party favors judges who won't "legislate from the bench."

The phrasing came up again last week, when President Bush nominated 3rd Circuit Appeals Court Judge Samuel Alito to fill the Supreme Court seat held by Sandra Day O'Connor. A backgrounder on Alito at whitehouse.gov says: "Judge Alito does not legislate from the bench or create new policies based on personal opinion."

This is not an isolated bit of phrasing. After Bush nominated John Roberts to the Supreme Court in July, Jan LaRue, chief counsel of the conservative group Concerned Women for America, gave the thumbs-up, saying: "Everything we know about Judge Roberts tells us that he fulfills the president's promise to nominate a judge who will strictly interpret the Constitution and not legislate from the bench."

And last year, just before the presidential election, conservative writer David Limbaugh wrote a column, "Kerry Wants Judges Who'll Legislate from the Bench," in which he said: "Since conservatives abhor judicial activism, it is no accident that most "originalist" judges are conservatives -- though they don't believe in "legislating" their ideology from the bench."

But someone forgot to give that memo to Sen. Tom Coburn (R-OK).

Speaking on the Nov. 6 edition of NBC's Meet the Press, Coburn and host Tim Russert had this exchange about Judge Alito:

RUSSERT: Let me ask you about another decision. And the Brady Center to Prevent Gun Violence put this out last night. This is from Jim Brady, White House press secretary for Ronald Reagan who was shot in the assassination attempt: "Judge Samuel Alito's dissent in U.S. v. Rybar ... argued that federal restrictions on machine gun possession amounted to an unconstitutional of congressional power under the Commerce Clause. ... his opinion attempted to erect arbitrary hurdles to congressional efforts to reduce the availability of machine guns to the criminal element."

These aren't handguns or hunting rifles. These are machine guns. Do you believe that Congress has the right to restrict the sale and transfer of machine guns, or do you think that Judge Alito's correct that Congress should not be interfering in that?

COBURN: No, I think we probably have the right to do it. But I don't think a judge has the right to make that decision. I think Congress -- and that brings us back to the whole point. Those aren't decisions judges should be making. Those are decisions that legislators should be making. And that's how we've gotten off on this track is, that we allow judges to start deciding the law, new law, rather than interpret the law that the Congress -- what the -- what should have happened in that case is this an area that's up for debate and needs to go back to Congress. If Congress decides that, then it should be there.

RUSSERT: So Judge Alito was wrong?

COBURN: Sure.

RUSSERT: And he was legislating.

COBURN: Sure.

***

At this point, Coburn must have realized that he had just said the exact opposite of the Bush Administration's talking point on Alito. So, naturally, he tried to spin.

RUSSERT: So conservative jurists or strict constructionists can also legislate.

COBURN: Well, I'm not sure that's what he is yet. You've assumed that. I haven't made that decision on what he is or any ...

RUSSERT: I'm not making any judgment. I'm ...

COBURN: Well, you just said, "A strict constructionist can legislate." I'm sure that we all can, and nobody's pure in any way.

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Unfortunately for Republicans, this isn't the only example of Alito "legislating from the bench."

In Chittister v. Department of Community and Economic Development, a 2000 case, Alito "legislated from the bench," by denying Family and Medical Leave Act protections to a Pennsylvania state employee. Essentially, Alito found that Congress had exceeded its power in passing the law -- the very definition of "legislating from the bench."

The Supreme Court, by a 6-3 margin, overruled Alito's findings when it upheld Family and Medical Leave Act provisions for a state employees in the 2003 case of Nevada Department of Human Resources v. Hibbs.

So, why do Republicans support Alito? If they don't want a justice "legislating from the bench," shouldn't Republicans torpedo Alito's nomination as quickly as they ex-nayed the nomination of Harriet Miers?

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In spite of these examples -- and I imagine there are likely others -- Democrats face an organized spin campaign from Republicans. A host of Republican Senators released statements praising Bush's choice of Alito. Among the reasons? He doesn't "legislate from the bench."

Some Republicans took things a step further.

According to a Nov. 3 story in The Hill, one of the Republican candidates hoping to have a chance to battle Sen. Ben Nelson (D-NE) next November made Alito an issue. And watch how he drops the GOP spin line:

"I think if Senator Nelson is not supportive of putting judges on the bench who will not legislate from the bench it will be very important,” Don Stenberg, a former state attorney general.

And there you have it. Accept the spin line as fact, or else. For some Republicans, the facts of Alito's career aren't nearly as important.

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This item first appeared at Journalists Against Bush's B.S.