Tuesday, October 04, 2005

Activists Hunt for Paper Trail on Miers

The one thing that I will miss when the law faculty shifts over to the Bukit Timah campus is the free Asian Wall Street Journal that's available in the Business Faculty. For the lack of a better word, it's one of the few conservative papers that I can read that doesn't make me want to start raving. Hopefully, this practice will continue when we shift over to the new campus, but I don't quite see it happening. I do wonder who I should contact though

Anyway the one big consensus that I have seen thus far on the part of the media, 'liberal', 'conservative' and non-partisan thus far is that there seems to be more support for Ms. Miers from your social liberal activist groups than the conservative ones. If nothing else, this would make the senate confirmation a fascinating exercise between the various parties, interests groups and the executive citing executive privilege and refusing to release the papers that Ms Miers wrote as White House Counsel. On this last issue is something that I am sympathetic with because I feel that its prejudicial effect outweights the beneficial ones. After all the capacity to find out a person's opinion from such papers are highly limited because her job is essentially to support the administration's view.

Having said which, if you do manage to read a copy of today's ASJW, do check out their editorial on this issue. They are way more conservative than I ever gave them credit for. In it, they basically argued for judicial conservatism (a hilarious oxymoron in today's world which I will expound on later) and pushed Bush to release the papers and to nominate someone of strong ideological groundings in conservatism to fulfil his promise (notably to religious conservative groups, something the ASJW seems to have blithely ignored) and to demonstrate to the Demoncrats that Borking (filibustering) doesn't work anymore.

Right, let's work on them one by one and see if the editorial is even vaguely justified.

1. Judicial conservatism. There's a new book out on the Supreme Court and the political fight everytime there's a nomination. I've touched upon this at some length before so I don't want to get into it.

But what is worth noting I feel is that judical 'conservatism' today is really activism for religious conservatism today. Under the guise of following the literalist approach i.e. everything is set out in the Constitution, the court should not infer anything to it, they are effectively pushing a very particular and perculiar version of America and the founding fathers and in the process threatening
a) The right to privacy, which would allow them to ban people from being naked in their own homes *cough*, and of course ban abortion.

b) Separation of church and state. It's not just religion making headway into government but a particular form of Chrisitian fundamentalism at the expense of all other faiths and non-faiths,

c) The establishment clause. Saying that the judiciary is activist and making new laws is really a whole load of crock. Anglo-Saxon judiciaries have always been activist and acting as a bulwark against governmental oppresion, unlike the Civil Law model. And furthermore the Supreme Court has never made laws. All that it has done was to say that certain things like racial discrimination and an outright ban of abortion was unconstitutional. The legislature still has a TREMENDOUS amount of leeway to decide what is allowable and not. More to the point, a Bush style conservatism will see federal power expend at the expense of state power. Recall that a republican majority won't last forever and politics like karma will come back to bite you on your butt.

2. Fulfillment of promises and ideological grounds. That's linked to the above really and I think Bush would be doing a massive disservice to his country if he prefers one very narrow interest over a broader, more pluralistic one. Tolerance always offers more choice than intolerance and I'm willing to see a group offended than allow a group to be legally oppressed.

The bit about 'ideological groundings' is rather funny actually. They claim that people without strong ideological groundings tend to drift to the left once they get on the bench. To me, I read it as follows. Judges are rational people who think through what it is that they decide. Without strong ideological entrenchments, you approach a controvesy without having made your conclusion and trying to squeeze all the facts into that pre-conceived notion. Thus, with an open and rational mind, these highly intelligent and rational beings decide to go, what is the conclusion that one can make? Maybe liberalism is the more rational choice and more in line with the foundations of the Constituion perhaps? Gee...

3. On Borking. Well, it's true that the Democrats first came up with this particular technique but Republicans have made use of it as much as the Democrats (see Clinton's years and republican oppostion to his judicial appointments). I don't have the exact figures but the non-partisan group FactCheck.org has damned both sides equally.

Oh and one last thing. I don't think it makes for good logic to say that Bush has a great track record at appointing judges by saying that one of his own appointments is now the Chief Justice at 50. That's a classic post hoc, egro propter hoc fallacy.



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