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Wednesday, October 05, 2005

Judgment Must Take Deep Account

JUDGES ought to remember that their office is 'jus dicere', and not 'jus dare'; to interpret law, and not to make law, or give law.
Francis Bacon. (1561–1626)

Have your ever said or done something, turned to the crowd with a smile, and looked around with a sinking stomach realizing the mood was cold as ice?

It happened to President Bush in the Rose Garden today, as he sought to reassure his conservative base that his Supreme Court choice was a person of properly conservative opinions, who would rule in accordance with what they wanted on issues of concern to them. When he announced Harriet as his Supreme nominee to replace retiring Madame Justice Sandra Day O’Connor, his enthusiasm and belief were evident. He knows this woman, has faith in her abilities, and wants her to influence the Supreme Court in a more conservative direction. That is the problem. That is too small a reason, too low a bar. Her lack of a paper trail will avoid a possible filibuster and possible exercise of the ‘nuclear option’, but what is needed for the Court is the finest mind, not the finest friend.

Much of the pro and con bickering about Bush has centered on his agenda for his second term, and whether or not you approve of the war in Iraq. These are budget and policy decisions which will affect the country only as long as Bush remains President. In 2008, no matter which party wins, there will be a clean slate for both foreign and domestic affairs, and another cycle of American history will begin.

But the Court is different. Unlike the Senate, House and Executive, the Court is meant to be an overarching institution to provide continuity and guidance as Congress and the Executive legislate, propose and budget, swinging right and left with the mood of the electorate. Chief Justice John Roberts spoke eloquently at his confirmation hearings about the necessity for the Court to be an impartial arbiter and interpreter of the Constitution, not a political (and therefore temporary) force. The permanence of the Court is what gives it purpose and impact, and why it needs to remain above transitory political ideas.

That is why the reaction against Harriett Miers is stronger from Republicans – and true conservatives – than it is from Democrats. By and large, Democrats have had little problem with legislating through court decision, taking in their stride angry cries about ‘activist judges’. Porcupine has always been puzzled that they have so little faith in their own agenda that they think it needs to be decided by fiat instead of legislated and voted upon. Conservatives – not right-leaning social engineers, but those who espouse conservative principles – understand that nominating a person because you think that in twenty years, they will still carry out your political agenda is wrong. One of the most disgraceful displays in recent times was the Schiavo matter. The law was clear, and indeed, the courts ruled in accordance with that law. Sincere zealots with an agenda were furious, but they were as wrong as those who want to ban mention of intelligent design from schools. That is the political, not the legal.

A new word has come to the fore in discussing the philosophy of justices. What used to be referred to as ‘strict constructionist’ is now called ‘’. Originalist describes those who want legal decisions on the conduct of society to be grounded in legislation, precedent, and constitutional law. To be originalist is to be equally against a court decision in favor of removing religion from public institutions as you would be against decreeing that parents have no right to be informed if their minor child has an abortion. These are matters of belief, driven by politics and social engineering. Too often, ‘privacy’ is used as a code word for ‘abortion, when in reality it is far more important than that. The legal issues of this coming century will center around identity, intrusion and the right to be let alone by an ever more micromanaging government. This applies as much to political correctness mandates as much as it does the PATRIOT Act – you can’t have the government intervene in private lives only for a cause you happen to approve of. They either do, or do not, have that power, and it will be the Roberts Court that will decide privacy issues in the same way the Warren Court decided civil rights.

Conservatives are divided. The social conservatives want the Supreme Court to reverse what they perceive to be legislation from the bench during the Sixties, and impose decisions in line with their opinions. They trust the President as one of them, and are trying to buoy one another up. Philosophical conservatives want a scholar, a person whose intellectual talents have been proven on the bench or as a law professor. Harriet Miers appears to be a talented and hardworking lawyer, indeed a very intelligent one. But nothing in her legal career indicates she has the philosophical and judicial temperament to rise above the topical to the legal.

Ever since the Senate defeat of the eminently qualified Robert Bork, the nomination process has become ever more politicized. That was the reason for the chill in the Rose Garden today as true conservatives reacted to the political agenda implicit in this nomination. Indeed, someday the shoe will be on the other foot. Let’s save politics for Cabinet appointments, and tell the Senate to let the President choose the finest, and not the most expedient, mind.

TTLB Tag: I oppose the Miers nomination.


Blogger Ogre said...

Wow. Quite a bit there. Indeed well said.

The only thing I would add to your wondering about why the liberals are content with using the courts -- they do it because they know in a simply up and down majority vote, their "ideas" will not win, so they can only get their ideas implemented through the courts.

3:13 PM  
Blogger K said...

Like your well thought out post. For more discussion on Miers, whather SCOTUS should be representative or not, etc., check out K-Block.

8:00 PM  
Blogger Doug said...

Very well written and well analyzed. I think you may be my kind of conservative and I worried I might be last of our species.

The importance of an unpoliticized judiciary has a lot to do with the durability of a democratic-republican form of government. As long as we can trust the bench to keep the government from invading the people, we can live with the fact that people whose values we don't trust get elected.

2:01 PM  
Blogger Jamie Dawn said...

Very good post. You are a smartie!
I popped in via Doug's place.
I'm waiting to see how Miers does in the coming weeks.
She better be well prepared, or I fear she will pale in comparison to Roberts.

8:01 PM  
Anonymous Anonymous said...

I liked your comments about Miers and agree that she isn't as bad as many conservatives believe. Senator Specter, who is normally a staunch republican has said that he wants to hear her out and see what her politics are. The only problem is, just like judge Roberts, journalists arn't able to dig up much dirt on her. I feel she's an acceptable compromise on Bush's part, and she will be able to positively influence the Supreme Court for years to come, instead of a heavy conservative who would make a short-lived victory for republicans.

4:48 PM  
Anonymous Eric said...

The problem with Miers is precisely what you talk about. It is clear that Bush nominated her to represent his interests on the court. What conservatives (not neo-cons and religious right) want, what libertarians want, is a justice of constitution principle, who will represent the constitution and the founding principles of our country on the court. A justice who brings an ideology of anything but the construction of the constitution to the court is no better when nominated by a conservative than when nominated by a progressive.

1:27 AM  

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