he term "legislating from the bench" is frequently used but rarely explained. In the 2008 presidential debates Sen. John McCain (R-Ariz.) promised he would not appoint judges who legislate from the bench. But as Bruce Peabody, author of Legislating from the Bench, a Definition and a Defense, told the HPR, "I don't think we can know what he means … it's hard to get much intellectual traction from the way politicians use the term." "Legislating from the bench" implies a justice system comprised of two types of judges: those who merely interpret law and those with political agendas who create law.
This distinction, however, covers up the fact that vague language and political and societal change necessitate that law be created through legal interpretation. A.E. Dick Howard, professor of Constitutional law at the University of Virginia, told the HPR that ambiguous phrases found in the Constitution such as "due process of law, equal protection of law, and cruel and unusual punishment" require interpretation to be applied. The interpretations of these phrases must change as unforeseeable circumstances arise, making the courts an avenue for interpretation to substantially affect law. Accordingly, the phrase "legislating from the bench" is at best misleading, and analysis of its historical application reveals its necessity.