"Legislating from the Bench"
President Bush has said that he favors judges who will not "legislate from the bench" (hereinafter LFTB), and both Chief Justice Roberts and Harriet Miers have been praised as people who will refuse to LFTB. But is this a useful category? What does it mean? Consider the following possibilities:
1. Bipartisan restraint. Those who do not LFTB will vote to uphold the decisions of the elected branches unless those decisions are plainly and unquestionably unconstitutional. Such judges favor bipartisan restraint. For example, they will permit affirmative action programs; allow restrictions on abortion and same-sex relationships; and uphold regulations that greatly diminish the value of property (which were probably acceptable at the time of the founding, because the founders appeared to see "takings" as "physical invasions" of property, not as diminutions in the value of property). Bipartisan restraint has an honorable pedigree; Oliver Wendell Holmes generally favored it and Chicago's own Adrian Vermeule has a superb forthcoming book arguing on its behalf. But no current judge favors this approach, and it is most doubtful that President Bush means to endorse it. (A quiz question: In recent years, which justices have voted most often to strike down acts of Congress? Answer: Justices Scalia and Thomas, whom the President has singled out for special praise.)
2. Textualism. Maybe a judge will not LFTB if she follows the text of the Constitution. The problem is that almost all judges follow the text of the Constitution. (An exception: The first amendment says that "Congress" shall make no law abridging the freedom of speech; almost everyone agrees that the protection of speech applies even if the President or the courts are imposing the restriction. There are other exceptions, but they're rarely where the action is.) If a judge doesn't LFTB if she follows the Constitution's text, then almost no judge LFTB, and the category is unhelpful.
3. Originalism. A judge might refuse to LFTB if she follows the original understanding of the Constitution's ratifiers. That's one view, of course, but Chief Justice Roberts has disavowed originalism. Will he LFTB? In any case originalists would have to make quite major changes in existing understandings. They would abolish the general right of privacy, for example, and they would also have to permit the national government to discriminate on the basis of race and sex. (The equal protection clause applies only to the states.) If they are faithful originalists, dedicated to history, they would probably allow states to establish official religions. They would also permit sex discrimination at the state level; some of them would strike down the Federal Communications Commission and key parts of the Clean Air Act and the Occupational Safety and Health Act. Maybe they're right, but is all this what it means not to LFTB?
4. No new rights. Maybe a judge refuses to LFTB if she doesn't want to create new rights, not currently well-established. On this view, a judge who won't LFTB won't create (for example) a right to same-sex marriage. Maybe this is a modified version of bipartisan restraint, and I think that it might be close to what President Bush has in mind. But if this is the right understanding of LFTB, will judges who don't want to LFTB a) allow campaign finance restrictions, b) permit affirmative action programs, c) allow gun control restrictions, d) permit regulatory takings, and e) allow restrictions on commercial speech? In at least some of these cases -- maybe all -- a judge who intervenes will be establishing new rights, in the sense that she will be going beyond what constitutional law now recognizes. My hunch is that those who want judges not to LFTB don't want judges to follow all of (a), (b), (c), (d), and (e).
To know whether a judge is LFTB, or instead interpreting the Constitution, we need to identify the right theory of constitutional interpretation. Unfortunately, the document itself specifies no such theory; it doesn't, for example, say that judges should follow originalism. Of course judges should not LFTB, but to say that a judge will not LFTB tells us little about what she will do.
When a nominee is praised for refusing to LFTB, some kind of code, I think, is being used; the beauty of the code is that no one can be certain how exactly to translate it.