Thursday, October 27, 2005
Harriet Miers Withdraws; Pat Tillman redux
HARRIET MIERS NOMINATION
Alexander Hamilton, in Federalist #76, on The Appointing Power of the Executive
The more I though about the Harriet Miers nomination, the sicker I got. And now that she has withdrawn herself from consideration for the Court, I feel only slightly better. Perhaps, as a practical matter, having a conservative Executive and Legislature waste their opportunity on a nominee who seems something less than a constitutional scholar and intellectual powerhouse is a comfort to the left. Maybe things would be a lot worse in this country if Michael McConnell sat on the high Court alongside Justices Scalia and Thomas, but at least we could take comfort in the notion that his decisions would be based on an understanding of the Constitution and legal history that surpasses the common individual and even the common lawyer. In contrast, the most prominently suggested reason why we should trust Harriet Miers’ judgment was her unwavering loyalty to the current President. But the foundation of our legal system rests on the independence of the judiciary, legislative, and executive branches. The core of the integrity of our laws lies in the understanding that they are drafted and passed by one governmental body, subject to the approval and enforcement by another, and always exposed to challenges by individuals who believe these two branches have failed their duties to uphold the Constitution. If these challenges become simply the reaffirmation of approval granted by the executive for no independent reason but rather based on the circularity that the executive approved it in the first place, our entire system of government is fundamentally undermined. The governed have given their consent time and again to be subject to the laws of our Government – but this consent has been predicated on the workings of a tripartite government with an independent judiciary. Harriet Miers’ nomination threatened this elemental aspect of our nation.
Of course, I ignored the other reason put forth by the administration why America should trust Harriet Miers with one of the most important jobs in the nation – her evangelical faith. Nothing needs to be said here – one look at the principles enshrined in our Constitution highlights the unsettling nature of this assertion:
Article VI, Section 1:
PAT TILLMAN – DEMOCRAT! ANN COULTER – SLIME!
Pat Tillman was lauded as a hero upon his death under friendly fire in Afghanistan after taking part in the invasion of Iraq. Stu discussed this on our blog a year later, respecting Tillman for fighting for his beliefs and questioning why sacrificing a big NFL salary made him more of a hero than the rest of the troops. The right used his story to rally the country around this fallen American, the true hero embodying the American spirit, or, as Ann Coulter put it, “an American original — virtuous, pure and masculine like only an American male can be.” This image was exploited to encourage support for the war in Iraq and the broader war against terrorism.
But a few weeks ago the Tillman’s spoke out. They dispelled the myth of a Iraqi hating commando fighting for what the President said was right. His mother told the press that her son was critical of the administration, supported the war in Afghanistan but not the war in Iraq, and had a political bent more in line with uber-liberal Noam Chomsky than with President Bush – he even had a meeting with Chomsky scheduled upon his return to the States (a fact confirmed by Chomsky himself). He even called the war in Iraq “fucking illegal.”
These revelations should not change one’s opinion of Tillman as a brave soldier who gave up a high-paying job as a professional athlete to defend his country, right? None of the crucial facts changed – he took leave from the Arizona Cardinals and from a 6 month long job paying millions of dollars, rejoined his Army Ranger company, fought in Iraq, fought and died in Afghanistan, all for his beloved United States.
Ann Coulter thinks everything has changed. When told of this breaking revelation, she said “I don’t believe it” and insisted that it was just liberal agitprop, questioning whether it came from Dan Rather’s sources. This is absolutely disgusting. Does she really have such a hard time believing a Democrat could love this country enough to die for it? Does she think less of Tillman’s sacrifice because he wanted to sit down with Noam Chomsky. Does Coulter really think this war can be won with an army of Republicans?
Maybe that’s not the worst idea.
Alexander Hamilton, in Federalist #76, on The Appointing Power of the Executive
He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. Harriet Miers, for example.(Ok, so that quote is not perfectly accurate. Guess which 4 words I added.)
The more I though about the Harriet Miers nomination, the sicker I got. And now that she has withdrawn herself from consideration for the Court, I feel only slightly better. Perhaps, as a practical matter, having a conservative Executive and Legislature waste their opportunity on a nominee who seems something less than a constitutional scholar and intellectual powerhouse is a comfort to the left. Maybe things would be a lot worse in this country if Michael McConnell sat on the high Court alongside Justices Scalia and Thomas, but at least we could take comfort in the notion that his decisions would be based on an understanding of the Constitution and legal history that surpasses the common individual and even the common lawyer. In contrast, the most prominently suggested reason why we should trust Harriet Miers’ judgment was her unwavering loyalty to the current President. But the foundation of our legal system rests on the independence of the judiciary, legislative, and executive branches. The core of the integrity of our laws lies in the understanding that they are drafted and passed by one governmental body, subject to the approval and enforcement by another, and always exposed to challenges by individuals who believe these two branches have failed their duties to uphold the Constitution. If these challenges become simply the reaffirmation of approval granted by the executive for no independent reason but rather based on the circularity that the executive approved it in the first place, our entire system of government is fundamentally undermined. The governed have given their consent time and again to be subject to the laws of our Government – but this consent has been predicated on the workings of a tripartite government with an independent judiciary. Harriet Miers’ nomination threatened this elemental aspect of our nation.
