ConfirmThem

By AndrewHyman Posted in Analysis and Predictions — Comments () / Email this page » / Leave a comment »

What is motivating conservative opposition to the Miers nomination? Laura Ingraham is conducting a poll. As of now, about 2% are saying "sexism," which suggests other factors are primarily driving the opposition. For what it's worth, as someone who is firmly planted high up on the fence, I haven't seen any sexism or elitism on the part of my fellow confirmthem bloggers who are urging withdrawal of the nomination.

I think the main concern of all us bloggers is that we want a nominee who will be just and fair when the law allows it, but who will be mean and unjust when the law requires it. Judges are not above the law. That's what is mainly driving this controversy, together with great uncertainty about where the nominee stands on matters of interpretation. We do not want someone who is so pragmatic that he or she will throw the law aside in order to do what he or she subjectively believes to be "the right thing." Such a judicial elitist would not be qualified to sit on the Supreme Court.

As Jefferson explained in 1785, a court of equity normally “cannot interpose in any case against the express letter and intention of the legislature. If the legislature means to enact an injustice, however palpable, the court of Chancery is not the body with whom a correcting power is lodged.�

How much we personally admire a nominee, or how much we sympathize with the struggles that he or she has gone through, is kind of beside the point. The question is whether the nominee will do a good job, and will correctly understand the judicial role.