Tuesday, October 25, 2005

So What About Harriet Miers?

I've been avoiding the subject of Ms. Miers in an effort to define terms--and I won't devote much to her just yet. Hearings don't begin for another two weeks. I will say, things might have been done differently. Most of what we know about her is that she is something of an unknown. That is unfortunate, when there are so many solid people with both outstanding resumes, demonstrated scholarship, and a known commitment to a traditional judicial philosophy.

My hunch has been that the president was ducking a fight when he chose Miers. She was a known supporter of Dukakis and at one time supposedly gave money to pro-choice causes. (Or this may all be rumor. My sources are not good.) Now I hear people assuming she experienced a radical conversion to Christianity and changed her view on abortion and other things. I don't know what the truth is. And I don't get a vote in this anyway--since she's not a politician.

But I don't understand why Bush didn't pick a solid candidate that his supporters could rally around. The GOP has the majority, yet we seem to be trying to placate the ravenous dogs by throwing them a Dukakis supporter. Then James Dobson gets on the air and implies Miers is just who we want on the bench. But what does that mean? That she's pro-life, no doubt. But I'm sorry, but I'm just not interested in getting that single vote on a single issue--even if it is the biggest issue of the last fifty years. We should take the long view and appoint someone who is schooled in conservative scholarship on dozens and dozens of issues. We need excellence and a demonstrated judicial acumen. I'm not saying Miers lacks either--only that I have no idea. It's the president's choice, and Bush has always been good at reading people. Maybe she's the best choice. I hope so.


Blogger e said...

...not claiming...at all...to know much about the law...so i'm being schooled as i read your blog... so help me if you will...i have a question...i agree that choosing someone for one idea when the rest of what they stand for is crap... is a bad idea... and you made it very clear that you don't know this woman's "political" career (just teasing and agreeing with you on the previous..."these people have totally forgotten what their jobs are"...posts)... so who would you choose...if not miers...then who...do you believe that there are some justices who remember the foundation of our government? because i'm not so sure that i believe they ever existed...democracy has seemed like a good theory...that hasn't worked out for the majority...ever. what do you think?

9:06 PM  
Blogger Steven Wales said...

You know, I sent this blog address to a nice crowd of people and get few comments. It's either too boring to read or the topic is so foreign no one dares to write. I hope it's the latter. But the topic matters, even if, as one writer put it, the "abstinence [judicial philosophy] counsels is unsatisfying [a/k/a boring]."

But your comment is complicated enough to keep me busy....

First, kudos for your curiosity and for reading. If you master this at all, you'll know more than most lawyers on this narrow and largely-ignored subject.

"Who would you choose?" is a good question. First, I'm hardly in a position to know. But there certainly are justices who "remember the foundation of our government." Rehnquist was an excellent example. His dissents in cases involving public displays of religion, whether posting the ten commandments at schools, or a nativity scene at a county courthouse, show an amazing grasp of our nation's founding documents. Nice writing too.

The best of these justices may be Antonin Scalia, who has similarly written some excellent opinions, though again, usually his were the dissents. (Which is why this appointment matters.)

Janice Rogers Brown is a good choice. Many of the candidates that were going to be filibustered (for lower court appointments) would also have been good. Sorry I can't give you names without research.

Janice Rogers Brown wrote a paper I just read that was amazing. It's as if she's reading these cases on an entirely different level of scholarship. Where most of us are reading to understand what the law says, she's looking at the philosophical Marxist or Judeo-Christian underpinnings. This is so unusual, I was left wondering where she learned it, if she took some graduate course I never heard of or what. You can see the short speech at the following:

Finally, I don't think democracy has ever worked out for the majority--in a sense. The majority will always struggle with their individual and corporate failures, with corruption, with laziness, with sloth and the poverty that follows, with crime and ignorance, prejudice, hatred, class warfare, and a thousand other evils.

But I think democracy is still the best response to these problems, specifically because it was created with such things in mind. That is, democracy, unlike many other theories, assumes that people are concerned primarily with themselves and will be bad when the cost-benefit analysis says it's worth the risk.

John Locke used a term I like: enlightened self-interest.

With that in mind, it seems to me that democracy has been much better for the world than anything else. Believe it or not, Janice Rogers Brown's speech actually addresses some of this.

Thanks for the great comments!

