Tuesday, October 18, 2005
(1:27 PM) | Adam Kotsko:
Legislating from the Bench
I have a question about "legislating from the bench": do judges sit on literal benches when they deliver their opinions? Or the more relevant seating situation might be when they are actually writing their opinions, since that is more "legislation"-like -- do they have benches in their offices, in front of the computer where they type it up? Or, since much of the writing is done by clerks, do they have measures in place that require all seats for clerks to be benches?And then let's look at the actual legislators: do congressional representatives and senators have uniformly non-bench seating? Are all of the seats in the Capitol proper chairs, rather than benches? What if some representatives met in a park and sat on a bench to discuss some kind of controversy? That wouldn't be legislating, properly-so-called, but it would be a significant portion of the legislative process that was taking place on benches. Or what about in waiting areas? Don't people sometimes discuss things in waiting areas? What is the seating like? (I've never been.) Certainly we can't exclude the possibility that legislators would decide which way they were going to vote while sitting on a bench of some description -- a park bench, for instance, or a bench in the lobby of TGI Fridays. Does this somehow invalidate the legislative act?
What if we knew for a fact that judges were always sitting on chairs when they overturned acts of Congress -- would that solve the problem of legislating from the bench? Perhaps that's what "President" Bush needs to do: just eliminate the guesswork and make it a law that there are no benches allowed in our nation's courthouses, particularly where the judge sits to deliberate over, write, and/or deliver decisions. It could even be a bipartisan thing -- Barack Obama could co-sponsor a bill to eliminate the horrible practice of bench-based legislation on the part of judges, helping to end an acrimonious national debate that really ends up helping no one and thereby solidifying his support among the all-important "swing voters."
Then, to help streamline the electoral process and prevent politicians from compromising their positions in order to appeal to "swing voters," we could outlaw swing sets and porch swings.
