Carol Platt Liebau: On George Will's Column

Saturday, October 22, 2005

On George Will's Column

Excerpts of George Will's latest column are posted and commented upon here, over at Confirm Them. And to some of these excerpts, I would just add a couple of notes.

Not all Miers supporters -- or anti-anti-Miers people -- have "cynically" called her opponents "sexist." Indeed, some of us have, in fact, defended opponents from that charge, and criticized those who made it.

Second, I agree with Will that constitutional reasoning can often be enormously important -- witness how Chief Justice Rehnquist and William Brennan, when both were in the minority, penned dissents that were enormously influential in drafting later majority opinions. And it is important to replace legislative reasoning with judicial reasoning.

But how is Will so sure that Miers is either unwilling or incapable of doing so? What does he know that he isn't telling us -- because I haven't heard any dispositive evidence, yet, that Miers either can't or won't live up to his standard. In addition, I can't go as far as believing, as some do that it's perhaps always better to have the "wrong" outcome with excellent reasoning than the "right" outcome even with some flawed reasoning. After all, is it really worse to have a "concurrence in the result" even with a little wacky stuff in it than a dissent in cases dealing with affirmative action and the like? (Yes, best to have brilliant reasoning with the "right" outcome, but that's not the hypothetical choice here).

Finally, Will writes this:

The argument is that it is somehow inappropriate for senators to ask a nominee — a nominee for a lifetime position making unappealable decisions of enormous social impact — searching questions about specific Supreme Court decisions and the principles of constitutional law that these decisions have propelled into America’s present and future.

And that's all very well, if we can be sure that this line of questioning can -- and be understood to -- differ from simply asking nominees what their views are on this or that case. Because once nominees can be asked about -- and voted up or down on -- their views on particular cases and their outcomes (including some that may come before them for review and reversal), then the nomination process has become inextricably and eternally intertwined with politics.


Blogger Mike's America said...

Carol: Thank you for being a voice of reason at Confirm Them.

Recently, I've thought that the site should change it's name to "Confirm Them if I agree with them 100%."

And whatever happened to "Give them an up or down vote???"

Today, I went back to look at the Douglas Ginsburg nomination (replacement for Bork) that was withdrawan after it was disclosed he had smoked pot.

The result was JUSTICE KENNEDY!!!

Anyone want to see history repeat itself?

I'm still chillin':

2:33 PM  
Blogger Draino said...

check out this blog: a complete essay on fundamentalism's hijacking of America. here is a brief excerpt:

The most dangerous form of Catholic and Protestant Fundamentalism the world has seen, since the Catholic Inquisition in the 1500s, now controls the Government of the United States. Its leaders are a military junta, which controls not only the White House, but every branch of the federal government. It has twisted the Republican political party into a secretive, anti-Constitutional, ruthless organization, which has electronically and strategically controlled the electoral system, producing criminal, secret, illegal elections in key states since the Presidential election in 2000. It is financed by corrupt, ruthless national and international corporations.

Sounds about right. Anyway, it certainly makes for entertaining reading.

6:40 PM  
Blogger Mr. Twister said...

I can't go as far as believing, as some do that it's perhaps better to have the "wrong" outcome with excellent reasoning than the "right" outcome even with some flawed reasoning.

Wow, Carol claims that the judicial branch should be more concerned with outcomes than with reasoning.

Harriet Miers must be more persuasive than I thought given that just nominating her made Carol change her legal philosophy almost 180 degrees.

6:57 PM  
Blogger Mike's America said...

Mr. Twister: Would restructuring the court to interpret rather than make law be a bad outcome or a good one?

And how about the Holy Grail of conservatism: overturning Roe v Wade and returning the power to decide the issue to the states?

Would that be a good outcome?

8:02 PM  
Blogger Mr. Twister said...

Hey Mike's America,

I was surprised to hear that Carol feels it is more important for judicial decisions to provide a "good outcome" as opposed to it being based on "excellent reasoning." Once you place a higher value on a "good outcome" than reasoned argument, you've completely politicized the judicial branch.

Should Roe v. Wade be overturned, what reasons to you have to believe that the decision will return to the states? Currently there is only one medical procedure that is regulatd by the federal government, and it is partial birth abortion. If abortion truly is a states' right issue why wasn't regulation of partial birth abortion left with the states?

10:06 PM  
Blogger Draino said...

If Roe vs. Wade is, in fact the "holy grail" of conservatives then overturning it would actually shut them up; an outcome I and many others would be thrilled about. Unfortunately, Roe vs Wade is better described as conservative "Fools' Gold" because overturning it would only start them on an obsessive quest to continue chipping away at individual rights and removing whatever safeguards protect our liberties and keep the government from virtually making all of our life decisions for us. I don't know about you but I could definitely do without that.

6:34 AM  

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