10:58 PM  
Blogger e said...

i totally agree that democracy is the best way to go...the whole point being...by the people...for the people...but...i don't think it will work...unless it works for all...right?...so it seems to me that when our founding fathers decided to convene for the first time "enlightened self-interest" was a good thing...unless you were anything other than a white property owner (i.e. black, woman, indian...and later...filipino, cuban, guatemalan...etc.) ... so doesn't it seem that until freedom is freedom for everyone...it isn't freedom for anyone... and as long as people in places of power (i.e. justices) look at THE people with the same prejudice filters that our founding fathers did (who didn't consider most other humans...well...human).. then the freedom our democracy offers will not be real freedom...even for us (by us i mean you and me...who i've assumed are both middle-class white americans)... because it is not freedom for all... it still seems to ring of "assimilate and be free"...instead of..."all men created equal" which is the most beautiful statement...but the problem seems to be that no one believes it...(there was no side note to all men created equal stating that even though we may be equal...we may not have the same ideas about government...and if we truly believe in freedom... shouldn't all men have the right to govern themselves in a way that seems fit for them?) i thought that was the whole point of representation... i thought that in this democracy...citizens played a important role in governing themselves...electing people who would vote on their behalf...understanding the needs of the people...in a previous post you said, "We understand elected representatives. We vote for them—they make rules for us." ... if this is true...then i don't understand representation at all... i thought that being uniquly democratic allowed us to vote for people that would serve under these four ideas..which are the very characteristics of american democracy...1. popular sovereignty 2. majority rules/minority rights 3. political equality 4. liberty... i'm really confused... i want so badly for democracy to work... i want what the founding fathers wanted ... i just want it for everyone... so...my question is today: i know that you understand the role of the judge...who has a constitutional constituency...but what about the legislature...who has a state constituency? it seems that they, too, have forgotten who they work for...and i'm pretty sure...it's you and me...shed some light on this for me please...(becoming a bigger nerd every comment)

9:44 AM  
Blogger dennis said...

e, in my understanding of the judicial branch/process (and I know Steven will happily correct me if I err) the Court is charged to read the Constitution and interpret the cases presented in the Light of that same document. The beauty of the Document is that it does not contain phrases of distiction such as: "all men (but not women, slaves, asians, I-talians, or et-ceteras- cuz we don't like them folk)..." You get the idea.

Another note- true freedom ought not be confused with absolute freedom (freedom to govern themselves in a way that seems fit for them) because the freedom expressed in the latter case really amounts to anarchy if it is implemented in a society wherein different groups decide to govern themselves differently, at times perhaps in opposition to other groups (as is the natural tendency of man to congregate in groups of the like-minded). The former case, so-called true freedom is only found when it is expressed as freedoms gained within the bounds of some common restaints, that which we often refer to as the Law.

The Judeo-Christian society implements laws in order to attain a level of freedom that is only found in theory, but is an image of the eternal as presented in both the Talmud and the Bible. The Bible (of which I am more familiar) clearly states that freedom is found as a result of the Law, which aids us in understanding the nature of man and his (or hers- I'm not meaning to say that only men are this way) predilection towards self-serving behaviors. Even as a Christian one must submit to authority in order to truly understand the freedom one has in Christ.

and then there's my opinion on how free we are now...

I really think that we are more free as a society now, whether white, black, asian, pacific islander, man, woman, boy, girl, irish-american, greco-roman, whatever, than any society that has ever been. Not that we are a Utopia by any stretch. But no matter who you are or where you are from, you can make it in our society if you take it upon yourself to do it, and don't expect anyone to give it to you. those who expect the most to be handed out to them, complain the most of their lack of freedom, while those who work the hardest often are the most thankful for it. Just ask you local migrant (undocumented) worker how important freedom is here. Or ask an Iraqi who voted last week for the first time. Ever. And knows that it counted.

Our nation is hardly the ideal, but it sure is better than what it could have been. And for that, thank the writers of the Constitution, and the Courts that have upheld it.

2:12 PM  
Blogger Steven Wales said...

Well, Pandora, you opened up a box this time. Just kidding. But I'm not up to the task just now. I saw most of the 14-inning game, then tried to catch a 7 a.m. flight.... So very tired.

I have a friend named Jay C. at work. We talked a bit today. Jay--if you're reading this--jump in here any time.

Rather than attempt to carefully address all issues, let's try the whole global, holistic thing.

Here's a story from the news. The NBA, whose worst players are paid over six figures and whose best earn millions, just instituted a dress code for injured players. While at their place of work but out of uniform, they have to wear a coat and tie (or that's how Reggie Miller told it on Letterman). Is that too much to ask? Is it racist to ask them to stop showing up dressed like gangsta' thugs or rap singers? I don't think so. Reggie Miller (a black NBA hero) says this has gotten way out of proportion. He noted that Magic Johnson and all the stars Reggie grew up watching traveled in very nice clothes and came to games in suits. He said that was a reasonable request from any employer. I agree.

