Judicial restraint this nomination is not...

It has always seemed strange to me that although it is usually conservatives and the Republican party that use trite phrases like "legislate from the bench" and "judicial restraint" and "judicial activism" - yet if you do an analysis of what Justices strike down congressional laws the most, it is as follows:

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 %

Amazing - it is the very conservatives who are so loved for their judicial restraint that are the first to invalidate congressional law. Shocking, huh?

Actually, no - it's just like any other political manipulation, the Right-wing likes to use these buzz-words such as "legislate from the bench," to scare their base...when in all reality (when you examine the facts - I know, I know what an annoyance) they are the very side that wants to see judges "legislating" from said bench.

Judge Sam Alito seems like he will fit right in at the top of that list. Dahlia Lithwick has a great column up at Slate.

Best of all for Bush's base, Alito is the kind of "restrained" jurist who isn't above striking down acts of Congress whenever they offend him. Bush noted this morning: "He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people."
Except, of course, that Alito doesn't think Congress has the power to regulate machine-gun possession, or to broadly enforce the Family and Medical Leave Act, or to enact race or gender discrimination laws that might be effective in remedying race and gender discrimination, or to tackle monopolists. Alito thus neatly joins the ranks of right-wing activists in the battle to limit the power of Congress and diminish the efficacy of the judiciary. In that sense Bush has pulled off the perfect Halloween maneuver: He's managed the trick of getting his sticky scandals off the front pages, and the treat of a right-wing activist dressed up as a constitutional minimalist.

See, the Right doesn't seem to cry so much about judicial activism when they agree with it. Essentially that vacuous phrase - "judicial activism" - seems to mean simply that you disagree...rigorous legal analysis need not appear.

Another interesting piece from Slate is entitled: Why President Bush stopped pretending to be against judicial activism. Oh so true.

Today, in nominating Alito, the President offered a much more limited view of the limits of judicial activism: "He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people." No mention of the Constitution or strict constructionism. No false judicial modesty that the new guy will sit quietly and behave himself on that bench.
What happened to Bush's old mantra? First, while we may not know Alito's shoe size, we know that shoe doesn't fit. Nobody who tried to overturn the Family and Medical Leave Act can claim that his philosophy is judge-modestly-and-carry-a-blank-slate.
The other reason Bush threw his judicial activism talking points out the window is that he doesn't need them anymore. On the contrary, he wants the right wing—and the left—to know that this nominee is the conservative judicial activist they've been waiting for all along. Bush's new message: Bring it on.

Clearly, Judge Alito is not a proponent of judicial restraint. Clearly, Bush and the Right do not want a judge on the Court who models judicial restraint.

I tend to be a little old fashioned, but I believe in true judicial restraint, true judicial modesty. I believe that for the most part, Judges should get out of the way of the people. I make no secret of the fact that my "favorite" current Supreme Court Justice is Stephen Breyer - whom I also consider the true intellect of the current Court. Breyer is the epitome of the modest or restrained jurist. Justice Breyer seems to sit with the understanding that as long as (a) the congressional body has the authority to act as they are acting; and (b) that action is not violating a fundamentally protected right, that congressional action - the action of those directly accountable to the people - should be respected by those whom are not directly accountable to the people (federal judges).

Justice Breyer is the model of the non-activist, restrained, modest, non-legislating jurist...

but something tells me he's not what the Right is looking for. No, they want an activist, they want a legislator - just one who legislates what they want.

Looks like they got their wish.