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Originally Posted by mcgeedo
dc, you are correct of course that the two justices likely to be replaced are already Left-leaning. But their replacements can be as radically Liberal as Obama and Pelosi might want, and certainly won't have any compunctions about legislating from the bench. The net shift will be to the left, and there won't be any stopping it in the confirmation process, will there?
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How can the next shift be more to the left of Ginsburg, who the conservatives shout is an "ultra liberal"? or even Stevens.
No, by most objective standards, Obama appointments would keep the same general balance as the current Court...described by most observers as four conservatives, two centrists and three liberals...if labels are to be applied.
And Pelosi has no role in the process. The Senate, not the House, advises and consents. Its just another cheap shot to play he "pelosi" card.
If by legislating from the bench, you mean judicial activism in overturning laws enacted by Congress....its the conservatives on the court who do it more frequently. This is from the Rhenquist court:
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Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.
Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.
We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.
So Who Are the Activists? - New York Times
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Liberal justices as the judicial activists who legislate from bench is another one of those myths that conservatives perpetuate.