But from the outcry, you'd think we were talking about opening up fire hoses in Selma, Alabama.

Remember how much money these guys make? And how many months of the year they can blow? Who else has more free time and more disposable income, surely two signs of a tremendous freedom, one never before seen on Earth?

By contrast, consider North Korea, where defectors have testified that the number of people in prison at any time (250,000) is carefully regulated so that prison factories never have a shortage of workers. If people die from the 20 hours of work (without once getting off the chair), from frostbite, from constant beatings, from working sometimes 20 hours a day, seven days a week, from eating only one spoon of rice a day, from paralysis brought on by sitting in a 3' x 3' box for seven days straight--one with razor sharp thorns on the side so no one can lean over--from the horrible diseases that burn through the prison like a wildfire, if the prison population drops for any reason, then more people are arrested on trumped-up charges. Other prisoners drag the bodies out and bury them in the orchard, where guards say the fruit will then be especially good.

This is the way North Korea treats North Koreans. For foreigners it's even worse. And for Christians, it's worse still. They endure constant torture so they will deny their 'superstitions' and deny 'Heaven' (the word 'God' being illegal even for guards to speak).

When one guard grew tired of ten Christians that he could not force to recant, he had them killed. The group worked in a factory--so he had other prisoners bring over a ladle filled with molten steel (at 1,200 degrees). The steel was poured on each kneeling believer, and of course, burned right through their bony, malnourished bodies, shriveling the carcasses into tiny burnt husks, black and twisted like curled bacon.

Similar tragedies go on every day in places like Sudan, Saudi Arabia (yes, even our great 'ally'), Pakistan, Burma, and many other places.

I bring these up only as a contrast. I think we forget what real persecution, terror, and torture is. In the U.S., we see so little prejudice that is truly egregious, that we focus all our attention on things that are really quite trivial. I know suffering is suffering. But when a rapper says he turned to a life of crime because growing up he watched the Cosby show and it made him want what rich people have, then I just think the guy is watching the wrong thing. If people here knew a little more about how the rest of the world really lives, they might appreciate the incredible freedoms this land offers.

The land of the free may not always have been as great as it is now. But it has always been the land of the more-free. Or the land of the free-est.

About slavery, I believe the founders were against it--many set their own free in their wills--but the problem was a huge cancer that they could not adequately address in 1776. So they punted and left it for another generation. Considering the odds against them in the early years (see War of 1812), they probably had little choice.

By the way, all the stuff about North Korea comes from a book I'm reading: "Eyes of the Tailless Animals: Confessions of a North Korean Woman," by Soon Ok Lee.

Thanks again for the great comments.

1:07 AM  
Blogger e said...

sad about the game, eh...i'm not even a baseball fan...and i felt so bad for those guys...they have worked so dang hard...and i'm still totally proud of them...what an amazing thing...i hope no one forgets how amazing what they accomplished is...i won't...
*sorry you're so tired...

