Wednesday, October 19, 2005

Miers redux -- more from the right

More on the debacle from the right: Professor Bainbridge, one of the more interesting conservatives out in the blogosphere, addresses Miers's "views" on abortion -- whatever they are, whatever they happen to be at the moment. I don't agree that a judge should always "adhere to the triad of originalism, textualism, and traditionalism that should properly constrain judicial decision making," but he's right that Miers "could easily still turn out to be a disaster for conservatives" even if she voted to overturn Roe. Not that I'd mind a "disaster for conservatives," but, as I've argued over and over again, there's no way she belongs on the Supreme Court whatever her views on abortion. Anyway, it's an intelligent post.

I wrote about Miers and abortion earlier today -- see

Ann Althouse: "The point should be that a judge who would rule from religious belief is not a proper judge. It's not a matter of whether we would like the outcomes or not. It's a matter of the illegitimacy of accepting the role of judge and then operating from religious tenets rather than the law. In fact, I would think a genuinely religious person would perceive it as a sin to assume power in such a fraudulent way." Another good post (though more from the center-right).

Bainbridge and Althouse are responding, in part, to
a prominent piece by Robert Bork in today's Wall Street Journal: "With a single stroke -- the nomination of Harriet Miers -- the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement. That's not a bad day's work -- for liberals." It's worth a read even if, like me, you can't stand him.

The Claremont Institute (a think-tank populated by Straussians far, far to the right of me), Ken Masugi offers a scathing critique of Bork's originalism: "
[I]t is based on nothing more than a faithful adherence to the constitutional intentions of the founders with no regard for the political philosophy which informed those intentions. Like the old 'public policy process' liberals, Bork is dedicated to the Constitution's means but indifferent, if not hostile, to its ends."

The Straussians at Claremont tend to be natural law cultists who follow Harry Jaffa's obsession with the Declaration of Independence. Their understanding of the "political philosophy" that informed the Founders differs from the understanding held by the Straussians who taught me -- and the understanding I myself have developed. I would thus question Masugi's emphasis on "the 'original' ringing affirmation of equality and liberty" that was the Declaration, but his critique of Bork is, in my view, right on the mark.

Bookmark and Share


Post a Comment

<< Home