Legislating from the Right Place

One of my favorite commentators is Victor Davis Hanson, a noted scholar who is, according to the biography on his website, a Senior Fellow at the Hoover Institution, Stanford University, a professor emeritus at California University, Fresno, and a nationally syndicated columnist for Tribune Media Services. I enjoy reading Professor Hanson’s articles for many reasons: they’re well-written, persuasive, generally well-balanced, and – for the most part – I tend to agree with pretty much everything he has to say. You’ll note I said, “pretty much everything.” Irritable curmudgeon that I am, I can even find fault with a distinguished and erudite individual like Professor Hanson that I otherwise greatly admire.

Earlier this week, Professor Hanson wrote an article on his website titled “What’s Wrong with Republicans?” (Even-handed fellow that he is, he followed it up two days later with another article titled “What’s Wrong with Democrats?”) In the article on the Republicans, Professor Hanson wrote, “What the Republicans need is not an abandonment of conservative principles, but a smarter, more articulate defense of even more conservativism, not less.” He then listed some examples, in particular this one, which ground one of my larger-diameter gears:

“Judges? We need constitutionalists, because they alone follow the rules of the legislative branch and what is written in the Constitution, do not turn rarified, laboratory theory into the law that millions must suffer under, and bring respect to the judiciary sorely damaged by aristocratic elitists on the bench.”

One of the most asinine of the conservative mantras is this tired chestnut: judges must not legislate from the bench. This statement, and the opinion on judges expressed above by Professor Hanson, are outrageously unfair to jurists because they point a falsely accusing finger in the wrong direction. I believe the problem is not that judges legislate from the bench; the problem is that spineless, rigidly-parochial elected representatives refuse to do their duty to legislate from the legislature. When action is needed and Congress ducks its responsibilities, someone has to take action…and the judges who try to fill the void are left holding the bag.

Yes, there are some judges who are out in left field. So are a large number of members of Congress. For every judge who is condemned by the right as an “aristocratic elitist,” there is probably one who could justly be condemned by the left as a thickheaded conservative dinosaur – how a judge is viewed is largely a reflection of the political orientation of the observer. The vast majority of our jurists are upright, principled men and women who serve on the bench with dignity and distinction.

Bottom line: don’t blame the judiciary for taking the actions Congress can’t or won’t. Until we get some Senators and Representatives who can grow a spine and move beyond acting like blustering horse’s asses to actually cooperate with each other to get something done, judges will have to carry their water for them.

And take the unfair face shots for doing so.

Have a good day. More thoughts tomorrow.

Bilbo