Thursday, October 20, 2005

Why Miers is more of an originalist than John Roberts

This exchange over at Polipundit was so good, it deserves a post over here:

Roberts on judicial activism. (Key excerpt posted toward the bottom).
Miers on judicial activism. (long: scroll down).

OK, Rory, I’ve read it (the long version). I’ll tell you why I think Miers’ response is BETTER.

1) Her repeated emphasis on rulings based on, and the importance of, the actual words. This is originalism. This is what we need. Roberts did not say anything like that.

“For the legal system to be predictable, the words are vital – whether they are agreed upon by parties to a contract or are the product of legislative compromise. Many times in practice I found myself stressing to clients the importance of getting the words exactly right if their interests were to be protected in the future.”

2) Her emphasis on not deciding anything more than you are required to by the case before the court. Roberts didn’t emphasize that in the same way.

“An additional element of judicial restraint is to be sure only to decide the case before the court, and not to reach out to decide unnecessary questions. The courts have the essential role of acting as the final arbiter of constitutional meaning, including drawing the appropriate lines between the competing branches of government. But that role is limited to circumstances in which the resolution of a contested case or controversy requires the courts to act. ”

3) She has a good discussion on precedent, stare decisis, etc. She specifically says that precedent can be overturned, and gives some principles in regard to this. Leahy and Specter are insulted because she says precedent can be overturned, and Roberts didn’t in his statement.

4) Roberts’ statement re: collegiality on judicial restraint leaves one with the impression he could be vulnerable to drift, being influenced by liberals on the court. She has no such statement. I don’t find a discussion of collegiality in this context to be a strong indicator of judicial restraint, it seems on the other hand to be dangerous.

5) She specifically talks about the rule of law vs. the rule of man in regard to judicial activism. Roberts did not.

Does that mean I think she will be a better justice than Roberts? Of course not, I could have no way of knowing. But based on these two statements on judicial activism (I didn’t read everything else on Roberts), I far prefer hers.

Comment by Anony-moos 10/20/2005 - 11:30 am


In response to:

1) I believe Roberts implies his belief in the words and original intentions of the constitution, but it is true, he does not address it directly. A reason for this may be consideration of the Judiciary committee, since he was at this time, I believe, still nominated for O’Connor’s spot, and had been held up by like idiots when nominated in the past. He may have been trying to avoid riling feathers.

2) Her response on this topic is better than Roberts’.

3) To be fair, Roberts didn’t say precedent could not be overturned, either. He merely said that a good Judge is obligated to take into consideration the decisions of Judge’s past, who deserve the same respect for their service that the current Judge looking back at the decision deserves for his own. If, however, after one examining this precedent concludes it was an unconstitutional one (think: Roe v. Wade), given his other paragraphs in the Judicial Activism portion of the questionnare, he believes it is clearly the responsibility of the Judiciary to overturn that precedent. He does not need to say it outright.

4) On this point specifically, I like Roberts’ answer more than Miers’. I don’t interpret his belief in collegiality to mean that he is likely to drift on the Court. It means that he is not going to be reading over an opinion of Ginsberg’s with a smirk on his face, thinking “wow, what a twit.” He is going to give her opinion the attention that it deserves, take it into account (because those that serve as Judges are clearly brilliant individuals, and deserving their opinions to be given proper consideration), and attempt to strive for some kind of clearly majority decision.

It does not mean that he is going to resign his differing opinion for the sake of giving a majority decision. It means that his aim is to debate with the other Judges, and likely through Socratic method, chizel out the flaws in the arguments of both sides. And, he says, one of the most important responsibilities of a Judge is simply to recognize where your original bias may be wrong, and be open to correcting it. There is nothing wrong with this belief.

5) Again, Roberts does speak to the issue of rule of law, but he considers it so obvious and common sensical that he does not need to elaborate. He merely states: “[Judges] do not have a commission to solve society’s problems, as they see them, but simply to decide the cases before them according to the rule of law,” as if it would be absurd to think otherwise, and does not require any depth to prove.

Miers’ responses are clearly more readily understandable to we common men, but my preference for a Judge on the Supreme Court just is not common men.

Comment by Rory Vincent 10/20/2005 - 12:05 pm

Thanks, Rory, interesting comments. So to sum up:
1) Her statement is stronger, but you understand why Roberts wasn’t so explicit? I would agree. I would also say that she needs to be stronger because of the lack of a paper trail. But on the statement itself, we like hers better on this point, correct?
2) We agree, her response is better.
3) Again, she says outright what Roberts did not and did not need to. Her statement is stronger, but we don’t criticize Roberts for not saying it. Agreed?
4) We disagree on this one. I see your point and have no problem with the statement. I just don’t like it in a statement on “judicial activism", when we know he’ll be working with activists. In any event, Miers no doubt had his statement and intentionally chose not to include a similar statement on collegiality. To me, that is reassuring rather than a negative.
5) Again, Miers makes explicit what Roberts did not. We would agree that this does not make Roberts’ statement a weak one. Would you agree that it makes Miers’ stronger?

I read it and say Miers was much more explicit on things that could trigger D opposition than Roberts was. And she laid it out so that even D senators could understand it, and also so that the man in the street could understand what the fight is about.

I had not realized how much farther than Roberts she has gone. She was very specific on some things.

I think they are trying to trigger a filibuster fight, and this is the first salvo. The Ds will filibuster a nominee that they recommended.

Comment by Anony-moos 10/20/2005 - 12:19 pm


1) Yes, I would have preferred Roberts to go more in-depth into the originalist views of the U.S. Constitution, which I think Miers takes a shot at by detailing the key ‘the words’ play in Judgeship.
2) Indeed.
3) Correct. Miers has different considerations in her answers, and she is detailing things for different reasons—things Roberts didn’t especially need to delve into.
4) I didn’t take Roberts’ perspective to mean that he was saying we should work with Judicial Activists, but now that you bring it to my attention, if that was what he meant, that is very disturbing. His opinion of collegiality, I adore. I took it to mean through collegiality and conversation, activism could be weeded out by clearly defining the flaws in the Activist’s reasoning. I would hope, however, that he recognizes some activist Judges are just beyond reason.
5) It does make Miers statement stronger, but I don’t think necessarily any better or worse. They’re playing up different strategies.

It is an interesting thought that she may have expressed these ideas so clearly that she is encouraging a (D) filibuster. But do you think that, in the end, the Democrats will be able to twist the general headline from “a nominee that they recommended” to “a nominee Republicans and Democrats both came to recognize as unqualified"?

They are awfully good at twisting facts.

Comment by Rory Vincent 10/20/2005 - 12:33 pm