Politics vs. Judging (Why requiring proof of Miers' conservatism is just plain wrong!)

The Arkansas Democrat-Gazette ^ | October 13, 2005 | Bradley R. Gitz

[BenLurkin]

"The best measure of such qualities is found in a judge’s willingness to faithfully apply laws he disagrees with."

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.

[Always Right]

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 ?”

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.

[Mount Athos]

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.

[cripplecreek]

I still want to know her feelings on supreme court decisions based on foreign law. Or is that also taboo?

[Bigun]

From such stuff it is but one small step to “emanations from penumbras.”

LOL! How true that is!

Great article! Thanks for posting it!

[Always Right]

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.

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.

[frogjerk]

I still want to know her feelings on supreme court decisions based on foreign law. Or is that also taboo?

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.

[flashbunny]

are we having fun yet?

[Always Right]

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.

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.

[Redbob]

"The best measure of such qualities is found in a judge’s willingness to faithfully apply laws he disagrees with."

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.

[David Isaac]

"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.

[Stellar Dendrite]

"7 replies and no one is defending the nomination yet. This is a new record."

jsut wait, FRiend

[Redbob]

"Conservatives just want a judicial candidate who will interpret the constitution the way it is written."

Specifically, we do NOT want another Sandy Day O'Connor,
another David Souter,
another Anthony Kennedy!

[Irontank]

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.

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

[xzins]

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.

[You Dirty Rats]

I still want to know her feelings on supreme court decisions based on foreign law. Or is that also taboo?

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.

[kevkrom]

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.

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.

[CharlesWayneCT]

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.

[PoppyRocks]

When the Supreme Court ruled on the Florida electoral issue in 2000 few Democrats were able to believe it was anything more than a right-wing power grab.

With so many decisions coming from the same 5 to 4 split, it is reasonable to believe that the justices are following objective legal analysis or is it more likely that the Constitution is a Rorschach test where all the justices see what they want to see?

Is judicial objectivity really possible?