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October 17, 2005

Miers Again

California Conservative discussses Rush Limbaugh's recent op-ed in the Wall Street Journal.

Key quote:

We conservatives are never stronger than when we are advancing our principles. And that’s the nature of our current debate over the nomination of Harriet Miers. Will she respect the Constitution? Will she be an originalist who will accept the limited role of the judiciary to interpret and uphold it, and leave the elected branches, we, the people, to set public policy? Given the extraordinary power the Supreme Court has seized from the representative parts of our government, this is no small matter. Roe v. Wade is a primary example of judicial activism. Regardless of one’s position on abortion, seven unelected and unaccountable justices simply did not have the constitutional authority to impose their pro-abortion views on the nation. The Constitution empowers the people, through their elected representatives in Congress or the state legislatures, to make this decision.

Hear, hear.

As I've said, I think that allowing abortions in most cases, especially in the first trimester, or to save the life of the mother (or avoid serious medical risks), is good public policy.

But it's the role of the Courts to determine what "good public policy" is. That role is left to the elected branches of government, voting as their constituents want them to (or being cast out of office if they don't do so frequently enough).

The Court thinks it's doing the country a favor by "resolving" difficult and contentious political issues through judicial fiat. The Court thinks it's, firstly, offering us the reasoned consideration of philosopher-kings better able to decide these issues than the common citizen.

And secondly, the Court imagines it's helping the country avoid these divisive issues by settling them "once and for all."

The first thought is so arrogant and anti-democratic it hardly merits rebuttal.

The second is equally absurd. Far from resolving the debate on abortion, the Court has in fact exacerbated it, by making millions of Americans essentially doubt the workings of democracy itself, and giving them good reason to think the government of, by, and for the people is in fact hopelessly stacked against them. The elites rule; the common citizens are marginalized. That is not good for democracy.

Further, the fact that the Court has arrogated to itself the power to decide all contentious, quite-debatable, and hotly-contested political questions for itself has produced a grotesque semi-democracy which is not even close to what the Framers envisioned. Rather than these questions being decided by political persuasion and political power, they're instead decided by an unelected superlegislature; more and more, the real power resides in the Court, and all normal politics are increasingly just a battle over who will get to pick those who will actually govern us.

Imagine if we didn't actually vote for a President. Imagine instead we voted for a group of Wise Ministers who themselves chose a President for us. (Please don't say "that's what the electoral college is.") We would not have any direct input to how this country's government is administered; we could only hope that those Wise Ministers we elect will chose the President we prefer. Similarly, for some of the most difficult questions of the age, the citizenry does not even have the indirect influence in shaping our polity that representative democracy afforts. The public's desires are triply-insulated from those actually making the decisions. We vote for representatives in the hopes they will vote they way we like them to; but on the difficult social questions that divide this country, they don't vote on those questions so much anymore. Instead, they only get to nominate and confirm the judges who will actually be deciding those issues. We only vote for people who then vote for the actual hidden government of the country.

This separation of actual political power from popular political support is more and more a characteristic of European democracy, such as it is. It was never intended to be the American scheme.

My continuing problem with Miers -- whether or not she's pro- or anti- Roe -- is that I have no evidence that she appreciates this or any evidence that she will seek to undue fifty-plus years of direct political power being exerted by judges. If she has the liberals' attitude that "the Constitution is what the Judges say it is," we will simply be trading a conservative judicial activist for a liberal one-- at best.

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posted by Ace at 03:13 PM

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