Tuesday, October 04, 2005

Selective Strict Interpretation

I've been generally silent about the whole John Roberts and Harriet Miers thingee, mostly because thinking about it gives me a headache, and when things give me a headache, it means my blog entry on the subject ends up being a rambling mess that helps no one.

But I had to take a little bit of time to point out this wonderful irony.

From the NY Times, Bush Seeks to Quell Criticism of Court Nominee from the Right by David Stout (link will probably not work after like a day or so):

President Bush sought today to allay the fears of social conservatives about his latest Supreme Court choice, saying that his selection, Harriet E. Miers, would adhere strictly to the letter of the Constitution. . . .

"She's a woman of principle and deep conviction," Mr. Bush said of Ms. Miers, his White House counsel. "She shares my philosophy that judges should strictly interpret the laws and the Constitution of the United States and not legislate from the bench."

* * *

Mr. Bush also sent a clear signal that he would resist, on grounds of executive privilege, providing senators documents related to Ms. Miers's work in the White House. At least some Democrats are likely to seek such records, especially since Ms. Miers, who has never been a judge, has no "paper trail" of opinions.

"I just can't tell you how important it is for us to guard executive privilege in order for there to be crisp decision-making in the White House," Mr. Bush said.

The Constitution does not specifically mention executive privilege, but the Supreme Court has recognized the need for confidentiality between high government officials and their advisers. The court has concluded, however, that executive privilege is not absolute.

So, let me get this straight: she'll be a great jurist because she'll strictly interpret the Constitution. "Strict interpretation" generally means that if the Constitution doesn't say we have a right to it, we don't. Conservatives like to use this argument to attack Roe v. Wade, because the "right of privacy" upon which Roe is based isn't expressly stated in the Constitution.

BUT W. is perfectly happy withholding documents from Congress about the work she's done relying "executive privilege"? Note especially that this privilege is not enumerated in the Constitution, and therefore was apparently created out of -- say it with me -- judicial activism?

The conservative who invokes Court-created rights for their own purposes is much like the vegan who eats a roast beef sandwich "as long as it's already there." You can't do it. I know Democrats have also invoked executive privilege in the past, but at least Democrats accept that rights can arise out of the Constitution which aren't explicitly stated. It's not so much "judge-created" law as a reasonable interpretation of a living document.

You rise and fall by your own principles. You can't pick and choose which judge-created rights are acceptable and which ones are bad. If you don't like judge-created rights, I'd like it if you stood on your principles and refused to invoke them.


will said...

What an insightful analysis! In addition to laughing my ass off at W right now, I also have a craving for a roast beef sandwich.

duane said...

well said!