But in the Geider/IL dustup over the matter, Chris in two posts implies that Republicans (or at least those who oppose judicial "activism") are being hypocritical. The trouble is that making out the four corners of a hypocrisy charge--to murder a metaphor--can prove particularly difficult, especially because all the defendant need do is make some reasonable distinction between the supposedly hypocritical positions. When you look at someone crying hypocrisy, be on the lookout for a false equivalency: it's the most common logical error.

So, for instance, take Chris's attempt to make the charge:

The problem could be seen as, to put it in terms IrishLaw and others will understand, "adjudicating from the legislature." Sen. Majority Leader Bill Frist and others are taking on the resolution of an individual case -- the judicial function -- as their own role.

I find it unfortunate that IrishLaw would encourage in the Schiavo case the mirror image of the behavior that she has spent the past years in her blog decrying from the right. Separation of powers either is your battle cry or it isn't, but some consistency would be nice.

1. First, Senator Frist has done no such thing. The Congressional subpeona no more "resolves" a case than this blog entry does. It ultimately overrules no judicial decision, though admittedly it may procedurally delay a ruling from taking effect. It does seem silly to subpeona someone who cannot respond, but I know of nothing that puts it outside the bounds of Congress's power. Nevertheless, neither subpeona nor any "hearings" brought by Congress can last forever, and they certainly aren't resolving a case. (Indeed, even today's law merely passes the matter to a different court, not decree a specific resolution.)
   
2. This then gets to the false equivalency of Chris's position. As Irishlaw correctly states, "What conservatives . . . are frequently upset about with regard to 'legislating from the bench' is judges going outside of their authority to reasonably interpret the existing law in order to enact their own policy preferences." Chris seems to imply that conservative are willing to abandon a procedural position when substantive expediency demands it, but he can only make that case if he feels that issuing a subpeona is beyond the authority of Congress. Perhaps that's true, but he's not put anything forward to suggest this. Instead, the implication is that any interference into an individual case, whether within the formal power of Congress or not, is beyond the pale. If Chris wants to make hypocrits of Republicans, surely he should find something that makes them constitutionally impotent.
   
3. Which then gets us to the separation of powers argument. There are several different views of what exactly is partitioned by "separation of powers." Is it different types of authority (adjudicating/legislating/enforcing)? Or perhaps different areas of authority (after all, courts promulgate ethical rules for lawyers that many states maintain are the perogative of the judiciary and not subject to legislative review, even though they look a lot like legislation)? Or is it simply that each branch has the power it can abrogate to itself, and its reach is merely restricted by what the other branches will tolerate?

   If your philosophy about SoP tends more towards the first option, then "adjudicating from the bench" isn't a problem at all, because Congress isn't adjudicating. Chris, in his next post, brings out the hypocrisy charge again by making an alleged inconsistency between attempts to remove jurisdiction on gay marriage from federal courts, but to grant such jurisdiction in Shiavo's case. While this may not be particularly intellectually consistent, it certainly doesn't run into problem with a functionalist conception of the separation of powers. Congress is perfectly permitted to be intellectually inconsistent, so long as it violates no other Constitutional mandate. Indeed, it often is. Don't get me wrong, a neutral principle is prudential, logical, wise policy, and probably politically astute, but it's not a requirement.

"Legislating from the bench," therefore, is not the mirror-image of "adjudicating from the legislature," though of course it is convenient for Chris to pretend so. Whatever the sins and consequences of each, they are different problems facing different constraints. First, "adjudicating from the legislature" would at least require passage of some law resolving a case on the merits, and no such law has been passed yet, nor has Chris pointed to such an attempt.

Secondly, such a vice is constrained by the political process. (As Prof. Leiter points out, this entire affair seems somewhat unpopular, and elections are coming.) A judge who legislates from the bench takes issues out of the hands of the political process. Every time Chris makes some comment about "inscribing hatred into Constitutions", he should remember that judicial legislation leaves this as the only option for political opponents.

I started this by stating that I have no opinion on the substantive merits of the Shiavo case, and this hasn't changed. On the other hand, Professor Bainbridge does, in a post where he struggles through the conflicting policies implicated by Congressional intervention in the Schiavo matter. In the end, he finds himself torn between a dedication to a culture of life and the rule of law.

A liberal (or other, for that matter) who thinks Shiavo should die might just as easily make their way through a policy argument: why respect for the rule of law should trump a culture of life, or why some other normative value should be paramount in this case. I might very well agree with it. But Chris instead takes the easy option of trying to hoist his opponents on dud petards of his own devising.

[1]: YES, I'M JOKING. Come on, folks... CG and IL as an old married couple: you tell me that didn't put a few folks at Moritz in stitches.... Ok, fine, if you must have some self-deprecating humour to soften the joke, you can imagine me as the know-it-all mother-in-law pestering the both of them about how her pseudonym isn't all that fetching and is he really going to bring that tired old argument out in public again...