11 October 2005

IN RE Harriet Miers

Like most conservatives, I would like to have seen either J. Michael Luttig or Janice Rogers Brown be nominated to the Supreme Court. Some conservatives seem to have given up. This is it. They are quitting. Caution! The reason the left has been so successful is that they have been far more patient than conservatives have shown themselves to be. It took almost 60 years for the left to screw this nation up. Did anyone really think that George Bush was going to undo it all in two terms? Or with two supreme court nominees?

So, I'm disappointed. But we need to be honest about a few things.

Many conservatives who are opposed to her nomination are thinking in terms of her "light-weight-ness." She is not an Antonin Scalia. So be it. But she is a bit of a Clarence Thomas, who had little more than a year's experience as a jugde.

It is this lack of judicial experience that seems to concern most conservatives. But look (as I mentioned in my previous post): you don't have to be a judge to be on the Supreme Court; and you don't even have to be a lawyer to be on the Court. Let's ask ourselves what we really need right now.

Think of the problem. Those appointed to the Court have a tendency to drift leftward. Why is this so? I think that Michael Medved summed it up perfectly. Judges drift left because they succumb to the temptation to acquire more power. If you want power and you are a judge you must head left. If we really want to battle judicial activism we do not necessarily need people on the court who are brilliant legal minds or even judges. (And I increasingly find myself wondering if we should even want lawyers. After all, the military are under the control of civilians. Why shouldn't the courts be under the control of non-lawyers? But I digress.)

The left's number one concern, judicially speaking, is to have judges who are willing to arrogate power. It seems to me that our number one concern, as originalists, ought to be having judges who are committed to the proposition that judges say what the law is, not what it should be. In a republic, we must insist that character matters, yes sometimes even more than intellectual preparation (we don't want elites, do we?) or previous judicial experience. We ought to insist, above all else, that all our leaders--including judges--be commited to the principles of federalism. A commitment not to seek to garner more power for oneself is a matter of character. (And with respect to the whole "brillian legal mind" business. There has never been anyone on the left whom I have considered a brilliant mind at all, much less legally.)

I tend to believe that the President has ascertained that Harriet Miers is committed to judical restraint, the proposition that judges say what the law is, not what it should be. I tend also to believe that the President has ascertained whether or not she is the kind of person who would seek to arrogate power to herself. For too long we have asked the wrong questions of our judges. We have asked their views on civil rights, abortion, the environment, gay marriage, and the like. The real question really is whether they can be trusted with even a little power--and be content with having only a little power.

Now, we might all have the nominations we want if we could have a filibuster-proof nominee. For the fact that we do not, blame JOHN ONE-OF-THE-GANG-OF-FOURTEEN MCCAIN.

Of course, there might, as some suggest, have been something to having that fight in the Senate that we might like to see. And it is a fight that must, arguably, finally take place. But what we need right now is someone who, at the very least, would vote with Scalia, Thomas and, hopefully, Roberts. And, if nothing else, the appointment of Harriet Miers would give us something almost as wonderful as victory itself: the chance to live and fight another day, after we have spent a few more years pushing back "the frontiers of ignorance" and arguing the superiority of federalism.

But there's something else. I hold to a worldview, Calvinism, which is not the product primarily of pointy-headed intellectuals. The worldview to which I hold is the development of Scots and Dutch, working people, whose worldview arises from the attempt of working people to apply their fundamental religious principles to all of life. So I have a preference against scholars and academics being leaders; I prefer working people.

No, Harriet Miers is not known to be a constitutional scholar. So what? The Constitution was written to be the fundmental law of a land of working people; it is easily read. No, she is not an academic; and she is not a judge. She has, however, spent her life doing something that I can and do respect tremendously: working for a living, as a corporate attorney, and not taking up space in an ivory tower, and coming to the conclusion that because she has done so she now knows more than we what is good for us and our nation. And I would bet that she has now spent enough time in the working world to be rather unimpressed by the nation's elites--in stark contrast with the likes of Kennedy, Souter, Ginsberg, and Mr. Rogers, I mean Breyer.

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James Frank Solís
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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