Saturday, October 08, 2005

The Misunderestimation of the Harriet Miers Nomination -- UPDATED!


Many conservatives are going dowright apoplectic over the nomination of Harriet Miers for the Supreme Court.

Some are citing her lack of experience as a sitting judge ... and ignoring her broad and diverse experience as a lawyer, presenting cases before such judges. I submit that her experience places her closer to the real-world consequences of flawed jurisprudence than other candidates ... she has a better feel for what's at stake when it comes to a decision, than those who have spent years in the ivory tower of unaccountability and judicial theory.

Besides, does experience get us that much more from our political leaders? We keep re-electing the same people to Congress for years and even decades ... and they never seem to learn from evident error (example: Democrats keep trying to equate compassion with funding, despite the wasteful failure of their Great Society/War on Poverty).

Now, look at the judicial activists who sit on our Supreme Court -- even with decades of experience, they haven't even figured out that their activism is wounding this nation, let alone tried to change it. In fact, the heavy weight given to the "experience" of legal precedent works against the acknowledment of the problems by the judiciary, delaying (if not denying) the resolution of those problems.

Could it be that our courts have become legally and intellectually inbred ... and we need people that have not spent their lives on the bench to revitalize our legal gene pool?


Other conservatives look at the Miers nomination as the avoidance of a fight they believe we need to have ... a battle in the culture war, to be waged in Congress.

I submit that some of these are looking for a judge who will "vote right" -- not in the sense of original intent, but in a conservative mirror-image of Leftist judicial activism. That is NOT what we need, and we need to be very careful we do not even LOOK like, much less actually be, seeking it ... to do so would be handing the opposition the ammo they need to thwart this and other nominations, on a silver platter!

If this nomination is perceived as imposing "right-wing" ideology through activism, or becomes a battle over the totality of Leftist vs. conservative viewpoints, we stand a good chance of LOSING ground ... not gaining it!

Unfortunately, there are large segments of "we the people" who, while they perceive the need for the rule of law and effective representative government, are comfortable with a certain degree of Left-leaning judicial activism ... it doesn't negatively affect them in their view, and it makes them "feel good" that the flaws in our representative government can be quickly "corrected" by bypassing the democratic process. Many of these are also uncomfortable with ANYONE perceived to be an ideologue ... Left or Right ... having power.

The Left exploits both of these characteristics ... they have been successful in shaping the debate over the years, so that (1) judicial activism is equated with "social justice", and (2) their ideology is sold (particularly in the MSM) not as Left vs. Right, but as "truth" vs. "greed". Thanks to the wealthism that the Left has historically infected many in our population with, judicial activism is seen as another way for the little guy to "get theirs" from the greedy rich right-wing guys -- and at present, their "theocratic" allies -- who "run everything".

The President is acutely aware of this problem, yet he also knows (as many of us on the Right do) that judicial activism undermines the proper checks-and-balances that prevent both an imperial judiciary and an imperial Presdiency, along with a Congress dominated by a "tyranny of the majority" ... something that is not clearly perceived by those infected with the wealthist virus described above.

He has ALWAYS stated that his judicial appointees will be "originalists" -- those who will apply the Constitution as written and amended, instead of viewing it as a "living, breathing" document that can be distorted at will to fit one's concept of "justice", with no need to submit it to the messy process of amendment.

Populating the court with originalists is the Left's greatest fear ... for they cannot impose their agenda through the ballot box and its derivatives -- laws that pass originalist Constitutional muster, and the amendment process. They DEPEND upon judicial activism, and they will fight the seating of originialist judges by any means necessary ... but not by a direct attack, for they don't want the truth about judicial activism, and the threats it poses to the rule of law and freedom itself, laid bare for "we the people" any more than it already has been by recent decisions like KELO.

By appointing Harriet Miers, the President is making this battle about originalist vs. activist judical philosophy ALONE. Unlike the other, allegedly more qualified nominees, she does not carry a shiny ideological axe ... just the shield of originalist philosophy. As a result, the President has put his opposition in a box ... "shaping the battlespace" to focus the debate upon the primary threat we face, and minimize the ability of the opposition to misdirect the debate ... and to do everything possible to assure that an EFFECTIVE nominee -- one who will act to thwart judicial activism -- will be seated on the Court.

If the Leftists try to oppose her on ideology, they are going to have a hard time making it stick without being exposed as ideological bullies ... and if they oppose her originalist philosophy, the dangers of judicial activism will be exposed even more -- and they will be perceived as ideologues who wish to short-circuit the Constitution to get their way.

If the President we support is to be believed by those who are comfortable with the present degree of judicial activism -- and win them over to a more sound philosophy of jurisprudence -- we must not give in to the temptation to demand he make things right through the appointment of "our own" judicial activists ... and while we still can have, and even need, to fight the battles of the culture war, we need to pick them carefully, so the skeptical become our allies, instead of pushing them to our opponents in the name of a so-called "purity".

Let's not shoot both him and us in the foot ... by misunderestimating him ourselves.

Don't perceive his actions as "weakness" -- IMO, what he is doing is deploying a political "smart bomb" here, for effect.

(Tracked to Mudville's Open Post, Wizbang's Carnival ... the linkfest at Stop the ACLU ... and the Indepundit's Morning Quarters.)


UPDATE: Read my lips, TTLB -- I support the Miers nomination.

As I posted in the comments section there ...

The conservative punditocracy is seeking a knock-down-drag-out battle between the entirity of conservative and liberal ideologies, with the battlefield being the next SCOTUS nomination. (A few, deep down, may even desire a conservative judicial activist ... which is the height of hypocricy, IMO).

I believe this is a tactical error, because the American people will not respond well ot a battle-of-the-hardcore on the floor of the Senate. Instead of paying attention -- and learning about what is at stake here -- they will get disgusted and dismiss it as mere politics.

IMO, what the President attempted to do in the Miers nomination is focus the battle on the most significant issue -- originalism vs. activism -- by NOT putting up a name from the conservative "short list" of those who are carrying a bright, shiny ideological axe for grinding.

Had he been successful in doing so, the Dems would have been denied the use of their usual EvilConservative(TM) tar-and-feathers during the debate.

Instead, through their response, the punditocracy has given the Dems either (1) new talking points that are NOW harder for the President to defend against, and/or (2) hope for a party on the ropes.

If this nomination will have been blown, it will be by the punditocracy, not the President.

Hmm... Rich, you almost make me wonder if Harriet Miers was chosen so that she'd fail, after which Bush pushes forth a hardline conservative, shrugging helplessly and saying: "I tried a moderate, but you wouldn't let me".

He's not that Machiavellian, is he? On the other hand, I've fallen into the trap of misunderestimating him before.

*grin* What interesting times we live in!!

Daniel in Brookline
Daniel: How could you be so cynical?

Besides, only a fool would spend so much political capital only to through it away. Bush is NO FOOL!

Bush's goal is to transform the court and return the powers it has usurped to the states and the legislatures.

Ms. Miers has been at his right hand throughout the judicial selection process and helped him find and CONFIRM many excellent conservative judges.

He knows her well and vice versa. She would make an EXCELLENT Supreme Court appointment.
Help Mommy, there are Liberals! underneath my bed!!! (No, seriously, that's the name of the book...) Don't believe me? The dang thing's on Amazon, not some hippie-press bullcrap ;) Anyway, thought you might enjoy, pinko ;)
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