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Chastening the court
National Review, Nov 7, 2005 by William F. Buckley, Jr.
LO, from moderate left field (I write of Nicholas Kristof of the New York Times op-ed page) comes a voice of concern over the Supreme Court's elevation, over the past 40 years, to moral tribune of America.
What brought this on, of course, was the frenzy of exploration when President Bush named Ms. Harriet Miers to the Supreme Court. It was almost immediately plain that he had not named Phyllis Schlafly to the Court. An immediate inspection of Ms. Miers's spoor reveals not very much about ideological inclinations--indeed, she confuses the whole picture by having once upon a time contributed money to a campaign of Al Gore's. Beyond a punctilious affirmation of a challenge to the broadest interpretation of Roe v. Wade in her early years, there was nothing to engender ideological fright.
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An interesting feature of her selection was the comment by Sen. Pat Leahy of Vermont, that it's not a bad idea to name to the Supreme Court every now and then candidates who have never sullied their fingers in the judiciary, as Harriet Miers has not. The reasoning here is that if you come in from, say, the court of appeals, you may be frozen in your views on certain judicial questions and prove less than amenable to reform. An interesting thought, though interesting mostly because it was Leahy who had the thought, and he is a prominent Democrat, probably influential in the weeks ahead when Ms. Miers is questioned.
More interesting was the featured closeness of Ms. Miers to the president. Unquestionably, before the grilling of her is done, the objection will be raised by somebody that her closeness to the president argues a filial relationship that undermines independent judgment. The point could be stressed that someone who has worked intimately with her/his patron for years and regards him as a fount of wisdom and right thinking would run the possibility of intellectual subjection.
Ms. Miers will need to shore up her thinking on how to handle the relevance of her closeness to Mr. Bush. If he had not brought the matter up in the first place, she could more easily have ignored such questions as irrelevant. The closeness of Miers to Bush can be dismissed as nothing more than time spent on his lap hearing him read out loud from the Federalist Papers.
But the question of the authority of the Court is truly interesting. Mr. Kristof writes: "The left went to the Supreme Court to achieve a range of victories it could never have managed through the political process: barring school prayer, protecting protesters who used fourletter words, guaranteeing lawyers for criminal defendants, and securing a right to privacy that protected contraception and abortion."
This, the writer confesses, has led to some unrest. Mr. Kristof reminds us that he is himself in total sympathy with the rulings of the Court on these questions, but that what the American public is beginning to fret over is the assumption of moral authority, arrived at after eristic constitutional thought by the Supreme Court. Some such rulings "alienated ordinary Americans who just could not see how the Constitution banned school prayers but protected obscenities. Frustration still seethes at liberals who try to impose their values on the heartland, and one consequence has been the rise of the religious right."
What we have is a nascent skepticism on the question of turning to the Court to legislate moral and social whims. The notion that a union between members of the same sex should be thought a "marriage" is historically and morally outrageous, but it is the courts that first came to terms with the idea, and (lately) pressed it as a constitutionally begotten right. If marriage is reconceptualized as binding man to man, the alteration of understood thought is on the order of declaring that all of Picasso's blues should be painted brown.
It could be that the nomination of Ms. Miers, the diffident but able attorney and advocate, will signal a hardening impatience with the role of the Supreme Court as dispenser of fine moral practices.
COPYRIGHT 2005 National Review, Inc.
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