October 19, 2005

The White House was wrong in identifying Harriet Miers' church membership as a prime example of her qualifications to serve on the Supreme Court. But it is entirely appropriate, in fact it is necessary, for Miers to ask herself whether she is behaving within the precepts of her religious beliefs if she accepts the nomination while harboring serious doubts about her commitment to the judicial philosophy held by the President. Regarding this question, it is sufficient to say that any person of principle knows that there is nothing moral about betraying the President who nominated you and the great number of Americans who demand that the courts return to their proper constitutional sphere.  

We presume that Ms. Miers strives to live as a person of principle, unlike the many nominees (mostly Republicans) who have accepted Supreme Court nominations while knowing fully that they do not share the judicial philosophy of the President who nominated them. Therefore, to avoid playing the role of political hypocrite as those nominees did, Miers must ask herself two questions.  

Am I philosophically committed to the idea that the Constitutional principles of separation of powers and Federalism require Federal judges to adhere to the notion of judicial restraint?

If Miers answers "yes" to this question, she will find herself in good company, including that of Thomas Jefferson, whose condemnation of the judicial activism of his time sadly carries more significance today than it did in the early 1800's: "The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our Constitution from a co-ordination of a general and special government [the states] to a general and supreme one alone. This will lay all things at their feet . . ."  

Among contemporaries, Miers will find herself supported by the President who nominated her, judges and judicial scholars who have labored for decades to oppose judicial activism and educate the public about its dangers, and the majority of other Americans who time and again have been outraged by Liberal activist decisions of the past half-century.  

Do I possess the courage to act upon my convictions despite pressures from the Liberal judicial establishment, Liberal dominated law schools, and the Liberal media elite?  

Answering "yes" to this question will not only assure Ms. Miers of her own inner strength it will also help her to be honest about the steadfast courage needed by any judge who stands against the powerful Liberal activists who have undermined the Constitution for fifty years. Indeed, to make herself fully aware of this need for courage, she need only contemplate the perverse power exercised by a Supreme Court which has, for example, established itself as a super legislature, seriously harmed the nation's criminal justice system, and enormously and dangerously increased the power of government, including granting government the right to control political speech during elections and to take a person's home to be turned over to a private developer for "public use."  

A "yes" will also help Ms. Miers appreciate the courage it takes to oppose other patently dictatorial and even unconstitutional acts ironically committed by justices sworn to defend the Constitution. Consider, for example, the Liberal idea of "interpreting" our "living" Constitution with help from laws of other nations, an idea supported even by the moderate Sandra Day O'Connor.    

Justice O'Connor has commented, "I suspect that over time we will rely increasingly, or take notice at least increasingly, [of] international and foreign courts in examining domestic issues." She has also written that "Laws are organic, and they benefit from cross-pollination." And in substance and style that recall Pollyanna instead of a mature adult, she has observed that incorporating foreign law into American judicial deliberations "may not only enrich our own country's decisions . . .it may create that all important good impression."  

Justice Stephen Breyer, the justice who once cited a decision from a court in Zimbabwe, one of the world's great violators of human rights, has this to say about the "international" quality of the Constitution: "We see all the time, Justice O'Connor and I, and the others, how the world really . . . is growing together . . . and how [our Constitution] fits into the governing documents of other nations . . ."  

This dangerous perversity and so much more should cause Ms. Miers to reflect upon the role of courage in the work of a justice, including the courage to set an example for Republican politicians, most of whom have let the nation down by not vigorously and effectively opposing Liberal judicial activism from the Fifties to the current day. As she completes such a reflection, she will realize that of courage she can never possess enough.  

These, then, are the two questions Harriet Miers must ask herself before the Judiciary Committee asks its questions of her. If after contemplating them honestly she vigorously answers both in the affirmative, she ought to continue as the President's nominee. Then, after her confirmation, may she serve the nation long and well.  

Copyright by A.J. DiCintio

This article was first published by MichNews.com on October 19, 2005, and is reposted here with the kind permission of the author.