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
No fair, someone helped her with her homework. /sarc
A good start for Miers, without a doubt.
LOL!
In other words, it is judicial activism to overturn the decisions of previous liberal judicial activists.
definitely. I trusted Bush on this though I admit to having some doubts based on some things, particularly the lecture series and affirm action lawsuit. But, this is impressive.
This is a good start.
read her further explanation......she says, as Roberts did, that you can't overturn precedent just because you disagree with the decision. You need solid judicial, constitutional reasons for doing so.
Oh that is RIPE for the picking. You can't - You can - You can't - You can - You can't - You can. In other words, it depends on what the meaning of is is.
"In other words, it is judicial activism to overturn the decisions of previous liberal judicial activists."
Exactly. If it's judicial activism to undo judicial activism of the past, how then will the many wrong decisions by the SCOTUS ever be rectified?
Her answer is exactly the same as that of John Roberts.
No one who does not "respect" stare decisis and precedent will be confirmed to the SC.
Respecting stare decisis does not mean that a precedent cannot be overturned on the merits.
I trust GWB to be a straight shooter. She may yet prove to be inadequate, but it won't be because she isn't a strict constructionist.
David Frum should pound sand for awhile until he gets her reasoning and testimony, like the rest of us.
You should have brought this up when Roberts said the same thing. :)
Yeah, go figure. What about the first precedent, the Constitution itself? The one actually approved of the people, by the people, and for the people. Why do past activist courts trump that?
No one who does not "respect" stare decisis and precedent will be confirmed to the SC.
Respecting stare decisis does not mean that a precedent cannot be overturned on the merits. Which is why this whole exercise is meaningless.
I agree.
And those sniping about her qualifications should take a chill pill. I would much rather have a hamburger flipper who understands the court's role than a sophisticated Harvard grad who, once on the court, thinks his poop don't stink. And we have about 6 of those right now.
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
As for the illumination that her answers shed on her judicial philosophy, I will hold my opinion until I have time to read and ponder, and can express the connection I see between her words, and her philosophy in action.
Heheh. There are other ways that activism appears too. The construction of words in a statute can turn the effect on its head. So can cherry picking statutory language, see SCOFLAW in the 2000 presidential election.
One of the core problems in the way our politicians are running the country is fear to use impeachment. That is also a "tool of the people," and tends to keep the judges attention on following legislative intent, "the will of the people."
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