Harriet Miers on Judicial Activism

Discussion in 'Politics' started by KenH, Oct 19, 2005.

  1. KenH

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    28. Judicial Activism: Please discuss your views on the following criticism involving “judicial activism.”

    The role of the Federal judiciary within the Federal government, and within society, generally, has become the subject of increasing controversy in recent years. It has become the target of both popular and academic criticism that alleges that the judicial branch has usurped many of the prerogatives of other branches and levels of government.

    Some of the characteristics of this “judicial activism” have been said to include:

    a. a tendency by the judiciary toward problem-solution rather than grievance-resolution;

    b. a tendency by the judiciary to employ the individual plaintiff as a vehicle for the imposition of far-reaching orders extending to broad classes of individuals;

    c. a tendency by the judiciary to impose broad, affirmative duties upon governments and society;

    d. a tendency by the judiciary toward loosening jurisdictional requirements such as standing and ripeness; and

    e. a tendency by the judiciary to impose itself upon other institutions in the manner of an administrator with continuing oversight responsibilities.

    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. My own beliefs about these issues have been formed over many years, and find their roots in the beginning of my legal career.

    Beginning during my two years as a Federal district court clerk, I was taught by the judge for whom I clerked, Judge Joe E. Estes, the importance of Federal courts’ keeping to their limited role. His first task – and therefore mine in assisting him – in every case before him was to examine whether the case was properly in court. Was there a party with standing? Did subject matter jurisdiction exist? Was venue proper? These were all questions – and all related questions going to whether the court had subject matter jurisdiction – that he wanted answered before any others. If the answer was “no” to any of them, the case was dismissed promptly. These basic rules of Article III impose a clear responsibility on courts to maintain their limited role.

    “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.

    As I entered private practice, I grew to appreciate even more the importance of predictability and stability in the law, and came to believe that those values are best served by a rigorous and focused approach to the law. 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. Legal practice also taught me the importance of stability in the law. A lawyer must be able to advise her clients based upon the existing case law. Courts should give proper consideration to the text as agreed upon, the law as written, and applicable precedent. Then our system of justice can achieve appropriate stability, clarity, and predictability. Those values cannot be effectively pursued unless the law and the facts determine the outcome of a case, rather than the identity of the judge before whom a case is brought. Time and again, I saw that principle in real world cases. The importance of the rule of law, as opposed to peculiarities of specific judges, was just as critical in small matters involving individuals as it was big litigation involving millions of dollars.

    “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.

    As my career progressed, I became an elected official charged with legislative power. In that role, I was able fully to appreciate the difference between the role of those who are to make the law and those who are to interpret it. On the Dallas City Council, we dealt frequently with the legal issues facing the City, and with the legal and constitutional implications of our actions. We set policy for the City by, among other devices, passing ordinances. We understood our role, and we expected the courts to understand theirs – part of which was to respect the policy-making prerogatives of the City Council. There was a vast difference between our vote as a policy matter to prevent the desecration of the American flag, and the job of the courts (including the Supreme Court) to rule whether such an ordinance was constitutional.

    Finally, my time serving in the White House, particularly as Counsel to the President, has given me a fuller appreciation of the role of the separation of powers in maintaining our constitutional system. In that role, I have frequently dealt with matters concerning the nature and role of the Executive Power. And by necessity my work has required that I deal with the power of Congress in relation to the Executive. The remaining, and essential, component in our system is of course the power of the Judiciary. The Judicial Branch has its own role to play in the separation of powers. It is part of the system of checks and balances. In interpreting the law in the course of deciding contested cases and controversies, the Supreme Court holds the Executive and Legislative Branches to their respective constitutional roles.

    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.

    My experience working for Judge Estes provided another valuable lesson. He decided every case according to the law and facts, and he did not worry about the potential for a negative reaction to his decisions. He felt no pressure to please anyone. His only lodestar was the law. The example of Judge Estes helped to instill in me an appreciation for the importance of judicial independence that has only grown stronger over time. 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.

    - LINK
     
  2. fromtheright

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    "Some of the characteristics have been said to include"?

    And the rest of it has been spoken like a Breyer or Ginsburg opinion. Even the liberal Justices couch their opinions in terms of precedent and sometimes even reach back to history.

    "His first task – and therefore mine in assisting him..."? OK, so she was doing her job in pursuing the wishes of her boss. Though there has been some controversy over standing, it is hardly one of the bright-line issues that divides conservatives and liberals, and often not even constructionists and activists.

    Virtually every one of the points she has made has been made at one time or another by the liberals on the Court in one of their opinions. One of the very real problems in picking a stealth candidate is that no one knows where she stands on issues that come before the Courts:

    (1) Tenth Amendment federalism issues.

    (2) Ninth Amendment questions, including privacy.

    (3) First Amendment Establishment clause issues. I'm sorry but church membership hardly answers those questions.

    (4) "Extra-constitutional" sources such as foreign law.

