- The Washington Times - Saturday, October 22, 2005

The conservative commentariat is blowing a gasket over the nomination of Bush aide Harriet Miers to the U.S. Supreme Court.

Columnist Charles Krauthammer termed her selection “scandalous.” Bill Kristol, editor of the Weekly Standard, called on the president to withdraw the nomination. George Will declared the selection shows President Bush “has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution.”

Well, maybe they are right. One can imagine lots of highly qualified nominees, including Michigan Supreme Court Justice Maura Corrigan, who reportedly was on the short list of finalists. And it’s clear Mr. Bush badly miscalculated reaction to his selection — and made matters worse with a follow-through that rivals the lack of postwar planning in Iraq.

But conservatives need to get a grip. I don’t recall George Will complaining our supposedly unsophisticated president made bad choices on his previous judicial selections, notably including the brilliant John Roberts, now chief justice.

And Miss Miers’ response yesterday to a list of written questions from the Judiciary Committee strongly suggests Republicans should withhold judgment for at least a few weeks, until she has had a chance to defend herself before the Senate Judiciary Committee.

My old friend and colleague Dan Henninger of the Wall Street Journal wrote that the nomination of somebody as supposedly unpracticed in constitutional law as Miss Miers will cheat the country of a good debate. But the contrary could be true. The hearings will be a chance not only for the usual hammering from the left. There could be an unusually vivid debate.

That assumes, of course, Miss Miers is up to the task and the senators stop speechifying long enough to ask some penetrating questions. They will be tempted to play “gotcha” on the fine points of obscure constitutional issues. But she may already have answered the most important and potentially contentious question: her philosophy of judging itself.

Liberal doctrine holds the Constitution to be a living, breathing document — whose meaning can be adapted to modern, supposedly enlightened conceptions of the public good. Principled conservatives, by contrast, believe the judge’s role is to apply the law and the Constitution, not make new laws.

Or, as Miss Miers said in her written answers to the Judiciary Committee yesterday, “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.” If new law is needed, she suggested, it’s the job of the peoples’ elected representatives to create it. If the Constitution is deficient, there is a mechanism for the people themselves to amend it.

Well, liberals complain, political gridlock makes it difficult to get things done in Washington; hence courts sometimes need to step in and get things on track. Besides, conservatives also engage judicial activism when they overturn liberal precedent.

But, noted Miss Miers, blind observance of precedence would have meant no Brown v. Board of Education, which overturned Jim Crow laws. And the Framers deliberately built gridlock into our political framework. They saw it as key to limiting the powers of government and thus protecting the individual from the tendency of government to grow ever more intrusive.

The senators will no doubt want to test these ideas. Fair enough. Some senators will be unhappy if they can’t get a direct sense of how Miss Miers might rule in specific situations.

But with her answers on judicial activism and precedent, Harriet Miers is off to a good start — a start that should encourage conservatives to give her an honest hearing.

Tom Bray is a Detroit News columnist.



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