Top Republican undermines attack on Sotomayor by admitting courts make laws

[PageOneQ]

Source: RawStory

The top Republican (Jeff Sessions) on the Senate Judiciary Committee appears to have undermined a key argument leveled by Republicans against Obama’s Supreme Court nominee.

Namely, he said that the Supreme Court "sets the law" — and in effect legislates from the bench. Republicans have previously used assertions that judges shouldn’t take activist stances, and should cleave closely to established law.

(Video)

Read more: http://rawstory.com/08/news/2009/05/27/sessions-undermines-gop-sotomayor/

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Gazing into my crystal ball I see a flippity-flop coming from Jeff Sessions.

[mopinko]

1. my first thought as well.

let's face it. a lot of these greedy bastards are figuring out that rush, et al are making it hard for them to get a slice of the pie. i suspect a couple more will cross over to the pie side while they are still in demand.

[tocqueville]

2. very strange : I thought it was elected legislative bodies

that made law in a democratic country with separation of powers. Judges job is to enforce them. Not to "invent" them. The problem in the US is that stuff that ought to be law (like abortion etc...) is only a court ruling, which gives the possibility of indefinite challenge, specially when the reference is a 250 years old Constitution (which wasn't made to frame today's issues).

[Tempest]

3. The court's job is not to enforce laws

That's law enforcement's job.

The court's job is to interpret the law and to ensure it is legal and constitutional.

By interpreting the law and ensuring it doesn't conflict with the Constitution, the court is in effect giving a thumbs up or a thumbs down to the law.

[tocqueville]

5. enforce is the wrong term, should have said "apply"

of course the ruling must be constitutional, that is to follow the intentions of the lawmaker (which one can hope has checked before that the law to be voted was constitutional).

but there problem is still there. If it is the judge(s) personal political taste that in the end defines how the law should be interpreted (specially when you refer to "translation" of old texts written in a different context) giving a thumbs up or down for the sentence, you'll get an "ad hoc justice" depending on the current dominating opinion. Which is extremely dangerous in the end.

"the court is in effect giving a thumbs up or a thumbs down to the law"

what's that ? a "judiciocracy" ? Congress (or whatever body) shall make law, not courts. Courts are only an instrument.

obviously the concepts between the EU and the US vastly differ

in many European countries (inclusive France) judges are appointed by their peers to ensure the lack of political influence from politicians.

the equivalent of "Supreme Courts", don't deal with constitutional matters, there is no need because all laws are already constitutional or else they couldn't be voted.

a constitutional council (composed of lawyers and laymen) appointed for ten years (case France) checks the constitutionality before the law is passed. Then judges can apply the law and "interpretation" is seldom required. If there is such (jurisprudence) a new law more adapted to the new cases will be required.

[RaleighNCDUer]

4. The courts not only can but are obliged to determine if laws passed

by the legislature are constitutional. In that way, the courts DO make the law.

If the courts are merely a rubber stamp for the legislature, there is no separation of powers. The courts are a CHECK on legislative overreaching. The legislatures are a CHECK on executive power. The executive power of appointment is a CHECK on partisan courts.

Checks and balances, not separation of powers.

[tocqueville]

6. see post above

the independence of justice is guaranteed by the severed ties between the magistrates and the legislative/executive bodies. But it's still the legislative that MAKE the law (legislative from latin "lex" = law).

I vastly prefer being judged in accordance to a law that is the result of the thinking of my elected peers by representative democracy, than by the whim of a judge "translating" whatever obscure text according to his/hers lecture of it. If the judge is Evangelical I'll get a biblical sentence, if he is marxist I'll be declared enemy of the people.

Applying voted laws doesn't mean being a "rubber stamp". There is the risk for rubberstamping if judges are appointed by politicians or elected in general elections, since it's probable that the independence of the judge will be limited by the pressure of those who put him/her in place. In that case there is no separation of powers, despite all checks and balances.

[Stellabella]

7. They should 'cleave closely to established law', huh?

Then why do they keep squawking over Roe v. Wade?

These effers can't open their mouths without lying one way or the other.