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.