.comment-link {margin-left:.6em;}
Visit Freedom's Zone Donate To Project Valour

Tuesday, October 11, 2005

Carl On Miers, Me On Tactics

Carl of No Oil For Pacifists posts a summary of his objections to Miers.

Carl wants to fight it out. He wants Bush to nominate jurists that the Senate has told him they don't want, especially the Republican contingent. I don't know how that would work, but I do know that allowing a minority of the Senate to block conservative minority or women jurists is pretty terrible. Constitutionally speaking, the president must appoint with the "advice and consent" of the Senate. Basically Carl is advising Bush to stymie the senate by nominating candidates they have told him they won't support.

Janice Brown, as Minh-Duc observes, is a very inspirational woman:
I ran across this speech by Janice Rogers Brown - and I am immensely impressed. What's a brilliant mind! I am not going quote any because it is very difficult to pick among many profound passages. But I ask that readers read it for themselves. She articulates her judicial philosophy clearly in her speech - without refering to any pending or controversial Supreme Court cases.
Priscilla Owen is very impressive also. But the Republicans in the Senate don't want to support either for this position. I don't know what Bush should do. The Republicans in the senate will not support a truly conservative woman or a minority judicial nominee in the face of determined Democratic opposition, and the Democrats have decided to block all such candidates. As Minh-Duc observes, they have reason to fear the impact that such people would have on their agenda.

This, it seems to me, is almost a civil rights issue. I would prefer the Republican party to fight this out on principle, because what is going on here is sickening. If Roberts had been black, the Democratic party would have filibustered him. This is just flat-out wrong. Race or ethnicity should not be a disqualifying factor for the Supreme Court. For that matter, the Democratic party has taken to targeting any minority who stands for a Republican seat. I think this should be brought home to them. They are so wrong on this matter that every conservative blogger should point out exactly what they are doing.

I can't blame the president, because he is doing what the Constitution says he should. If I were stuck in his position, I would probably nominate someone like Carl, who I knew and trusted, but a person who came from a non-judicial background and was a stealth candidate - because there must be judges, and the Supreme Court bids fair to wreck our country if it continues in the same course it has been on. I do trust Bush, because he has consistently nominated genuine conservatives for judicial openings. That is why he has had such difficulty in getting them through the nomination process. So I believe him when he says he is sure that Miers will be faithful to the word of the Constitution and not some private agenda. He may be wrong, but I believe he believes it.

I don't think the Republican senators are acting for the country here. I think Bush has tried to. I don't see why he is getting such criticism for this. He has a good record on this issue. The Senate does not. The individual Republican senators don't feel vulnerable for this failing because they figure conservatives can't afford to vote for Democrats. I don't see a way out of this. Bush could nominate and renominate conservatives, but he can't even force the Senate to hold Judiciary Committee hearings. He can't force the senators to fight this battle, and constitutionally speaking, he does not have the right to try.

The more I think about it, the more I think Bush did the only thing he could. It is up to us to let the senators know how we feel. If we can't put a little backbone into them, it is ridiculous to think that Bush can. Everyone who thinks that Janice Brown and Miguel Estrada should have gotten a hearing when nominated ought to write his or her senator and let that opinion be known. If conservatives want Bush to fight this battle, then they have to give him some ammo, not just stand on the sidelines and criticize.

The only thing that will make Republican senators take this issue seriously is the threat of being faced with a more conservative Republican candidate in the next primary. As for the Democratic party, it has come pretty far from its roots here. We should talk about what it is doing. We should shout about what it is doing. This is more than politics; this is a real moral issue.

I have said thiss at Carl's (NOFP), and I will repeat it here.

"To be clear- simply having better past 'credentials' are no guarantee of future performance.

Justice Stevens and Souter were 'conservative' nominees- unknown to the President that appointed them. Though well credentialed, for some reason, things didn't quite work out as planned.

Miers is a known entity to Mr Bush. There may be something to that- if it is substance and not style, that is of greater import."

Let's not forget that Sandra Day O'Conner was a Republican appointee, as well.

All these disparate voices that are calling for 'credentialed' candidates are in fact, in no more a position to lecture Mr Bush on SCOTUS appointees than Vladimir Putin.
What I want to know, pretty much the only thing I want to know, is how is she going to behave as a judge.

The arguments used so far address stuff other than that. I don't know enough about her to know yet, I'm content to wait. If you want to say the not knowing part is reason she shouldn't be nominated, I think that's fair.

Most of the rest of it is, well I'm just not interested.
SC&A, you're right.

Tommy, can we ever know? I doubt it. I don't think we know about Roberts.
I simply want a judge/justice that defer to the electorates by not deciding things for them. So a truly judicial conservative judge/justice would rule liberal in some cases, and conservatives on others, depend on how the law/constitution is written.

For instance, if the people of Hawaii decide in favor of gay marriage through their legislature, let them be. And if the people of Texas decide the very opposite through their elected representative, so too let them be. The preamble to our constitution starts with "We the people" not "We the Supreme Court."
Well past history is we have done a really crappy job of knowing before hand. I don't know if there is any way to really know about any nominee. But I still think it's the only thing that really matters.
Minh-Duc, I agree totally.

