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Wednesday, October 12, 2005

Federalist No. 1: The Lesson Too Often Learned

Lately there has been a lot of propaganda supporting Miers that has religious overtones. Focus on the Family leader says he knows certain things about Miers, that he probably shouldn't know. Everyone and their dog knows he is referring to how Miers will vote on Abortion cases. Bush also talks about how religion is a big part of Miers life. The unspoken statement is don't worry about her-she won't let abortion become a constitutional right. She thinks abortion is murder.

But this is the problem. The religious right is obsessed with Roe and Homosexual marriage rather than the proper judicial philosophy. They don't care about Miers' jurisprudence--they only care about how she will vote. Concededly, I too care about how Miers will vote in Roe and Homosexual Marriage cases. However, I care more about why she will vote a certain way in those cases.

I cannot say that Miers will not be a good justice. Professors that I admire and respect have made persuasive arguments on both sides. See here and here.

Fortunately, these professors and others are furious over Miers for the right reasons. Their main concern, I hope, is that we just don't know if she is committed to the right mode of constitutional interpretation. With the Rule of Law in a crisis we want and need certainty. If she is a textualist/originalist, IMHO, she will be a decent justice and will further the Rule of Law and hopefully one day nominations to the Supreme Court won't be a big political mess. However, if she is not a textualist/originalist but rather, a conservative pragmatist, then she will continue the undermining of the Rule of Law-- even if she authors the opinion that overturns Roe.

The Religious Right and political conservatives just don't care about this aspect of the debate. They are too near sighted and results oriented. Their support for Originalism/Textualism has been for the wrong reason. This is not a new revelation, but it is one that someone so trusting as myself too often learns. From the beginning of the Constitution Debates Hamilton warned of results oriented politicking:

And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question.


Maybe its naive of me to think I am on the right side of the question for the right reasons. Maybe it is too easy for me to be principled while in law school and the world of academia. But working with students, academics, practitioners and judges in the Federalist Society gives me hope that there are people on the right side of the question for the rights reasons. I can only hope that Miers is one such jurist.

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