Sunday, October 23, 2005


To George Will, for today's incisive column on the Miers nomination. Towards the end of his piece he hits the right notes on the obligations of those Democratic senators wishing to make an issue of Bush administration cronyism in the future.
Still, Miers must begin with 22 Democratic votes against her. Surely no Democrat can retain a shred of self-respect if, having voted against John Roberts, he or she then declares Miers fit for the court. All Democrats who so declare will forfeit a right and an issue -- their right to criticize the administration's cronyism.
Will also makes a useful rejoinder to the practicioners of identity politics - on both the left and the right - who have argued that Miers' gender alone ought to be considered as a reason for her approval.
And Democrats, with their zest for gender politics, need this reminder: To give a woman a seat on a crowded bus because she is a woman is gallantry. To give a woman a seat on the Supreme Court because she is a woman is a dereliction of senatorial duty. It also is an affront to mature feminism, which may bridle at gallantry but should recoil from condescension.
But ultimately, I think the most important issue in this piece is the broader question of the role of the judiciary in American politics. I've always felt that the proper, and really the only sensible way for justices to approach constitutional interpretation is through the strict constructionist approach. So it shouldn't come as too much surprise that I agree with Will's thoughts on this subject:
In their unseemly eagerness to assure Miers's conservative detractors that she will reach the "right" results, her advocates betray complete incomprehension of this: Thoughtful conservatives' highest aim is not to achieve this or that particular outcome concerning this or that controversy. Rather, their aim for the Supreme Court is to replace semi-legislative reasoning with genuine constitutional reasoning about the Constitution's meaning as derived from close consideration of its text and structure. Such conservatives understand that how you get to a result is as important as the result. Indeed, in an important sense, the path that the Supreme Court takes to the result often is the result.
What I, at least, find surprising is the disdain this kind of opinion is held in by many respectable liberal pundits who are often quite enthusiastic (and rightly so, I might add) about slamming the GOP's head on the table over its breaches of good faith and procedural tradition in Congressional politics. Listening to Kevin Drum rail against Delayesque mid-decade gerrymanders:
Excellent news: Tennessee Democrat John Tanner has introduced a bill to put a stop to yet another of the Republican party's favorite Calvinball practices: mid-decade gerrymandering whenever they feel like it might benefit them. The Carpetbagger, who has the details, is impressed with Tanner's approach.

Needless to say, this will go nowhere. Even Tanner knows that. But this is something the entire Democratic caucus ought to get behind in order to position themselves as the party of integrity and reform. This is a national issue, and the only way to handle it is on a national basis.
Or Matt Yglesias complaining about the "constitutional" option for dealing with filibusters:
In light of that basic point, I think it's worth noting just how pathetic the behavior of the moderate Republicans has been and continues to be in all of this. The moderates know perfectly well that the nuclear option is wrong, that the filibuster isn't unconstitutional, and that you can't change the rules of the Senate by breaking the rules. But if this is what they think, then their duty is plain: vote against the nuclear option. Instead, they're running around demanding that Democrats sweeten the pot by letting some of Bush's judges through. It's as if Olympia Snowe stumbled on a mugging and offered to help the victim ... but only if he gave her half his cash as payment.
I get the impression that these guys should be pretty receptive to the strict interpretation school of judicial philosophy. After all, if Calvinball rules are inappropriate in Congress, a body which largely makes up its own procedures, why are they ok in the Supreme Court, which has the express purpose of interpreting written documents? As far as I can tell, though, Drum and Yglesias are quite happy with the status quo of penumbra- and emanation-laden Supreme Court decisions and we're not going to see a small army of liberal pundits protesting against Roe v. Wade or Anthony Kennedy's decision to import foreign law into the American corpus any time soon. If anyone sees a distinction here I'm missing, I'd be interested to hear what it is.


At 11:10 PM, Anonymous Anonymous said...

George Will can suck a dick.



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