Posted on 10/13/2005 11:26:56 AM PDT by quidnunc
President Bush has divided conservatives with his choice of a “stealth” nominee for the Supreme Court who has no experience grappling with constitutional issues.
But the conservative claim that we have insufficient guarantees that Harriet Miers is sufficiently conservative also reflects a conservative version of the kind of misunderstanding of the judiciary that liberals so frequently make. A plausible argument could be made that the greatest challenge in contemporary American politics is the restoration of judicial integrity. The only means for doing so is to appoint judges to the federal courts who are committed to applying the law as intended rather than how they would like it to be.
Whereas the primary source of corruption of legislators is a tendency to too readily embrace fickle public opinion out of fear of losing the next election, the primary source of corruption for unelected judges is the temptation to inject their personal biases and prejudices (“ values” ) into their decisions. And just as the solution to legislative corruption lies in the willingness of legislators to buck shortsighted public opinion in favor of farsighted prudence, the solution to judicial corruption lies in the willingness of judges to restrain themselves from usurping legislative functions.
Since presidents bear no responsibility greater than honoring their pledge to uphold the Constitution, Bush has no responsibility more awesome than to restore the integrity of that Constitution by appointing judges of proper temperament and modesty. The best measure of such qualities is found in a judge’s willingness to faithfully apply laws he disagrees with.
Talk of “conservative” or “liberal” judges betrays a deep ignorance of the proper function of a judiciary. The liberal or conservative result of a judicial decision should reflect not the liberal or conservative prejudices of judges but the intention and content of the particular statutes or constitutional provisions they apply.
Viewed within such a context, there is nothing inherently conservative about a strict-constructionist approach to the Constitution or inherently liberal about judicial activism, unless one assumes, unjustifiably, that the Constitution and the rule of law it represents are inherently conservative things and that conservatives are somehow less capable of distorting constitutional provisions to achieve conservative goals than liberals are of distorting them on behalf of liberal ones.
There exists not so much a distinction between originalist and activist approaches to jurisprudence as a distinction between appropriate and inappropriate, between approaches that demonstrate proper respect for the rule of law and those that don’t. The extent to which we use terms like conservative, liberal and moderate to describe judges reflects the extent to which politics has corrupted judging.
Justice Antonin Scalia illustrated much of this confusion when he recently wondered, “What in the world is a moderate interpretation of a constitutional text ? Halfway between what it says and what we’d like it to say ?”
Judicial integrity, then, is found in the notions of impartiality and neutrality. Judges, including John Roberts and, if confirmed, Miers, will always tilt to one direction or another in their personal politics, but good judging shouldn’t. And because judges will have a difficult time purging their politics from their rulings doesn’t mean they shouldn’t try.
The argument that the elastic language of the Constitution guarantees differences in interpretation is true, but only up to a point, and that point is usually where personal political agendas and the broader ideological passions that drive them enter the interpretive picture.
Ironically, an exquisite example of precisely what judges should avoid was provided last week by an allegedly liberal justice, Stephen Breyer, who claimed in a television interview that the goal of fostering a “participatory democracy” was more important in his judicial reasoning than fidelity to the actual text of the Constitution or the intentions of those who crafted it.
Properly translated, what this means is that Breyer judges on the basis of his own personal value system at the expense of the Constitution he is sworn to uphold, and then justifies it by reference to abstract themes (“participatory democracy” ) that lack legal rigor and meaning to anyone but Breyer.
From such stuff it is but one small step to “emanations from penumbras.”
As such, the central question regarding Miers and her qualifications isn’t so much whether she has the aptitude to accurately interpret constitutional provisions — the stuff is hardly nuclear physics — but whether she has a sincere desire to try.
I disagree. If previous Supreme Court decision have bollixed up the law then a justice has the duty to revisit, reconsider and if necessary overturn those decisions.
The problem with Miers has more to do with qualifications, crony-ism and patronage, IMO.
What confusion? Conservatives just expect the Constitution to be interpreted for what it says. Pretty straightforward. The only confusion seems to be with the author.
The entire article is one big phony straw man attack.
Conservatives just want a judicial candidate who will interpret the constitution the way it is written.