    (5) War-making/foreign affairs issues.

    (6) Interstate commerce questions as well as eminent domain.

    A nominee with a record of published writings is needed to clearly identify someone who will not respect not simply Court precedent but the Constitution. The argument will surely be made that the expectations conservatives have of SCOTUS nominees are excessive given what has been asked of previous ones. The difference is that the stakes are higher because:

    (1) the current state of Constitutional law poses clear dangers to our society, not to mention the separation of powers. The fact that things have gotten as bad as they have with the Courts cries out for redressing the balance on the Court immediately in order to, if not reverse, then at least stem the slide.

    (2) the current balance itself. Even [prematurely] counting Roberts as a conservative, we are now with three conservatives, four liberals (Stevens, Breyer, Ginsburg, Souter) and the swing vote of Kennedy, which is a generous categorization for him, from a conservative perspective.

    Many of us voted for President Bush on his promise to appoint Scalias and Thomases. I have been very pleased with the appellate court nominees that I've known of. The critical difference is that until SCOTUS starts coming out with some sensible opinions, those conservatives on the lower courts will still be voting to uphold bad precedents. Until the balance on the High Court is reversed, those appellate court nominees will leave little legacy and little real impact.

    If I was in the Senate facing a nominee with such a paucity of pluses, I would be casting a firm "No" vote. Yes, perhaps something will come out in the hearings, but I doubt it.
     
  3. KenH

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    Mark my words, ftr, if Miers is not confirmed then President Bush will nominate someone whom those opposed to Miers on the Right will like even less.
     
  4. fromtheright

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    I disagree. If he pulls back on Miers nomination, it will be because of the conservative backlash, including that in the Senate. He's not likely to overcome it by snubbing it.
     
  5. go2church

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    What is troubling me is that conservatives are getting distracted by the abortion debate (as usual) and missing out on the debate about many of the things FTR mentioned in his earlier post. What good is it to outlaw abortion, yet allow the government to control every aspect of our lives?

    I contend that Bush has talked like a Republican but governed like a Democart, this nomination is no different.
     
  6. hillclimber

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    Exactly, and I hope he understands that.
     
  7. hillclimber

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    I think it has become a focal point and rightly so, because a nation that murders it's progeny is a doomed nation.
    It is a sympton of a nation seperate/ing from God.

    I agree he is ruling like he's a democrat. He hasn't seen a social program he doesn't like.
     
  8. fromtheright

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    I'm afraid I agree with G2C and hillclimber but allow me to throw out some bright spots as devil's advocate:

    --his conduct of the war in Afghanistan and the nation-building effort there.

    --the conduct of the war in Iraq, if you agree with same.

    --his response to the 9/11 attacks, including the PATRIOT Act, again if you agree.

    --his backing out of the Kyoto Accord (or was that Clinton?)

    --his backing out of the ABM Treaty (though it was a dead letter with the demise of the Soviet Union, President Clinton had decided to remain bound by its terms).

    --his lower court nominees (though, as I said above, I don't believe it means much without a solid conservative/constructionist force on the Court).

    I must agree, though, there is certainly more to decry than praise, from a conservative perspective; I think that on the whole he has done a magnificent job on foreign policy, though.
     
  9. church mouse guy

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    I think that abortion is tough to end for many reasons.

    Firstly, the opponents of abortion are split into two groups, those who oppose all abortions and those who would allow self-defense abortions for cases of rape, incest, and the life of the mother (reportedly less than one-half of one percent). The first group refuses all compromise and saying that all die instead of only 1/2 of one percent die.

    Secondly, abortion serves the interests of white racism and black separatism, which is financed by white racism. This is proven by the high number of blacks having abortions, disproportionate by any standard. http://www.blackgenocide.org/

    Thirdly, abortion serves the playboy crowd who advocate sex outside of marriage without responsibility.

    Fourthly, many people think that it is okay to murder. They are going for sick people next. Didn't I read where Florida is going to limit Medicaid to the poor?
     
  10. go2church

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    Don't know if white racism is being served by abortion ... the higher abortion rates probably have more to do with a larger percentage of minorities having teenage pregnecies and then turning to abortion as a means of "solving" the problem.

    Afgan - seems to being going much better then Iraq that is for sure.

    Iraq - they are having elections, that is good; but the hearts of the people still seem to be reluctant. I think Iraq is going to be the only winner in this, which isn't a bad thing. But for the US it is at best a push.

    Patriot Act - a civil rights disaster

    Kyoto - I can't remember who came to their senses on this one

    ABM - with the rise of North Korea, Iran and China, seems like a good idea to "ignore" this (that is Anti Ballistic Missle treaty right)

    Lower Courts - better, although I agree they are of little importance if you end up with presto-chango Supreme Court judges
     
  11. church mouse guy

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    So, Pastor are you against abortion or not?
     
