Wednesday, October 05, 2005

Is Harriet Miers a Viable Nominee to the Supreme Court?

President Bush’s selection to replace Sandra Day O’Connor on the U.S. Supreme Court has everyone upset. Lobbied by the Left to put a clone of Justice O’Connor on the Court, and by the Right to put another Antonin Scalia in that seat, Mr. Bush apparently did neither, judging by the criticism both sides immediately heaped on him.

At issue is the judicial philosophy of a nominee. At one end of the continuum are Originalists, those who believe that democracy has intrinsic worth, and values stability and predictability in lawmaking. These judges generally believe the text of the Constitution is plain and its meaning clear, in the context of what those words meant at the time the document was drawn up. An Originalist judge would review matters of law, and not allow a court to act as a "super legislature," by imposing "judge-made" law in place of democratically elected officials.

At the other end of the continuum are the Activists, who seek to determine what is "just," not necessarily what is intended by law. In the area of constitutional law, the judicial activist views the Constitution as a living, dynamic document, which must necessarily be interpreted to meet the needs of the current age, and that a contemporary meaning must be applied to the fundamental principles addressed in the Constitution. An Activist judge would not hesitate to use his or her personal feelings, the popular opinion of the people, or even the practice in other countries to fashion new laws and regulations, despite the intent of the Constitution.

The problem with judicial activism is that virtually any element of the Constitution could be discarded if it conflicts with the passions of the day. The rock-solid stability the Framers so carefully placed in the Constitution is gone, and the nation swings in the winds of personal preference and society’s fads, crazes, fashions, trends and whims.

The cultural miasma the nation has been wandering around in since the 60s results from the failure of the U.S. Supreme Court and other federal courts to follow the principles of the Constitution, substituting the shifting preferences society and the personal views of judges for the timeless ideals of the Constitution, and imposing edicts on the people without benefit of the legislative process. Laws imposed from the judiciary are clearly at odds with the stated constitutional function of the Judicial Branch of the federal government.

George W. Bush vowed, “Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. To paraphrase the third occupant of this house, James Madison, the courts exist to exercise not the will of men, but the judgment of law. My judicial nominees will know the difference.”

The essential question is, therefore, “Will Harriet Miers follow the original intent of the Constitution, or will she not?” Taking Mr. Bush at his word, one would be tempted to say “yes.” However, Ms. Miers has no track record from which to gain comfort. What we have are these comments following the announcement of her nomination: "It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts in our society," and that if nominated to the Supreme Court, "I recognize that I will have a tremendous responsibility to keep our judicial system strong and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution."

That statement leads one to believe that Ms. Miers will properly decide cases before the Court, following the intent of the Constitution rather than the fickle winds of the moment. And so far, Mr. Bush has been true to his vow to nominate judges who understand that crucial concept. Perhaps we should trust his judgment.

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Anonymous said...

Ms. Miers will decide cases based on her ideology. That's why she's been nominated. She's a conservative activist.

This is just my hunch.

James Shott said...

Originalism is not an ideology. Limiting one’s rulings to Constitutional intent is not an ideology.

Nor is that activism.

Judges who base their opinions on the clear language and original meaning of the Constitution are Originalists.

Judges who shun their responsibility to base their opinions on the clear language and original meaning of the Constitution, and use instead popular opinion, or substitute their own personal beliefs for Constitutional ideals, or worse, look to see what other countries are doing, are Activists.

Ms. Mier has said she will honor the Constitution, and that is the only acceptable course for a Justice of the Supreme Court.

That is integrity.

Anonymous said...

"Judges who... substitute their own personal beliefs are Activists."

Despite what she says she's gonna do (which are really talking points drawn up by Rove) she is going to decide cases based on what her ultra-conservative case says is wrong or right.

John Roberts- he fits your mold for originalism. I actually didn't have a problem b/c, based on his hearings, I believed he would elevate the law over his personal beliefs.

I don't believe this about Miers. After meeting w/ Karl Rove, James Dobson said he'd vote for her based on info he had but could not share. That scares me tremendously. It says to me Bush knows she'll follow her heart, and not her brain.

I think Miers will turn to be the ultra-conservative's dream come true, if only they'd trust Bush. We can only hope they keep up their scepticism.

Anonymous said...

Hit send too fast there.

To clarify, with John Roberts, I believe that even if he, say, voted against abortion in a case, he would be casting that vote based on his interpretation of the constitution and law. I think Miers would join his vote b/c her church says abortion is wrong.

James Shott said...

I think you wrongly interpret the conservative philosophy. I further think that you regard anyone who expresses faith publicly as a fundamentalist who can't ever get beyond their religious beliefs, and I think that position is most often wrong.

Conservatives regard the Constitution with an almost reverent idealism. They (we) believe that it must be adhered to, and changed infrequently, and only for truly substantial reasons. That is the approach that a conservative would take to the federal bench, that is the position of John Roberts, and I believe that it is also the position of Harriet Miers. We really don't know a lot about her, other than the little we've heard so far. I can understand the frustration of the Right over this appointment. I think Peggy Noonan's piece that I posted today is a very thorough analysis of conservative's questions about her nomination.

There is nothing that we know about Ms. Miers that would lead one to believe that she would rely on her religious beliefs as a basis for judicial rulings. On the other hand, there likewise isn't anything that we know about her that would lead one to believe that she wouldn't, so I can see why you have doubts. Except, that is, that she seems to hold a conservative's judicial philosophy, and like John Roberts, would put personal considerations aside. This is the difference between originalists/textualists and activists. Activists do not put personal beliefs aside, and that is the source of my discontent with Justices like Kennedy, Souter and O'Connor.

Having said all of that, even President Bush, as well as he knows Ms. Miers, doesn't know for sure how she will rule. And, as Peggy Noonan suggested, perhaps Ms. Miers herself doesn't yet know. Perhaps she will change over time. It is all a huge question mark.

History is strewn with federal judges who rule differently than the President who appointed them thought they would rule.

I also think your are too suspicious about Karl Rove's influence. No doubt the President and his advisors have discussed this situation with her, but I think it is wrong to assume that a woman as strongly independent and as smart as Ms. Miers appears to be would need to be told what to say and what not to say.

Anonymous said...

Well, we'll have to agree to disagree. We agree a lot in this way. : )

James Shott said...

Yet again!