Bush passed over a large stable of candidates with a documented strict constructionist history, for a candidate who has no documented history of what her constitutional philosophy is at all. In doing so, Bush tossed a hand grenade on the cohesion and morale of the Republican party.
I still want to know her feelings on supreme court decisions based on foreign law. Or is that also taboo?
LOL! How true that is!
Great article! Thanks for posting it!
Nothing ironic about it. That is how liberal judges think, their values trump what the Constitution says. That is an activist judge vs. one who will strictly interpret the Constitution. This moron seems to prove exactly the opposite of what he says he does.
No, its not taboo. And it is valid point made without accusations or slurs. I just wish more people would ask these questions like you without their emotions getting in the way.
are we having fun yet?
I have asked questions numerous times without slurring Miers but have constantly been slurred by Miers supporters. Sometimes I wonder what threads people are reading.
I disagree. If previous Supreme Court decision have bollixed up the law then a justice has the duty to revisit, reconsider and if necessary overturn those decisions.
Read that first quote carefully: the reference is to laws not Supreme Court decisions.
"Bush tossed a hand grenade on the cohesion and morale of the Republican party."
I have stated that exact thing on several different articles. I just don't understand the reasoning for his choice.
7 replies and no one is defending the nomination yet. This is a new record.
"7 replies and no one is defending the nomination yet. This is a new record."
jsut wait, FRiend
Specifically, we do NOT want another Sandy Day O'Connor,
another David Souter,
another Anthony Kennedy!
Seeing as how McCain-Feingold, the education bill, the various farm bills, the prescription drug bill, faith-based initiatives...indeed 98% of the entire U.S. Code and its accompanying bureaucracy is unconstitutional...it seems that this President's (and really every President since Grover Cleveland's) oath to uphold the Constitution is not worth damn...with a very few exceptions, no elected federal official is really concerned with adherence to the Constitution's limits on federal power
That seems to be true of the Supreme Court. They can change previous court rulings.
I'm not sure that lower courts are supposed to counter higher court rulings....but...what the hey...just do it and live with the fallout.
If an idiotic ruling's been made, then unrule it.
IMHO any Justice who uses foreign law to reach a result at the expense of our own Constitution and Laws should be impeached for violating their Oath of office. Nominee Miers should be asked that question point-blank, and if she or any other nominee did not strongly state that foreign law has no place in American Jurisprudence, that disqualifies the nominee even if they went to Harvard.
The exception to this would be common law concepts that derived from English Law prior to independence. These are well-established and perfectly OK.
Language is such a tricky thing, especially when it comes to labels. The terms "liberal" and "conservative" mean different things in different contexts. The most egregiously incorrect usage is in the political context -- today's "conservatives" actually hold to many of the most liberal ideas imaginable, in the classical sense, such as the value of the individual over that of the state. (And by being proponents of state-enforced groupthink, today's "liberals" are very classically conservative.)
In a legal context, "conservative" and "liberal" do not mean the same things as their political counterparts. A "conservative" judge rules exactly as the author suggests that they should in the quote above. A "liberal" judge puts law and context aside to come up with a ruling that matches a preferred result (this type is often referred to as an "activist" judge).
When I say I want a "conservative" judge, I mean it from the legal context, not the political one. I do not want a politically conservative activist, because that plays into the hands of the theory that the law is subject to the whims of the ideology currently in power at the time of the judge's appointment. If a judge applies the law and the Constitution properly, then the law will take care of itself through the proper legislative channel, not by judicial fiat.
cronyism is not a "problem". Cronyism is an explanation for why a president might appoint an unqualified judge.
Being a crony is not a disqualifying factor.
Patronage is little more than another way of saying crony.
The issue with Miers is threefold, NOW THAT SHE HAS BEEN NOMINATED:
1) Does she posess the capabilities to be a competent justice.
2) Does she hold a strict constructionist view of constitutional jurispudence
3) Does she possess the character and temperament to be a good justice, and to remain a good justice over her career.
Her views on issues only matters if she will be an activist. And if she will be an activist, I don't want her even if she agrees with every position I hold. NO ACTIVISTS.
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