  12. Johnv

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    I for one ams sick and tired of the abortion issue being a litmus test issue. Look, I care about one thing and one thing only: will this nominee faithfully interpret the Constitution in regards to cases brought before SCOTUS? I don't care if the person is a liberal or conservative, I don't want judicial activism from the bench.
     
  13. fromtheright

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    G2C,

    Re the PATRIOT Act, I think the concern is misplaced but I understand it.

    Yes, ABM = Anti-Ballistic Missile. What Bush did, though, wasn't simply to ignore but to withdraw from it, or as I think the language of the treaty required, a six-month advance warning by one party of intent to abrogate it. This gave us freedom to deploy SDI.
     
  14. go2church

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    If that was directed toward to me, I am against abortion and capital punishment for that matter, (although I must admit guys like Saddam make this a very difficult position to maintain). But when appointing someone to the highest court in the land, it cannot be the only issue that is mentioned or of concern to those that consider themselves conservative.
     
  15. fromtheright

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    Re abortion, I don't consider myself a single issue voter but I think it is a legitimate issue too to those who want, as Johnv said, justices who will faithfully interpret the Constitution. Roe is bad law. I'm against abortion but the best thing to do is to overturn Roe and send the issue back to the states where it should be.
     
  16. church mouse guy

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    If that was directed toward to me, I am against abortion and capital punishment for that matter, (although I must admit guys like Saddam make this a very difficult position to maintain). But when appointing someone to the highest court in the land, it cannot be the only issue that is mentioned or of concern to those that consider themselves conservative. </font>[/QUOTE]Well, Pastor, surely you don't consider yourself a conservative, do you? And I consider you a liberal for being against capital punishment, commanded to Noah, as you know.

    As for abortion, I think it is of more interest to the Democrats since their platform calls for abortion being retained as legal since it is the basis for their contributions. As far as I know only the GOP has a pro-life platform.

    Of course, abortion is a litmus test but it is an unspoken litmus test. I think that the Miers nomination is in trouble with Catholics, always unreliable allies. As far as I am concerned, I hope she is confirmed but I don't care if she is not because I consider Bush weak and likely to be even weaker after the 2006 elections. The GOP is like a sports team that cannot execute plays when they have the ball because of weak players on the team.
     
  17. Johnv

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    So has the definition of "liberal" now been confined to one or two issues?

    The notion that "if you're conservative on 99 issues, but not on 1, then you're a liberal" seems a bit overkill to me.

    However, there are many "perceived conservative" issues that are in fact liberal. FOr example, KJVOism is liberal (requires adding to scripture). I submit that requiring a belief in the death penalty is liberal (it's not required of NT believers).
     
  18. church mouse guy

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    Okay, I will put you in left field with the Pastor since you jumped to the conclusion that I was limiting the discussion to one or two issues and you have been around for 15,000 posts--

    KJVO is not liberal but then I am not a member of that group and never have been. No one has required anything of anyone except you evidently. The constitution gives one freedom of religious expression so you are free to believe anything that you like.
     
  19. Johnv

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    Hey, it's is YOU who made the implication that not believing as you do regarding the death penalty makes you a liberal.

    As for me, interesting that you would now paint me as a liberal for simply poiting out your incinsestency. Odd.

    There's no way on earth anyone could paint me as a liberal. Moderate conservative, yes. Liberal. Not on your life. A hyperfundamenalist might paint me as a liberal, but to them, Roy Moore, Lou Sheldon, and Jerry Falwell are liberals.

    KJVOism is indeed liberal, since it adds major doctrine to scripture.

    Are you looking in the mirror when you say that? You wave the "liberal" label on someone and then imply that you have not "required anything of anyone".
    I adhere strictly to scripture, even when other Christians think they have the monopoly on that.
     
  20. go2church

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    If that was directed toward to me, I am against abortion and capital punishment for that matter, (although I must admit guys like Saddam make this a very difficult position to maintain). But when appointing someone to the highest court in the land, it cannot be the only issue that is mentioned or of concern to those that consider themselves conservative. </font>[/QUOTE]Well, Pastor, surely you don't consider yourself a conservative, do you? And I consider you a liberal for being against capital punishment, commanded to Noah, as you know.

    As for abortion, I think it is of more interest to the Democrats since their platform calls for abortion being retained as legal since it is the basis for their contributions. As far as I know only the GOP has a pro-life platform.

    Of course, abortion is a litmus test but it is an unspoken litmus test. I think that the Miers nomination is in trouble with Catholics, always unreliable allies. As far as I am concerned, I hope she is confirmed but I don't care if she is not because I consider Bush weak and likely to be even weaker after the 2006 elections. The GOP is like a sports team that cannot execute plays when they have the ball because of weak players on the team.
    </font>[/QUOTE]Jesus not Noah it the criterion for which I interpret scripture. If you think I am liberal, I don't know what you're going to do if you run into a real liberal. Thanks for adding absolutely NOTHING to the conversation.
     

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