Miers

Quite a Dustup:

Looks like the Hall had a fun time yesterday. Good! Just such a hearty exchange of views is what I have in mind for the place.

It was an impressive exchange. Although some have said that the blogosphere is rushing to uninformed opinion, in fact I think the opposite is true: the blogosphere is generating informed analysis, and distributing informed analysis that arises elsewhere.

On the third day since the nomination, I find that my sense that this nomination must be defeated has only hardened. I will attempt to explain why, both by argument and by distributing analysis, as above.

The strongest argument against opposing Miers is voiced by Cassandra, couched in terms of fairness combined with political savvy. She argues that, on the one hand, it is entirely unfair to judge Miers before her hearings; and on the other, that Bush is wise not to support "the base" in this matter because it is the middle, and not the base, that elects Presidents and wins control of the Senate.

After consideration, I must reject the first argument. This is a very serious matter: a lifetime appointment to the Supreme Court, at which the most contentious issues of the next few years will be decided. We must be prepared, as citizens, to drive our representaties in the Senate one way or the other. That will require sustained pressure over time, and time is short. Once her hearings have begun, they will last only a few days; then the Judiciary Committee will vote, and then the Senate as a whole. If confirmed, she would take office the same day.

If there is to be any hope of derailing the nomination, we must begin now. We cannot wait until the hearings.

I do not mean to say that we should be unfair. Rather, I mean we must honestly begin raising and considering the problems, and applying pressure to our Senators today and tomorrow, not during and after the hearings. It is the only hope for success, should it prove that Miers is as unqualified as she appears to be. The Senate is capable of ignoring the loudest outburst, for a few days, reasoning that 'the mob' will move on. It is only if we begin now that we will have time to make them consider their duty carefully.

As for the argument against extremisim, I share it. However, I would remind Cassandra that I share her irritation -- not with the term "RINO," which she feels is being wrongly directed at her -- but with the term "DINO," which has been wrongly directed at men such as Zell Miller and me.

What "the base" wishes to advance here is a judicial philosophy that is the political center, except that most people haven't really thought about it yet. The philosophy, simply, is that "when there is a disagreement about what the law means, the proper way to resolve it is by looking at what the people who wrote it intended it to mean. If we find that we no longer like that meaning, the legislature rather than the courts is the proper venue for changing the law."

This philosophy is, I think, destined to become the standard way of reading the law, simply because it is the only one that doesn't make the law into sands that shift underfoot. It is the only philosophy that restrains the power of the court.

Restraining the court's power is one of the most critical issues facing the Republic today, because the USSC has found itself above the normal checks and balances. They may strike down Congressional laws and Presidential orders as unConstitutional. They are the final appeal. There is no counterbalance.

Furthermore, USSC solutions are by their nature fundamental -- they touch every state, Red and Blue, with no distinction. This is because the foundation of their power to reach into every aspect of American life is the 14th Amendment's approach to civil rights. All Americans have the same civil rights.

These two facts have put us in a position in which the court's power must be checked, in order to assure the stability of the Republic. Barring a major Constitutional change, the only way to do it is by appointing justices who will interpret the law as the law was written, and not as they would prefer it or according to what they feel are current conditions. They must not remake the law to mean something it did not mean before.

This is why I feel that those who insist on a known judicial philosophy are right to do so. It is true that the Thomas confirmation was hideous; but it is also true that Thomas is the light of the court. We should want more like him. We ought to have the fight, if a fight is needed to get such Justices.

So much for reasoning. Now, for dissemination:

Feddie is calling for President Bush to withdraw the nomination. That would suit me fine; otherwise, I feel we shall have to defeat it the hard way.

His reasoning is largely drawn from David Frum, who I think is correct in this case. I believe Frum's points address the ones that Daniel was capably defending yesterday and so, like Feddie, I will refer to him.

Meanwhile, George Will reminds us that President Bush knowingly signed into law Campaign Finance Reform, having admitted that he did not think it was Constitutional. That being the case, we must be vigilant against further weakness of the spine in upholding the Constitution.

I feel we have a duty before us. We must do what we can to unmake this nomination, or to defeat it. Either the President will listen to us, or the Senate must: or else, we take our chances with the foundation of the Republic.