Saturday, October 22, 2005

Miered in Prejudice

No nominee for the Supreme Court of the United States should be asked, or should answer, questions about how they would decide any question that may come before the court. Nor should any qualified nominee have such a position in their own mind or heart.

John Roberts had to say it to Senator Biden, and Harriett Miers may have to say it to Senator Brownback. Supreme Court justices are not confirmed based on campaign promises to vote this way or that way on any particular issue. As Justice Antonin Scalia has pointed out many times, justices are life-tenured so they can uphold the law, not the popular will.

Prejudice means to pre-judge, to judge a matter before the facts, arguments, and applicable law, are first heard and weighed. The role of the Supreme Court in our system of government is to uphold the constitution, if necessary in the teeth of temporary popular majorities, zealous congressional crusaders, or presidents seeking to concentrate more power in their own falliable hands. Anyone who does not understand that is unworthy of the name "federalist" – because Alexander Hamilton and James Madison wrote it all over the Federalist Papers.

It is possible that Harriett Miers still favors legislation to ban or severely limit abortion. She once said that she would vote for such legislation if the Supreme Court were to allow for such laws. It is possible that time has modified her views on this subject. It doesn't really matter, because she is not running for a legislative position. Supreme Court justices do not vote on legislation.

If she holds this view, she may still, as a justice of the Supreme Court, recognize that the constitution simply does not allow legislators to intrude upon the intimate life of individuals and families, or private medical decisions, with such legislation.

She may also, as a justice of the Supreme Court, join with justices Scalia and Thomas in maintaining that the constitution does not restrict state legislatures from imposing criminal penalties on abortion. She might therefore vote to overturn Roe v. Wade. She would have to provide a well-documented opinion that Roe v. Wade was wrongly decided, that the constitution does not, and never did, impose such a limitation on state authority. That has nothing to do with whether she believes abortion to be a moral choice.

Either way, her opinion on such a question would not depend on counting heads, or on which interest groups had the most colorful literature, the hottest slogans, the most passionate orators, the most award-winning web sites. It would depend on her analysis of what the constitution does, or does not, say, what it does, or does not, mean.

There are many voices who denounced Miers's nomination, because they were not certain she would vote their way on their pet issues. Now, some of those voices are satisfied by her record that she would. Therefore, they are now announcing that it would be wrong to hold her personal views against her in the confirmation process. These voices have revealed themselves to be opportunists, hypocrites, subversives; their transparent vacillations border on treason to the Constitution of the United States of America.

If Miers has already made a decision on how she would dispose of any question that may come before the court, then she is morally and ethically incompetent to serve. It doesn't matter if she is firmly committed to preserve or to overturn any particular line of cases. If she is not mentally and morally committed to reserve judgment until a live controversy comes before the court, and then to apply the Constitution, as it is, to the arguments presented to the court, she should be denied confirmation. If the meaning of the constitution changes according to the personal preferences of those appointed to the Supreme Court, then we have no constitution at all.

If Miers is open and honest with the senate, it should be obvious whether she is qualified to serve as a justice or not. Of course she could deliberately deceive the senate by concealing her intention to rearrange the law as soon as she is safely confirmed. If any senator suspects such intentions, it is more than fair to try to expose it. But it is awfully difficult to "prove" what is truly in the mind and heart of another human being.

The ranking Republican and Democratic members of the judiciary committee have found her initial answers inadequate. If this means, they can't tell whether she has the integrity and impartiality to serve, they should insist she stop being coy. If this means, she declined to take positions on matters that may come before the court, they should back off.

It is entirely possible that no case will come before the court in the next ten years, which raises the issues most on the minds of mindless lobbyists and preoccupied senators. Perhaps Roe v. Wade will be overturned, some years after Scalia, Thomas, Roberts, and Miers have all resigned or died at their posts on the court. After all, well established law can be disposed of by federal district judges, by state courts, certainly by federal courts of appeal. The Supreme Court may not accept, or even receive, cases that reopen the legal issues most on the minds of the senate's judiciary committee.

One of the most infamous decisions ever made by the Supreme Court of the United States was Dred Scott v. Sanford. George W. Bush is fond of pointing out that he would not appoint justices who would uphold that case. It is mighty white of him to think he can sway the votes of 21st century American citizens, particularly those of known African descent, by denouncing Chief Justice Roger Taney's majority opinion. It should be a no-brainer. Had Dubya Augustus entertained the notion of reinstating Taney's finding, that individuals of African descent have no rights which federal law is bound to respect? Have some of his "advisors"?

It is worth noting, that Dred Scott v. Sanford was never overturned. No new composition of justices reconsidered the earlier reasoning, or found it to be faulted. In fact, at the time Justice Taney wrote, his opinion was a perfectly sound statement of the Constitution as it was then written. Taney accurately reflected the legal foundation that emerged from the constitutional convention, and the compromises necessary to establish any federal government that all thirteen colonies would accept.

Dred Scott v. Sanford ceased to be good law, not because of any decision by the court, but after four bloody years of civil war, and three amendments to the constitution. Those amendments were secured by a good deal of arm-twisting too. The former confederate states were denied readmission, denied their own senators and congress representatives, denied their own elected state governments, until they ratified the Fourteenth Amendment. Unfair, but gloriously to the credit of our nation.

Nobody except Eric Rudolph is prepared to fight a civil war over Roe v. Wade, or any other judicial ruling of the past fifty years or more. Nor is there sufficient consensus among American voters to amend the Constitution. There is ample room in our current jurisprudence, politics, and culture, for those who are committed to one position or another to win over their fellow citizens without resorting to arms.

Harriett Miers has been nominated to be a guardian and steward of a constitution. The sole requirement is that she understands what she has been called to do. The senate's primary concern is whether she is qualified to fill that specific role. The opinions of five million pressure groups, religious, civil, cultural, or otherwise, are supremely irrelevant.

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