Miers Withdraws
October 27, 2005 · By Tom Cerber
Harriet Miers has withdrawn her nomination to the Supreme Court. Peter Schramm rounds up some useful news reports and commentary.
I have no opinion on this matter except that it’s probably the prudent thing for Bush to do.
While I’ve highlight some of her strengths in previous posts, I should clarify that I never tried to defend her against the massive amounts of criticism that people like Frum, Krauthammer, etc. were waging. I simply wanted certain strengths, that may have filled the gaps in the current Court, not to be overlooked. I’m unsure that those strengths have been addressed, but it’s a moot point now.
I hope that clears up some careless misreadings of my previous posts.
Well, I thought the Miers appointment was a bold and good choice.
What I liked about the Miers pick was that it flew in the face of predominant thinking that candidates for a high court need solid academic and intellectual creditials—the type who treat the law, and the practice thereof, like religion. The law and lawyers are meant to have practical effect, not preach romantic delusions about the law and its importance for human beings. The Miers nomination flew in the face of the Ivy League, flew in the face of the supposed elite judicial pool, and flew in the face of the traditional resumé of a justice to a high court. By all accounts Miers’ was a low-key practically trained lawyer, without adgenda; a woman of demonstrated judicious temperament.
And a judicious temperament matters! I think it is dangerous when: a.) courts are not considered political and b.) judicial activity, as destinct of legislative activity, is underappreciated in politics. Judicial activity is reasoned interpretation of legal “rules” best practiced by those without dogmatic pretense (and therefore, the capacity to recognise such pretense), and by those with limited personal enthusiasm for political esteem or agenda.
I think “conservative” criticisms of Harriet Miers showed little appreciation for genuine judicial activity in politics. Little trouble do they have seeing courts as political, yet too comfortable are they with dogmatic pretense as qualification for judicial service: the “originalism” or “founder’s intent” they claim so essential to modern constitutionalism. Don’t get me wrong, history is important! However, judicial activity must broker a conversation between history, present legal question, and future ramification. Judges are not simply legal historians, nor should the percieved interpretation of how the founders thunk the constitution trump all other reasoned opinion.
Unfortunately, while courts are commonly seen to be political, the villain of dogmatic pretense that so corrupts judicial activity is yet to be commonly identified—”conservatives” seem to expect their own variant of it.
A Pitch for Justice Luttig
http://www.hughhewitt.com/