Miers Next in Line…

With the “Kick-Me” sign

Written by JB Williams



The blogoshpere is all abuzz over President Bush’s latest Supreme Court nominee Harriet Miers. Two things are obvious about this nominee. First, nobody knows much about her. Second - that won’t stop anyone from gunning for her.


In a Representative Republic of, by and allegedly for the people, governed by the Constitution of these United States, is there anything more important than how the words of that Constitution are interpreted, applied and enforced?


The public debate over who the next Supreme Court Justice should be is often argued in terms of democrat vs. republican, liberal vs. conservative, male vs. female. But the choice has little to do with any of these things. It is, or it should be, based on strict legal interpretations vs. broad ideological interpretations. Applying and enforcing laws and the constitution as written vs. legislating from the bench based on ones ideologically driven imagination.


Since ideologies vary, it should be in every Americans best interest to have a Supreme Court that can look at the Constitution and existing laws and see only that which is certain, that which is written. There’s no real need to imagine what the framers might have meant when we can simply read what they meant in what they wrote. Anything they didn’t put in writing doesn’t matter, or they would have put it in writing.


It should go without saying that American’s basically have the right to do anything except that which is specifically prohibited by law, provided that this law is not specifically unconstitutional. The courts should never be in the business of making law or amending the constitution via judicial fiat. Yet that is exactly what some Americans, namely democrats, seek…


EXAMPLE: The First Amendment directly protects free speech, specifically, free religious, political and press speech. However, broad liberal (atheist/agnostic) ideological interpretations of this Amendment have caused many to seek the hidden meaning behind the words never written in that Amendment. To support their desire for a completely secular society, they search through Jefferson’s personal writings in an attempt to find an unwritten intent that better suits their own political agenda for America. Bingo, we have a “separation clause”.


Well, according to Bush, "She [Harriet Miers] will strictly interpret our Constitution and laws. She will not legislate from the bench." In her own words, nominee Miers offered "If confirmed, I recognize I will have a tremendous responsibility to keep our judicial system strong and to help insure the court meets their obligations to strictly apply the laws and Constitution."


Republican consultant Greg Mueller said, "There's every indication that she's very similar to Judge Roberts - judicial restraint, limited role of the court, basically a judicial conservative."


Yet Bloggers and old media talking heads alike were poised to pounce on whoever Bush nominated to replace outgoing alleged “swing” justice, O’Connor. The fact that they know little about Miers is no reason not to pounce.


Conservatives were quick to fire based on her reported political contributions to the DNC in 1987 and 88, and show concern over the fact that she does not have the judicial record of a Scalia or Thomas. Liberals were even faster to fire at her simply based on the fact that she is a registered republican and a Bush insider (as was O’Connor…) with no bench experience at all.


But at the end of the day, do any of these things matter? Should they matter?


I suppose that to the degree some feel they can gain some special insight into how she might rule on cases with a glimpse at how she feels personally about the issues of our day, these questions seem logical. But are Supreme Court Justices supposed to rule on the basis of their personal ideologies, without regard for what the Constitution or Law actually says? I know it seems this way lately, but really…they shouldn’t.


I know we have had experience with this type of judicial activism in the recent past. But need I remind my conservative friends that a 7-2 republican court did not equal a conservative court?


Need I remind my friends on the left that if they really believe their socialist ideas are “mainstream”, they should come out of the closet and openly seek to enact socialist laws via the legitimate legislative branch of government, rather than focus all their energy on developing an activist court?


The simple truth is, the American people are clearly growing weary of such an activist role in the courts, as indicated in a few recent public surveys. Legal professors are shocked to learn how little trust the American people have in their chosen profession, most believing the judicial system to be yet another political instrument of the political parties. In light of activist rulings from the court, many in direct contradiction with the written laws and rights of this land, is it any wonder that today’s courts inspire so little faith or confidence?


Yet some Americans, including many democrat members of congress, continue to see the written laws and Constitution of this land as some list of recommendations subject to negotiations via an activist court. They see no need to live within the confines of written laws, to seek alterations via the means provided or to uphold a Constitution they personally disagree with.


So they seek a justice who shares their beliefs, who will make interpretations not on the basis of what these written words say, but rather on the basis of what they don’t say, in accordance with their personal ideology or political agenda. This is the kind of justice we want? The kind limited only by the imagination and whims of a single judge or court? Really?


A handful of republicans would like Bush to nominate a judge who might interpret that Roe vs. Wade should be overturned. But true conservatives simply seek a judge who will not invent laws and rights from the bench, based on personal ideology. Keeping the federal government out of the personal business of citizens is a conservative idea, not a liberal one.


When you realize that separation of church and state, abortion rights, gun restraint laws, limited property rights and the likes are all unwritten rights imagined under broad interpretations by the liberal courts, you can see the piece-meal destruction of American values that has occurred at the hands of those activist courts.


Liberals simply fear that republicans are about to do to them, what liberals have been doing to America for decades. Use the high court to enact laws at odds with their agenda, without regard for the will of the people. 


In a sense, their concern may be very valid. Not that Roberts or Miers would actively seek to overturn any prior liberal rulings. But when cases come back before the court, and the interpretations used for previous decision are reviewed, a strict interpretation of the written Constitution is all that’s needed to reverse many of the activist decisions of the past.


Hence, a nominee does not have to be a member of the right-wing conspiracy to draw a filibuster. They only need to believe in strict interpretations. Some call it, upholding the Constitution!

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