The Volokh Conspiracy - Legislating From the Bench:

Monday's White House press briefing with Scott McClellan had a pretty amusing exchange with reporter Helen Thomas about just what the White House means when it says that Harriet Miers won't "legislate from the bench." Thomas tried to push McClellan to be more specific, and McClellan did his best to avoid saying anything substantive. Here is the exchange:

Q The President doesn't want anyone who would legislate from the bench. Can you define that a little bit more? For example, is Brown versus the Board of Education of Topeka, Kansas — was that legislating? Was Miranda legislating? Was the right to a lawyer legislating from the bench?

MR. McCLELLAN: These are great questions. I'm not the one who's going through the confirmation process. These are questions that will come up in the confirmation hearing process, I imagine. I'm sure the —

Q But I want to know what you are saying. You keep saying —

MR. McCLELLAN: I'm sure that members of the Senate —

Q — you can't legislate from the bench. Would all of those rulings been wrong under your —

MR. McCLELLAN: And what we mean by it is that she is someone who will strictly interpret our Constitution and our laws, that will not try to make law from the bench. That's what the President means by it.

And that means that she is someone who will look at the facts of a case and apply the law, what the law says, and that's what the American people expect in a Supreme Court justice. And that's what the President has always looked for. He's nominated more than 200 people to the bench. And Harriet Miers has been very involved —

Q Is Roe versus Wade the law —

MR. McCLELLAN: — has been very involved in that process.

Now, in terms of cases that could come before the Court, I don't think anyone has an expectation that a future judge should answer a question about a case that could come before that Court. A judge should be fair and open-minded and look at the facts of a case and then apply the law.

What you heard from these Supreme Court justices just now was that Harriet Miers is someone who is very fair-minded, and she is someone who will look at the facts and apply the law. And these are all questions about legal issues that she will be answering.

Q But you bring them up. I mean, you —

MR. McCLELLAN: That's right. And she looks forward to —

Q — keep talking about legislating from the bench. Does that mean that nothing changes in 200 years?

MR. McCLELLAN: Of course not, Helen. She will be talking about these issues when she goes before the Senate Judiciary Committee to answer questions. And she looks forward to answering their questions, and we look forward to the American people seeing her before the Judiciary Committee, where she will have an opportunity to discuss these issues and more.

	[Orin Kerr, October 18, 2005 at 12:28am] Trackbacks Legislating From the Bench: Monday's White House press briefing with Scott McClellan had a pretty amusing exchange with reporter Helen Thomas about just what the White House means when it says that Harriet Miers won't "legislate from the bench." Thomas tried to push McClellan to be more specific, and McClellan did his best to avoid saying anything substantive. Here is the exchange: Q The President doesn't want anyone who would legislate from the bench. Can you define that a little bit more? For example, is Brown versus the Board of Education of Topeka, Kansas — was that legislating? Was Miranda legislating? Was the right to a lawyer legislating from the bench? MR. McCLELLAN: These are great questions. I'm not the one who's going through the confirmation process. These are questions that will come up in the confirmation hearing process, I imagine. I'm sure the — Q But I want to know what you are saying. You keep saying — MR. McCLELLAN: I'm sure that members of the Senate — Q — you can't legislate from the bench. Would all of those rulings been wrong under your — MR. McCLELLAN: And what we mean by it is that she is someone who will strictly interpret our Constitution and our laws, that will not try to make law from the bench. That's what the President means by it. And that means that she is someone who will look at the facts of a case and apply the law, what the law says, and that's what the American people expect in a Supreme Court justice. And that's what the President has always looked for. He's nominated more than 200 people to the bench. And Harriet Miers has been very involved — Q Is Roe versus Wade the law — MR. McCLELLAN: — has been very involved in that process. Now, in terms of cases that could come before the Court, I don't think anyone has an expectation that a future judge should answer a question about a case that could come before that Court. A judge should be fair and open-minded and look at the facts of a case and then apply the law. What you heard from these Supreme Court justices just now was that Harriet Miers is someone who is very fair-minded, and she is someone who will look at the facts and apply the law. And these are all questions about legal issues that she will be answering. Q But you bring them up. I mean, you — MR. McCLELLAN: That's right. And she looks forward to — Q — keep talking about legislating from the bench. Does that mean that nothing changes in 200 years? MR. McCLELLAN: Of course not, Helen. She will be talking about these issues when she goes before the Senate Judiciary Committee to answer questions. And she looks forward to answering their questions, and we look forward to the American people seeing her before the Judiciary Committee, where she will have an opportunity to discuss these issues and more.