Of course, I ignored the other reason put forth by the administration why America should trust Harriet Miers with one of the most important jobs in the nation – her evangelical faith. Nothing needs to be said here – one look at the principles enshrined in our Constitution highlights the unsettling nature of this assertion:
Article VI, Section 1:
The Senators and Representatives . . . and all executive and judicial Officers . . . shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.She has withdrawn herself from consideration, a good thing for our government. The next nomination, however, carries the threat of being bad for our citizens.
PAT TILLMAN – DEMOCRAT! ANN COULTER – SLIME!
Pat Tillman was lauded as a hero upon his death under friendly fire in Afghanistan after taking part in the invasion of Iraq. Stu discussed this on our blog a year later, respecting Tillman for fighting for his beliefs and questioning why sacrificing a big NFL salary made him more of a hero than the rest of the troops. The right used his story to rally the country around this fallen American, the true hero embodying the American spirit, or, as Ann Coulter put it, “an American original — virtuous, pure and masculine like only an American male can be.” This image was exploited to encourage support for the war in Iraq and the broader war against terrorism.
But a few weeks ago the Tillman’s spoke out. They dispelled the myth of a Iraqi hating commando fighting for what the President said was right. His mother told the press that her son was critical of the administration, supported the war in Afghanistan but not the war in Iraq, and had a political bent more in line with uber-liberal Noam Chomsky than with President Bush – he even had a meeting with Chomsky scheduled upon his return to the States (a fact confirmed by Chomsky himself). He even called the war in Iraq “fucking illegal.”
These revelations should not change one’s opinion of Tillman as a brave soldier who gave up a high-paying job as a professional athlete to defend his country, right? None of the crucial facts changed – he took leave from the Arizona Cardinals and from a 6 month long job paying millions of dollars, rejoined his Army Ranger company, fought in Iraq, fought and died in Afghanistan, all for his beloved United States.
Ann Coulter thinks everything has changed. When told of this breaking revelation, she said “I don’t believe it” and insisted that it was just liberal agitprop, questioning whether it came from Dan Rather’s sources. This is absolutely disgusting. Does she really have such a hard time believing a Democrat could love this country enough to die for it? Does she think less of Tillman’s sacrifice because he wanted to sit down with Noam Chomsky. Does Coulter really think this war can be won with an army of Republicans?
Maybe that’s not the worst idea.
# posted by Anonymous @ 10:31 AM 
Comments:
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how dare you bury my white sox post? are you only posting when it makes me unhappy? because then you go on to attack my three favorite people in the world!
Anyway, Coulter is a moron- to tear her down is like furiously debunking a toddler who believes in Santa Claus.
And so is Miers, probably. But Pat Tillman's mostly OK with me.
Anyway, Coulter is a moron- to tear her down is like furiously debunking a toddler who believes in Santa Claus.
And so is Miers, probably. But Pat Tillman's mostly OK with me.
sorry about burying your post. i didn't know it was up when i posted. but i guess you should just be happy that i'm back to the blog.
# posted by 
: 1:10 PM
: 1:10 PM
Why does a person's personal beliefs or anything matter for a supreme court judge? Isn't a matter of just comparing a current law to the constitution and existing law (That was oversimplified but I assume you understand)? Isn't it ideally objective?? Shouldn't we have computers as Supreme Court justices rather than people?
-Smoovalot
-Smoovalot
# posted by : 2:26 PM
: 2:26 PM
personal beliefs such as religious faith should not matter. that's why its not a good sign when it is one of a person's strongest qualifications according to her supporters.
personal beliefs like this do matter, however, in some circumstances. if one believes biblical law is higher and more important than constitutional law, then those personal beliefs create a problem for a justice. It is the law that abortions are legal, except for certain circumstances, and only the supreme court or constitutional amendment can change that. If a lower court judge rules that a person is not allowed to have an abortion because that judge believes the bible says it is wrong, then that judge is not properly performing her duties.
Personal are important, however, in the way they shape constitutional law, so it is not possible to have a computer do the work. if you read the first clause of the first amendment, "congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," could you tell me what that meant without any doubts? would the person next to you say the same thing? could you write a computer program that gave this clause the absolute correct meaning?
Or how about whether the equal protection clause of the 14th amendment prohibits affirmative action programs. ("no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.") Is it clear what this means? if we go by what the text says, is seems improper to use affirmative action. But perhaps the text actually permits affirmative action if it is remedying other violations of equal protection of the laws. and if we look to the original meaning of the term, it is almost perfectly clear that the writers of the amendment and the congress that passed it would allow affirmative action.
or how about the 4th amendment, protecting persons, houses, papers, and effects, against "unreasonable searches and seizures." Does this phrase have a different meaning today, with advanced technology. is it reasonable to use thermal imaging to "look" inside one's home? if so, is it because it is reasonable today since such technology is readily available not just to the police but to ordinary citizens, or is it because Thomas Jefferson would not have had a problem with it. Or would he have?
