When Bush nominated John Roberts to the Supreme Court, he said Roberts “will strictly apply the Constitution and laws, not legislate from the bench.” When Bush nominated Harriet Miers, he said she “will strictly interpret our Constitution and laws. She will not legislation [sic] from the bench.”
Today, Bush nominated Samuel Alito to the high court. Did he repeat the phrase that conservatives love to hear? Not exactly.
“[Alito] has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people.”
So, what happened? Where’s the poll-tested, oft-repeated bumper-sticker slogan Bush knows and loves? Slate’s Bruce Reed explains.
What happened to Bush’s old mantra? First, while we may not know Alito’s shoe size, we know that shoe doesn’t fit. Nobody who tried to overturn the Family and Medical Leave Act can claim that his philosophy is judge-modestly-and-carry-a-blank-slate.
The other reason Bush threw his judicial activism talking points out the window is that he doesn’t need them anymore. On the contrary, he wants the right wing – and the left – to know that this nominee is the conservative judicial activist they’ve been waiting for all along. Bush’s new message: Bring it on.
Forget all that mumbo-jumbo about umpires and judicial restraint, Bush seems to be saying. The fans don’t come out to watch everybody sit on the bench — they want to see a brawl that clears it.
I think this is absolutely right. Bush didn’t tap Alito because he’d be a judge who’d refrain from legislating from the bench; he nominated Alito because he will legislate from the bench. No one believes in that “originalism” stuff anyway, even on the right.
As far as conservatives are concerned, there are lots of policies, laws, and rulings that are in desperate need of a little “touch up.” O’Connor was a swing vote that consistently let them down; Alito is the man to come in and help Scalia, Roberts, and Thomas undo what’s been done. It’s not about judicial humility or deference to precedent; it’s about seizing a rare opportunity.
Bush might have wanted to repeat the “legislating from the bench” this morning, but chances are, he couldn’t say it with a straight face.