Strengthening Constitutional Self-Government

No Left Turns

More on Miers

Will I ever write about anything else again?

Citing, among other things, this op-ed and having this NYT article in the back of his mind, Ken Masugi reminds us of the unavoidably political dimension of the fight to restore a constitutional judiciary.

Yes, I think that this fight could have been waged with another nominee sitting across from the Senate Judiciary Committee, but that is not going to happen. Bush will not withdraw his nomination. What makes anyone--save for those on the Left--think that the defeat of Miers will produce a jurisprudentially more congenial replacement nominee? Consider this: if the Miers nomination timetable follows the conventional schedule, the Senate Judiciary Committee would likely vote in early December, with a Senate vote following in mid-December. If the nomination fails, the pressure on the President to name a filibuster-proof "consensus" nominee comes into play. After all, once we get into the new year, the impending fall elections start dominating the political scene. And if the Democrats think they can regain control of the Senate from a weakened Republican Party, they will likely do all they can to slow the process down. We could end up with a nominee the Post and the Times (not to mention the Harvard and Yale law faculties) will welcome as a "moderate."

Obviously, as well, should Republicans lose control of the Senate, the prospect for future attractive judicial nominees virtually disappears.

All this leads me to swallow my disappointment and stick with Miers at least through the hearings. There is no realistic prospect of a nominee I like better being produced by the process currently in train. And I am not at the moment convinced that anyone likely to be elected in 2008 will nominate men and women more faithful to the intentions of the Founders. If President Bush’s judicial legacy is as important as people say (and I think it is), then we have to hope that he succeeds and help him along. The realistic alternative is, I think, far worse.

Discussions - 6 Comments

Masugi’s article is right on point.

All of this talk about not wanting activist judges, etc. is a bunch of crap. Every person wants a judge who votes in favor of her views. And when the judge does not, that judge is an "activist." Masugi writes that "Congress could reign in the Court", and that (as a general rule) is true. But elected officials are worthless. They leave difficult decisions to the courts when they are scared to make them.

I am not crazy about the Miers pick. But the more I think about it, the more I think that W. might be more true to his word that each of us gives him credit for. It seems that he appointed an "activist" pro-life judge who would overturn Roe... and not just leave it to each State to decide.

Is that a wise move? We will see. I tend to say it is not.

But I am starting to think it is a refreshing move. Kudos (I think) to W. for having ganas. I think he might have shown more principle in that nomination than we have seen in a long time from any politician.

We shall see.

Sorry, I’ll try again...


Masugi’s article is right on point.


All of this talk about not wanting activist judges, etc. is a bunch of crap. Every person wants a judge who votes in favor of her views. And when the judge does not, that judge is an "activist."


Masugi writes that "Congress could reign in the Court", and that (as a general rule) is true. But elected officials are worthless. They leave difficult decisions to the courts when they are scared to make them.


I am not crazy about the Miers pick. But the more I think about it, the more I think that W. might be more true to his word that each of us gives him credit for. It seems that he appointed an "activist" pro-life judge who would overturn Roe... and not just leave it to each State to decide.


Is that a wise move? We will see. I tend to say it is not. But I am starting to think it is a refreshing move. Kudos (I think) to W. for having ganas. I think he might have shown more principle in that nomination than we have seen in a long time from any politician.


We shall see.

Joseph,

It is exactly this sort of political "realism" that kills the prospect of change (for better or worse). I pray you are wrong. I hope her nomination is killed and the President decides to act on courageous principle - and nominate a conservative judge...

"Overturning Roe" means returning to the 1973 situation--where each state could pretty much have any kind of abortion law it thought best. "Overturning Roe" in the sense of making abortion illegal/unconstitutional would be foolhardy and not a real possibility.

Being "against judicial activism" can mean, as it does for me, having the Court do a lot less acting. It means, as I’ve said before, being both against Lochner and against Roe etc. It does not mean replacing one form of activism for another, as some libertarian law professors want.

I just read Ken Masugi and the Olaskys and thought they both had plenty of merit. The fight against judicial activism is political in the sense that the other two branches have to weigh in with their constitutional powers. So it depends upon the evangelicals being mobilized as much or more as on the sage opinions of Scalia or Thomas. We can expect the Court to argue in a way that maximizes its own power; much of the check to that tendency has to come from outside the Court. Contrary to the Anti-Federalist Brutus, the other two branches are given enough power under the Constitution to keep the Court in line if the will is there to use it. And we have some reason to believe that an "outsider" evangelical woman would be the natural ally of the political or anti-elitist anti-judicial movment. I’m not completely convinced, but it’s good in some ways to see astute evangelicals such as the Olaskys rallying around her.

Bush doesn’t want a vote on Miers in December. He wants her vote by Thanksgiving. Why? Ayotte v Planned Parenthood is calendered for 11/30/05. Think that has something to do with it?

Leave a Comment

* denotes a required field
 

No TrackBacks
TrackBack URL: http://nlt.ashbrook.org/movabletype/mt-tb.cgi/7313