The constitution was ratified by the language in it. It represents our contract. There is nothing in there saying "whatever"!

An extremely liberal person who was a constructionist would be fine with me. I have just never run into one like that!

Tommy - that's exactly the problem. If we can't correct this trend something is going to have to change.
Min - We have had problems when we let "We the people" be determined by the states rather than as a whole country. It is a major problem when one state can say all are equal and another can say some are less equal than others.

Mom, abut democrats and race. The difference is that (at least African Americans) is that they (black Republican politicians) tend to have more extreme views than many whites. You find very few moderate African American Republicans. This is not to say that there are not tons of liberal extreme blacks, only that it is not race per se, but how that individual tends to view their own minority group. Republican blacks tend to be harder on their own race than whites and much more dismissive of the effects of racisms. It is as if they are overcompensating.
Dingo, I'm puzzled.

Except for the one really off-the-wall guy whose name I keep forgetting, that doesn't square with the black or hispanic politicians with which I'm familiar.
Hey, Dingo, I just wanted to say that I'm finding it a little odd that a bunch of people who want the constitution interpreted literally think Bush should ignore the "advice and consent" clause.

Would you rather issues be decided by nine persons in blackrobe or would you rather your fellow citizens decide this thing? Thing may not work out perfect all the time, but place my bet with the people.

The whole activist court is simply a distrust in the democratic process - it is a way of by-passing the electoral process. Some of the issues, you may have to wait a few years to convince your fellow citizens to your side. But once they are on your side, your issue receive legitimate mandate you would not otherwise receive.

Judicial activism may gain on a few issues, but in the long run, it erodes the democratic process, and society has a net loss.
Good point, Minh-Duc. The court really does not have the power to enforce anything on its own.
I'm with Minh-Duc. And SC&A, past credentials may not guarantee anything about the future, but they correlate a hell of a lot better than poor credentials.
Mom, I think in the Hispanic community, there are more moderate conservatives that, while being conservative, are not overly critical of their own community. In the African American community, Black conservatives seem to be more self loathing, and more critical of their own race. Not all of the criticism is without merit. But much of the criticism is often seen as being ashamed of their own race, and not trying to be leaders from within. So, politicians like Ken Blackwell are not seen as being conservative black leaders, but blacks who are trying to be conservative whites. I have no problems with black leaders who are conservative leaders in the black community, but they don't exist the same way they do in the Hispanic community.

I find this whole nomination process odd also. It shows me that for the fringe on the right that are screaming about the abortion issue. It is not about having a constructionist. They want an activist judge themselves. Just a conservative activist judge.

Mihn, sometimes, you need decrees from nine in black robes to ensure the democratic process. History has shown this more than once. The founding fathers were very distrustful of the "majority" themselves. That is why they made an independent and equal judicial branch. Justice is not always on the side of the majority, nor is it always on the side of the minority. Nor, is justice always on the side of the judiciary. It is an imperfect system. But how long should the injustice of the majority prevail over the minority? 2 years? 10 years? 50? Equality for blacks was a 200 year struggle. How long should a minority suffer injustice before the democratic process is considered to be inadequate? I believe in the public school system and that public funds should not be used to pay for private religious schools. But I support school vouchers where a public school is failing because the current students are suffering currently regardless if the system can be fixed in 10 or 20 years. Justice delayed is justice denied.
Yes, but Dingo, society had to fight a war and change the Constitution first.

Now Plessy ratified Jim Crow, and it was bad law and decades of unnecessary abuse. Brown and its following decisions stopped it. Of course Plessy shows why we need judges who reason well and stick to the Constitution. It was a case of judges ruling either politically or to reach a desired end.

We don't need "decrees from judges in black robes". We need the will to live up to the Constitution and the law, and, in the case of slavery, the will to change the Constitution and the law.

We do need judges who will rule on the law based on what's in the law. Minh-Duc is not saying that he thinks the protections in the Constitution aren't needed, but that he wants judges who will enforce the Constitution and the law rather than whatever they think it should be.
But Plessy was a strict reading of the constitution. So strict that justice was read right out of the meanings of the 13th and 14th amendments.

Plessy would never be upheld in today's SC, even with a bench full of Scalias. But the words of the constitution are the same. For two centuries, brilliant minds have disagreed on the meaning of the text of the constitution.

Rulings like Kelo are actually fairly constructionist. There was no constitutional prohibition to the takings because "public use" was not defined and there was "just compensation." It is a states issue and a "voter's issue." But justice was sorely lacking in the decision. While we both abhor the decision, there was no constitutional defect per se. A constitutional defect would have been to allow states to seize land without compensation. So, like Plessy, the SC deferred to the majority through their elected officials. While it is a bad decision, you can't pin it on "activist" judges.
Post a Comment

Links to this post:

Create a Link

<< Home

This page is powered by Blogger. Isn't yours?