Posted on 10/18/2005 8:57:36 AM PDT by rwfromkansas
From the questionnaire she gave to the Senate and posted on NRO:
"The role of the judiciary in our system of government is limited. While its role and its independence are essential to the proper functioning of our tripartite system of government, the courts cannot be the solution to society’s ills, and the independence of the courts provides no license for them to be free-wheeling. And, of course, parties should not be able to establish social policy through court action, having failed to persuade the legislative branch or the executive branch of the wisdom and correctness of their preferred course.
Courts are to be arbiters of disputes, not policy makers. As has been said many times, the role of the courts is to interpret law and not to make it…..
“Judicial activism” can result from a court’s reaching beyond its intended jurisdiction to hear disputes that are not ripe, not brought by a party with standing, not brought in the proper court, or otherwise not properly before the court because of the case’s subject matter. 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. …
“Judicial activism” can occur when a judge ignores the principles of precedent and stare decisis. Humility and self-restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it. Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary. There are clear examples, like Brown v. Board of Education, where revisiting precedent is not only right, it is prudent. Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. Thus, whether the prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling…
Judicial review by the Supreme Court, including determining the meaning of the Constitution and declaring unconstitutional the actions of another branch of government, is a tremendous power exercised by judges who are not accountable to the electorate. Because their power is so great, and because it is largely unchecked, judges must be vigilant in exercising their power in a humble, prudent, and limited way. The courts must always be ready to decide cases according to the Constitution and laws of the United States, and to do so fairly and without regard to the wealth or power of the litigants before them.
But it is just as important for the courts to stand ready not to decide in instances that do not call for a decision….Criticism of courts that overstep their role is justified. We must zealously guard, however, the independence of the courts. While legitimate criticism of judicial activism is healthy, even essential, we must be wary of unduly criticizing judges merely because we disagree with the result in a particular case. Judges are given life tenure and independence to shield them from the potential tyranny of the majority. While life tenure and independence should not be a license to usurp the rule of law in favor of a rule of man, they provide an essential structural protection to ensure that judges are able to make decisions based only on the fundamental vision of the Founders – the rule of law."
The fact that she is pro-life years ago as shown at Bench Memos is highlighted even further by this strict constructionist view. http://www.nationalreview.com/pdf/pro-life.pdf
Did you just skip over this part?
"but reconsideration under appropriate circumstances is also necessary."
This looks really good from what I've read so far. She clearly is in line with the Judicial philosophy that conservatives are looking for.
That sounds good. But you can say whatever you want on the questionaire.
If this is the real Miers, then my only objection would be her being jumped up over more "senior" folks. Or that she might "grow."
Did she write this?
What else did you expect Miss Miers to say in this questionaire; it is actually an answer that even the most liberal nominee could submit and feel comfortable about. It has some of the correct phrasing and key words but in reality in indicates nothing. Also, Senator Spector is very detailed and if he "misunderstood" Mier's opinion on Griswald.....well, she's trying to speak out of both sides of her mouth so as to not "alienate" anyone and fortunately (because I don't trust her) she has neither the scholarship, brains or ability to do as credible a job as Justice Roberts. She simply is unqualified for a seat on the Supreme Court and incapable of a masterful performance in her Judiciary hearing.
I had the same worry over Roberts. Some of my posts then expressed them.
"From the questionnaire she gave to the Senate "
I'd say so.
I think we all understand your point. Unfortunately, things would be utter chaos if the courts just ignored their past decisions. It is how there gradually develops a stability to the law.
Post-Rome law was chaotic and inconsistent in Europe until Justinian's law code and actual organization of the courts, for instance.
But my first reaction is negative. She holds too firm, almost absolutely firm, certain principles, such as "life tenure" for judges. Life tenure is the clear and powerful bias for judges, but it is not absolute. Judges can answer to the people, but the people's direct influence is weak, acting through a legislature that may prefer to be unaccountable for its decisions, preferring to lay the heat at the feet of the Courts.
I'm not saying her answers disqualify her, and I would hardly expect the point I made above to be more than an academic point under current realities and assumptions. But a clear understanding of the Constitution includes some of the facilities that while rarely used, are not never used, and may at some time be used in the future.
I think she has a conventional (meaning not seeing the gap between the present condition and what the Founders intended) view of government. I have the impression that she sees that the way things are now is approximately correct.
Just my gut reaction, first impression, composed without wordsmithing, etc., so keep that in mind as you level your flamethrowers.
Good point. I don't like her answer on judicial activism, precedent, and stare decisis, particularly in the context of Griswold. Her answer seems to view the issue narrowly and from only one perspective.
That case held that married people could use contraceptives. But the court went far over the banks of reason by actively creating penumbras and emanations to come to that conclusion.