All of these issues are in a sense "personal beliefs." To use a computer, or to have one "objective" interpretation, would not only miss various legitimate (some more than others) perspectives, but also would be making a choice - based on a belief of the proper interpretation - of what method this computer or standard of objectivity should embrace.
personal beliefs like this do matter, however, in some circumstances. if one believes biblical law is higher and more important than constitutional law, then those personal beliefs create a problem for a justice. It is the law that abortions are legal, except for certain circumstances, and only the supreme court or constitutional amendment can change that. If a lower court judge rules that a person is not allowed to have an abortion because that judge believes the bible says it is wrong, then that judge is not properly performing her duties.
Personal are important, however, in the way they shape constitutional law, so it is not possible to have a computer do the work. if you read the first clause of the first amendment, "congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," could you tell me what that meant without any doubts? would the person next to you say the same thing? could you write a computer program that gave this clause the absolute correct meaning?
Or how about whether the equal protection clause of the 14th amendment prohibits affirmative action programs. ("no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.") Is it clear what this means? if we go by what the text says, is seems improper to use affirmative action. But perhaps the text actually permits affirmative action if it is remedying other violations of equal protection of the laws. and if we look to the original meaning of the term, it is almost perfectly clear that the writers of the amendment and the congress that passed it would allow affirmative action.
or how about the 4th amendment, protecting persons, houses, papers, and effects, against "unreasonable searches and seizures." Does this phrase have a different meaning today, with advanced technology. is it reasonable to use thermal imaging to "look" inside one's home? if so, is it because it is reasonable today since such technology is readily available not just to the police but to ordinary citizens, or is it because Thomas Jefferson would not have had a problem with it. Or would he have?
All of these issues are in a sense "personal beliefs." To use a computer, or to have one "objective" interpretation, would not only miss various legitimate (some more than others) perspectives, but also would be making a choice - based on a belief of the proper interpretation - of what method this computer or standard of objectivity should embrace.
# posted by : 3:29 PM
: 3:29 PM
So then it seems to me that there is an inherent flaw in the way we choose our supreme court justices. I think they are appointed for life so that they are not subject to politics and public opinion and what not. But if they are deciding what is reasonable and it is in fact subjective, should they not be subject to public opinion? This subjective area of the law is decided upon by people who were appointed during whatever party's dominance and thus the supreme court is subject to a degree to this party's beliefs for life. Do you agree with me?
# posted by : 8:43 AM
: 8:43 AM
A bit. But the Court's role is to protect the Constititution against encroachment by the legislative or executive branches. If its membership is subject to ongoing control by either or by both, it will be no more than a nearly automatic stamp of approval on whatever that branch does. there would be no reason to have a Court.
If subject to a popular vote, Judges would vote based only on popular opinion. In this case, we would have no stability whatsoever. Our governing principles would be whatever is the feeling of the day. Don't like taxes? Fine, Congress is no longer allowed to collect them. Don't like African Americans in your schools? ok, you can decide that for yourself. Want police officers to be able to stop and search everyone who appears to be of Middle-Eastern decent? Go ahead - the police state is yours to have!
We already have two branches of government subject to popular opinion, plus state legislatures and governors, and they write and enforce the laws. An independent judiciary is necessary to make sure those laws comply with the standards of the Constitution, even though those standards change a bit over time. Which just shows that the Court does pay some attention to public opinion. But at a much more gradual pace (because of being bound by precedent, and because they are protected from the momentary whims of the public by their independence), which avoids changing the law based on each new poll, or the polls during an election year. But without any such standards, we have no way to know what government can or cannot do.
If subject to a popular vote, Judges would vote based only on popular opinion. In this case, we would have no stability whatsoever. Our governing principles would be whatever is the feeling of the day. Don't like taxes? Fine, Congress is no longer allowed to collect them. Don't like African Americans in your schools? ok, you can decide that for yourself. Want police officers to be able to stop and search everyone who appears to be of Middle-Eastern decent? Go ahead - the police state is yours to have!
We already have two branches of government subject to popular opinion, plus state legislatures and governors, and they write and enforce the laws. An independent judiciary is necessary to make sure those laws comply with the standards of the Constitution, even though those standards change a bit over time. Which just shows that the Court does pay some attention to public opinion. But at a much more gradual pace (because of being bound by precedent, and because they are protected from the momentary whims of the public by their independence), which avoids changing the law based on each new poll, or the polls during an election year. But without any such standards, we have no way to know what government can or cannot do.
# posted by : 9:38 AM
: 9:38 AM
for a more eloquent argument, if perhaps in dated language, see http://www.constitution.org/fed/federa78.htm
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# posted by : 9:39 AM
: 9:39 AM << Home
