The nomination of Harriet Miers to the Supreme Court is what philosophers and theology students like to call a “teachable moment.” The fight between conservatives and President Bush reveals how serious conservatives are about reforming the federal judiciary and how wrong liberals have been about the right’s motivations in this effort.
When Bush nominated Miers to replace Justice Sandra Day O’Conner on the Supreme Court, there was instant outrage among many of Bush’s supporters. Conservative heavyweights such as David Frum and William Kristol immediately came out against the nomination. Kristol expressed himself “disappointed, depressed and demoralized” by the nomination and Frum is compiling signatures for a petition for the president to withdraw Miers’ name from consideration.
The reason for all this angst is not immediately clear. If one listens to liberals like Sen. Leahy (D – Vermont), conservatives should be happy with Miers. According to Leahy, conservatives are “intent on reversing decades of policies on civil rights, voting rights, women’s rights, privacy and access to justice,” by nominating out-of-the-mainstream judges to federal courts.
Women’s rights are, of course, synonymous with abortion and, if Leahy is right about the right’s drive to end abortion, then conservatives should be standing in line to promote Miers. Karl Rove vouched for her evangelical, pro-life bona fides to James Dobson, president of Focus on the Family, a conservative, pro-family organization. Texas Supreme Court justice and Miers’ friend Nathan Hecht has said that “her personal views are consistent with that of evangelical Christians.”
Given these endorsements for her personal views and the likelihood that she will be hostile to much of the cultural liberalism that plagues the courts, why aren’t conservatives wholeheartedly supporting her?
The answer is that many conservatives care less about her personal views and policy preferences than about her philosophy on the law. Those on the right who have been fighting to end judicial activism on the courts do not want to replace liberal activist judges with conservative activist judges. Otherwise, they would support any judicial nominee who votes the “right” way.
Rather, what many conservatives have been pushing for is an end to judicial activism altogether. Supreme Court jurisprudence over the past 30 years has consisted largely of liberal judges replacing constitutional principles with their own policy preferences on issues like free speech, abortion and gay marriage.
Conservatives who adhere to an original, historical interpretation of the Constitution see such activism as not only antithetical to the true mission of the courts, but damaging to the democratic process and the rule of law. Replacing one activist judge that you dislike with another activist judge that you approve of is like replacing the old dictator with a new, more agreeable dictator. You’re still living under a dictator.
Hopefully, the debate over the Miers nomination will highlight the problem of judicial activism and reveal the distinctions between it and an originalist approach to the Constitution. Not only will this ensure that we get the best possible judges for the Supreme Court, but the debate will help educate the public about the very real threat judicial activism poses to the Constitution and to the rule of law.
Sean Paroski can be reached at firstname.lastname@example.org.