usa today had never weighed in editorially on a presidential election until late last month, when it declared donald j. trump <u+201c>unfit for the presidency.<u+201d> as is its general practice, the newspaper<u+2019>s editorial board offered space to present an opposing view. these opposing views are often worth reading for their entertainment value. last week, in response to the main editorial deploring the senate<u+2019>s refusal to act on president obama<u+2019>s judicial nominees, senator david perdue , a georgia republican who sits on the judiciary committee, wrote the reply, titled <u+201c>i say we are doing our job.<u+201d> really? and what job is that, exactly? the reply to the anti-trump editorial came from gov. mike pence of indiana, the republican nominee<u+2019>s running mate, under the headline <u+201c>donald trump is ready to lead.<u+201d> his essay contained this line about the supreme court: <u+201c>donald trump will appoint men and women who will strictly construe the constitution and not legislate from the bench.<u+201d> no points for originality, that<u+2019>s for sure. amusement value? not immediately obvious. <u+201c>strict construction<u+201d> and judges who won<u+2019>t <u+201c>legislate from the bench<u+201d>: these are among the most trite and tired lines in the republican playbook. strict construction goes back at least to richard m. nixon<u+2019>s campaign against the warren court. the <u+201c>legislating from the bench<u+201d> trope, my focus here, emerged later as part of the reagan administration<u+2019>s attack on <u+201c>activist judges.<u+201d> president ronald reagan<u+2019>s administration packed the courts with young movement conservatives who, its judge pickers maintained, would simply follow the law and not make law. (it didn<u+2019>t turn out that way, but that<u+2019>s a different story.) the image of the judge as a legislating boogeyman is familiar to anyone with the patience to have watched republican senators perform their roles, back when there used to be supreme court confirmation hearings. in one of far too many examples, senator orrin hatch, a utah republican, praised president george w. bush for selecting john g. roberts jr., <u+201c>the kind of judge that all of us want <u+2014> someone committed to applying the law impartially rather than legislating from the bench.<u+201d> (during sunday night<u+2019>s debate, i expected donald trump to respond to the supreme court question by invoking the <u+201c>no legislating<u+201d> slogan, but he got caught up instead in scalia hagiography and in a rant about the second amendment.) so my first response to mike pence<u+2019>s usa today effort was to mutter, <u+201c>oh, please, not again,<u+201d> and turn the page. but even as the prospect faded that donald trump would ever be in a position to nominate federal judges, i couldn<u+2019>t quite put legislating from the bench out of my mind. it was like one of those annoying <u+201c>earworms,<u+201d> snippets of tunes that get stuck in your head and replay themselves endlessly. it occurred to me: it<u+2019>s a laugh line after all. what governor pence and the republican campaign officials who drafted his defense of his running mate obviously don<u+2019>t realize is that legislating from the bench is now obsolete as an epithet. it<u+2019>s so 1980s. the trump crowd just didn<u+2019>t get the memo, so they don<u+2019>t realize that what was once despised on the political right is now celebrated. the judge as boogeyman has become the judge as savior <u+2014> at least when intervening to block executive branch action or to strike down a regulatory requirement in the name of free speech. i knew in an abstract way that this was taking place. it was obvious to anyone watching republicans scour the country to find just the judge willing to strike down the obama administration<u+2019>s deportation-deferral program or its extension of civil rights protection to transgender individuals. but the full dimension of the ideological flip came home to me after a column of mine back in august examined recent appellate and supreme court decisions on voting rights and abortion and praised the judges for calling out legislatures that use phony rationales (women<u+2019>s health or voter fraud) to suppress individual rights. the column was picked up in the conservative and libertarian blogosphere, where it was treated with a kind of feigned delight. a post on the conservative federalist society<u+2019>s blog began this way: <u+201c>it is not often that a progressive columnist offers full-throated praise for judicial decisions to invalidate regulations that are said to be necessary to protect public health and safety. and yet the new york times recently presented its readers with that rare spectacle.<u+201d> of course the author of this post was being more than a bit ironic: the headline, <u+201c>scrutiny for me, but not for thee,<u+201d> is intended to suggest that my own analysis was suspiciously selective in singling out judicial decisions i agreed with and ignoring the rest. maybe. i<u+2019>ll choose to take it as friendly irony, and as an invitation to deeper inquiry into a fascinating development. i read with interest a new report from the center for judicial engagement, a project of the libertarian institute for justice. it assessed the courts<u+2019> performance during the past year, giving examples of what it labeled judicial <u+201c>engagement<u+201d> (good) and judicial <u+201c>abdication<u+201d> (bad). the report<u+2019>s introduction explained: <u+201c>sadly, in many areas of law, genuine adjudication is the exception rather than the rule<u+2026> the habit of broadly deferring to the government is difficult for judges to shake<u+2026> our jurisprudence is thus shaped by the institutionalized abdication of judicial duty.<u+201d> there<u+2019>s a good deal to say about this, starting with the fact that the judiciary <u+2014> the third branch <u+2014> of course is itself an integral part of the government, albeit the unelected part. so judiciary-versus-government may not be the most useful framework for examining the boundaries of the judicial role. and not all judicial interventions are created equal <u+2013> that<u+2019>s where the debate really lies. nonetheless, something is clearly happening. the notion of legislating from the bench was never more than a political slogan. now it<u+2019>s simply fatuous. that doesn<u+2019>t mean that it won<u+2019>t be heard at the next senate confirmation hearing. it<u+2019>s easier for some senators to accuse judges of legislating from the bench than to do any actual legislating themselves. follow the new york times opinion section on facebook and twitter (@nytopinion), and sign up for the opinion 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let<u+2019>s legislate from the supreme court bench
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