Advice and consent
As much as I'm not thrilled with the nomination of Harriet Miers, reading the back-and-forth discussion has led me to one conclusion.
If a Senator believes the nominee is qualified to serve on the Supreme Court, the Senator must vote for the nominee. It doesn't matter if he or she believes there are hundreds of better qualified nominees. After all, it is only the place of the Senate to offer advice and consent. The President nominates the judges.
Voting against Harriet Miers because you don't like her politics allows Democratic Senators to do the same to any nominee Republicans nominate in the future.
If you oppose the candidate, do it because she isn't qualified. If you vote in those terms, it is easier to vote against any Democratic President's nominees on the ground that they aren't qualified. (One can argue that most aren't, if they have a history of legislating from the bench. Activism is not the Constitutional role of a judge.)
posted by Greg @ 10:42 PM
2 Comments:
1. What do you mean by activism, "legislating from the bench"? If you mean that people resort to courts to get results they can't get from legislatures, then the Rehnquist court is the most activist of all -- it's overturned about thirty-six statutes since 1985.
2. If by "activism", you really mean make a decision that you disagree with, then aren't you saying that it's OK to vote against confirming a judge because of a disagreement -- which contradicts your first point?
3. If it's wrong to vote against a judge because you disgaree philosophically with him or her, do you think it was wrong for the Senate Judiciary Committee to hold up a large number of Clinton's nominees on judicial grounds?
Judicial activism means deciding cases in a manner out of scope with judicial review, adjudicating whether a law is constitutional or otherwise solving conflicts between laws. Overturning a federal law restricting guns around schoolyards because the court decides it's clearly outside of Congress's authority isn't judicial activism, it's judicial review.
An actual example of legislating from the bench was that judge who ordered massive tax increases to fund ordered improvements to the Kansas City school system. That is the job of the legislature, not the courts.
Also fitting the definition is finding new rights or restrictions in a very loose reading of the law. Roe vs. Wade is often criticized along those lines. A hypothetical case of judicial activism in support of a conservative principal would be the following:
"The law of the state restricts sellers of pornographic materials from locating within 1000 yards of a church. People say grace with meals, a religious function, so the law extends to ban sellers of pornography from locating within 1000 yards of individual homes."
(If the legislature wished to ban sellers of pornography from locating within 1000 yards of homes, they would have written the law that way.)
Liberals have tended to confuse judicial activism with overturning laws.
I can't comment on the Clinton nominees, since I'm not familiar with their qualifications. And there's also the political reality to consider (which I'm not familiar with either). There's the tradition of clearing nominees with the home state senators, and there are probably traditions with regards to nominating close to election time.
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