ok. on to the topic...let me say...(before i'm assumed a bleeding-heart liberal)... that i love this country...i believe it the best for me to live in...i think it best suits the kind of life i want to live... and i certainly wouldn't want to be a woman in iraq...or anywhere else for that matter...i'm 100% american...to the bone...and i can honestly say america is the most wonderful place on earth (to me)...i'm sure many others wave their flags and love their countries, too...i think what has happened here...is what happens everytime the issue of what might actually be wrong with our great land comes up...we get defensive...let us just say that we all agree upon this issue...we love america...and of all the places in the world we could live...we choose here (although personally i lived in the czech republic for a while and it was a close 2nd)...but still... i came home...and i love home... so...for the sake of chasing rabbits...we agree (and i'm mostly sure we do)...so..minus all the horrid...unthinkable things that happen elsewhere... can we look at the question that i ask? ... or ... maybe i should be more clear about what my question is... since the judicial branch has a constitutional constituency ... (my understanding of that from your previous post is that a supreme court judge must hold back his/her personal ideals and make judgements that are sound and based in that document alone)... with the understanding that many things have changed in the united states since the writing of this document...then that drastically changes things...the document is subject to change as we govern ourselves and become more and more aware of social injustice amendments are made... but i must say...that it seems to me... it takes a whole lotta wrong to get us to the point of amending the constitution (i.e. ERA) ... and still some things that should happen...never do...and we get into convos about how horrible it is in other places so as to distract ourselves from problems at home... i experience our country somewhat like a person... if you have someone and they have a lot of baggage...you don't tell them to ignore it...to find peace in the fact that it could be worse..."you could be him...or her" (or north korea)...no...of course you don't... your heart is to help that person see...to unload the baggage...to reconcile...to tell the truth...not make excuses for past behavior...but to recognize that they don't know everything...and that there might...there just might be some things in that person's past that is making them see through filters in the present (i.e. supreme court... constitution...federalist papers...etc.)...tainted filters that won't let them get to the root...so instead...that person points and says..."well...i am better off than that guy"...that's not the kind of person i want to be...and it's not the kind of america i want to live in...why is it so hard for us to say..."my bad"..."that was not a good idea"...and "we're sorry"...i think we suffer...as a country.. from pride...and it's there...or so it seems to me...to cover up the shame of our past (and i don't think all of our past is ugly...we are beautiful, too...but beautiful is never the issue)...and no one wants to talk about that...because if you do...you are deemed unamerican...and called a liberal...i'm neither...the whole idea behind civil society is the idea of the public person allowed to speak freely and openly about our government...and without retribution from the government...to critique what is happening...so back to my person idea...telling someone (i.e. america) that it needs to deal with it's past so that it can be healthy in the future is all i'm saying needs to happen... forgiveness is important...it is important to God...and it is neccessary...i see that the bible says many times that the people need to (as a nation) pray and seek his face and he will heal the land...more than american...i follow jesus...that is where my true citizenship belongs... heaven ...and it makes me want to understand what goes on in our government all the more...because God has placed in power (and always has) exactly who he wants...at all times...Jesus is the head... so what does he want for america (who he loves as much as he loves north korea and africa and germany) .. to seek first his kingdom... i love individualism... and it is wonderful to be wonderful and unique..but...christ created a body...and often america promotes the very things that christ clearly says will kill us (where america promotes individualism...christ promotes the body...america: isolation, christ: community...america: do it yourself...take care of your own mentality...christ: live generously...care for the poor...the orphan...the widow...the disenfranchised)..God was in charge long before america came along and i think we are crazy when we forget that and look to a document to find our identity...i care what it says...i honor it and respect it (the constitution)...but not more than what christ says...so if the filters of our past remain tainted and unreconciled... regardless of what the document actually says....then we'll be spinning our wheels trying to read a document with crazy goggles on..won't we? our sight HAS changed since the founding fathers...but should that keep us from further change...ok..so jump (again)...this is why i think our checks and balances are so important...and why i ask about the legislative branch and their state constituency...do they not have to follow the will of the people anymore...have we forgotten somehow that the elected representative is to represent the majority of people and to protect the minority?...it would be nice...if the government were closer to the people...and it would be nice if the people cared enough about others to consider what they want in light of what is good for all...not just those in power...the power doesn't seem to be with the people...because i think people care...i do.

dennis...i think the idea of pulling yourself up by your boot straps is a dangerous one...if you are among the elite in america...you are taught that you are there because you somehow (within your own power) deserve it...you worked hard...and this is the result...and those in poverty believe the same thing about themselves...that they are in there circumstances because they haven't worked hard enough (when americans who began believing this worked 7 days a week 20 hour days...in factories...less than favorable conditions...and still believed this lie)...i believe that this thinking is an american myth...what we have is given to us by God...all of us...and all of it (what we receive)...whether we recognize this as true or not (we have responsiblity ... don't hear me say that we should sit back and let life happen to us) i'm merely suggesting that we often see ourselves as americans...before we see ourselves as christ followers and he doesn't seem (to me anyway) to work by the bootstrap mentality...live generously he says...care for people...ask your father for help..he loves you so much...our idea of success is so screw ball...and i have to fight everyday to not get sucked into the whole...what you do is who you are...the american way...the more successful you are the more you're worth...i choose to find my worth in christ...so being elite or being in poverty is not a deserved end...look at paul...content in all circumstances...because his success was not about this world...a dreamy...american way attitude... work harder and get more is not what i think (with my limited understanding)christ teaches..i would like us...as christians...and as americans... to care for our nation the way we would care for our families...and ourselves... christ says that you are blessed...when you fall down... your brother is there to pick you up...i would like to be a part of a nation that claims to be christian and actually spills the love of God...and values other nations as being gifts from god as well...a nation that forgives debts...and is humble...who ask for God's help not so it's own agenda can be accomplished...but so that God's idea of earth will be accomplished...so people will know him..and love him....how beautiful to look at africa and see it for what God has designed it...or germany...help them heal from the shame of their past...they have something to offer the world out of who they are as a nation as much as we do...i want to see people and nations the way god does...covered with sacrificial blood... beautiful...and designed to give God glory the way he created them to...