Respecting Griswold is judicial activism. Nevertheless, she can legitimately say that she agrees with the holding in Griswold. I do too - married people should be able to use contraceptives. But there's no way in hell she ever better say that she respects Griswold's creation of penumbras and emanations because then she's no better than the activists who created them.
Having said that, chipping away at the notion of penumbras and emanations doesn't necessarily mean overruling Griswold. It can mean emphatically thrashing any opinion which attempts to use that judicial creation to justify any particular holding of the court.
"Thus, whether the prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling…'
One prime example..............the court should consider, not if it is "proven unworkable, ....." but if it is unconstitutional. Obviously in Roe, she could argue that Planned Parenthood and millions of workers depend on Roe for family income...and women and girls are depended now on abortion as a choice to family health.............Roe is now a part of our established "culture"
It is difficult to comment on either “judicial activism” or “judicial restraint” in the abstract, without reference to the particular facts and applicable law of a specific case. On the one hand, courts should not intrude into areas of policy making reserved by the Constitution to the political branches. As Justice Frankfurter has noted, “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society.” In our democratic system, responsibility for policy making properly rests with those branches that are responsible and responsive to the people. It was precisely because the Framers intended the judiciary to be insulated from popular political pressures that the Constitution accords judges tenure during good behavior and protection against diminution of salary. To the extent the term “judicial activism” is used to describe unjustified intrusions by the judiciary into the realm of policy making, the criticism is well-founded.
At the same time, the Framers insulated the federal judiciary from popular pressure in order that the courts would be able to discharge their responsibility of interpreting the law and enforcing the limits the Constitution places on the political branches. Thoughtful critics of “judicial activism” — such as Justices Holmes, Frankfurter, Jackson, and Harlan — always recognized that judicial vigilance in upholding constitutional rights was in no sense improper “activism.” It is not “judicial activism” when the courts carry out their constitutionally-assigned function and overturn a decision of the Executive or Legislature in the course of adjudicating a case or controversy properly before the courts. Chief Justice Marshall made the point clearly in his opinion for the Court in Cohens v. Virginia, 6 Wheat. 264, 404 (1821):
We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.… Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is to exercise our best judgment, and conscientiously to perform our duty.
It is not part of the judicial function to make the law — a responsibility vested in the Legislature — or to execute the law — a responsibility vested in the Executive. As Marshall wrote in his most famous opinion, however, “[it] is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). When doing so results in checking the Legislature or Executive, the judiciary is not engaged in “activism;” it is rather carrying out its duty under the law.
The proper exercise of the judicial role in our constitutional system requires a degree of institutional and personal modesty and humility.
I think President Bush came to the same conclusion.
There must be a law review or something that analyzes the reult if Griswold is upheld by White's logic (substantive due process), and all the emanations and penumbras crap is tossed out. What other cases fall, losing the rationale expressed in the majority opinions other than White's?
And what other cans of worms are opened if substantive due process is elevated?
No. That's my point. It is appropriate; it isn't appropriate; it is; it isn't..... She's not saying anything really. It's just the same verbal mosaic we got from Roberts that allows everyone to hear what they want to hear. Without clear examples of how they define these terms in actual cases -- A PAPER TRAIL -- we really know nothing more than we knew before she said these things. Ginsburg would say these things. Only, clearly Ginsburg thinks an appropriate circumstance is in a case like Lawrence vs. Texas that overturned recent (1986 I believe) precedent.
can you imagine Miss Miers giving such a clear and beautifully expressed response? He took the issues of the judiciary and created poetry to my ears.
Roberts didn't intermingle judicial activism with stare decisis and precedent, which is the smarter way of going about it. Miers' answer indicates an unsophisticated, shallow and narrow understanding of the concepts. Rodney's post above is indicative of the trouble one can get into by intermingling the concepts.
Wish I could help you on those questions but I don't have the answers off the top of my head. I don't think that chipping away in future cases necessarily means past cases must be overruled even if their logical underpinnings are attacked.
If you come across something like that sort of law review on the penumbras and/or due process questions I'd be interested as well.
TGOFP wrote: Which is why this whole exercise is meaningless.
That's why "judicial philosphy" is, in the end, a marginal issue, mere window dressing. Judges are human and they make decisions just like the rest of us do. The skillful ones elegantly weave their views into the structure of some pre-defined "judicial philosophy" - but it's really just smoke and mirrors. This is what all lawyers do, and the best ones do it very well - making it seem as if the viewpoint they represent is the only and obvious answer, based on both the facts and the law. Many times in the history of the Supreme Court, precedent has been followed religiously, yet other times precedent has been cast aside. That's the way it always will be. It all comes down to the character of the justices, not any so-called judicial philosophy.
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