It is my personal observation that the phrase "legislating from the bench" is political code-speak for a judicial decision with which someone
disagrees. I've heard it in both directions, and do not put a whole lot of weight to it.
I have at this reading one concern regarding McCain's judicial philosophy:
John McCain's judicial appointees will understand that the Federal government was intended to have limited scope, and that federal courts must
respect the proper role of local and state governments.
While I agree that the Federal government is intended to have a limited role, I believe one aspect of that role is to guarantee enforcement of the
Constitution nation wide.
For example, the 14th amendment to the Constitution guarantees, among other things:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
This equal protection under secular law clause means that it is the job of the Federal Government to ensure that all citizens, without regard to their
state of residence, have the same protections under the law.
This means for example that a state or local community may NOT restrict the freedoms of some groups of citizens. Thus it is not legal for a state to
say people of African descent, to use a real example, are not allowed to vote.
To bring this to a current issue, the same rule applies regarding marriage. McCain appears to be of the philosophy that it is OK to restrict the
ability of people to be married in secular law, based on the relative gender of the participants:
It is reflected in his consistent opposition to the agenda of liberal judicial activists who have usurped the role of state legislatures in such
matters as dealing with abortion and the definition of marriage.
The 14th Amendment clearly states that citizens may not have their rights restricted in this manner.
Whether I or John McCain personally approve of same sex people being married under secular law is not relevant. The US Constitution clearly guarantees
that they can.
So I am a bit concerned that McCain's judicial appointments will, in a manner of speaking, "legislate from the bench" in violation of the 14th
amendment, at least in the case of same sex marriage.