10:27 AM  
Blogger dennis said...

ah, but I didn't mean to say that one must pull himself up by his own bootstraps alone, as if we are not in this together. Rather I meant to point out that one should not sit back and wait upon the government to implement some program that entitles him to more benefits in lieu of actually doing something to help himself and receiving help and assistance along the way. Ben Franklin (and not the Bible) said that God helps those who help themselves. Well, I don't believe that is exactly true, but in our society it does help if a person is trying to make some progress. Of course the poor will always be with us, and even though the poor in America are better off generally than the poor in Honduras or Angola or Burma, that doesn't mean that they can be ignored. I didn't mean to imply that. Only that in our country it seems that even the poorest person has certain opportunities afforded him that give him a chance to be most anything he reasonably wants to be. Contrast that with examples from any of the other nations above and one finds that those do not always have that. Healthcare for example is not universal here, but relatively accessable here compared to those other countries. That is one of the differences between First and Third-world countries. Of course there is a responsibility to provide some of the basic things, but not all notions can do that. Ours can, and generally tries to do so, though it is not always successful- just look at the literacy rates in certain states- the rankings seldom change very much. Yet the opportunity is there.

Now I must say that I am in agreement with you on certain levels- especially the true nature of our citizenship in Heaven. I do want you to know that I think about my place and position often, and I am deeply grateful to God for where he has placed me. I could have been a person in Rwanda who was never to leave the village until the day the Hutu's came and destroyed it, along with me and my family. Or worse, I could have been born into another white, suburban, middle-class southwest Houston home that just never made much mention of God in the home, leaving me with bitterness at God if I believed in His existance at all. yes, I know that He has blessed me with all that I have and am. Though I am considered upper-middle by class standards, I hope that I never treat any of my patients as though there is any distinction, whether they are CEOs of corporations or homeless and dirty from living on the streets. Let's just hope that we will have representation that truly does represent us and our wishes, and a judiciary that will protect us from representation that goes against the framework of our State.

2:02 PM  
Blogger Steven Wales said...

Please pardon me if I can't be too specific. But generally, I too think the Bible certainly trumps the Constitution. (In a sense, the Bible really is a 'living' document...) And my citizenship in Heaven is so much more important than my citizenship on Earth. (Best book on that may be HEAVEN: YOUR REAL HOME, by Joni Eareckson. The title says it all.)

But as a citizen of Heaven, I want to store up treasure there (not selfishly--it's the command on my life). And I can only do that here.

While here, I want to make this world the best place it can be. I want to make a contribution. And when you boil that all down, one little way that calling affects me involves some of these legal/political issues.

Most of my close friends and family are Republicans, but not all. In the summer of 2000, a group of us got into a heated exchange about politics. I tried to be a peacemaker, asserting the truth that what matters most is our united faith in Christ and we should seek to elect officials not necessarily who are Christians or talk a good talk, but who we believe will support laws and policies that most closely follow the teachings of the Bible.

To bring all that back around to the Constitution, I believe ours is best specifically because it assumes total depravity, the "T" of Calvinism's TULIP. Anything less is bound to fail in many ways. Yet so much of the world assumes men are good, or the men in power are pure and uncorruptible, or Shiite Muslims are good, or Kim Jong Il is a god, or whatever. Western nations have documents that may also assume and prepare for the worst in human nature, but so many now are full of people who believe every tenet of humanism, therefore creating bad law even in places that were once "Christian nations."

As for your concerns about America the somewhat beautiful, sure, we must do all we can for the poor, the underprivileged, and etc. And I think the best way to do that is to remember that people (even the poor and downtrodden) are prone to evil and selfishness. And that is the reason for the incredibly well-designed checks and balances system, for Washington's unwillingness to serve a third term, and for so many other things. Power corrupts, so no one gets too much.

What this has to do with the US Supreme Court is that the Court has been taking too much power to itself, taking on a legislative role. And that presents a real separation of powers porblem. But a Justice who is committed to the kind of Judging the founders intended, won't cross that line. And if the Court can maintain it's proper role, some of the corruption (not to mention very bad law) can be put off.

4:11 PM  

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