Penalty Declined on Miers Post

My friend Julie left a thoughtful comment on my last post, regarding Harriet Miers nomination to the Supreme Court, that I wanted to explore in more depth than a comment. She said, in part:

Whoa, whoa, whao - flag on the play!!! "I am certainly encouraged by the dicussion of her faith life as an evangelical Christian, and what that likely portends for her votes on the court." 'Scuse me, but that sounds an awful lot like what an "activist judge", to use a term that is usually blurted from the mouths of die-hard neo-Cons when faced with the idea of a Liberal justice, might do. Are we using the Constitution as our benchmark, or the Bible? If she uses anything but the Constitution then how can that not be "legislating from the bench".

This is one thing that irks the crap out of me from Conservatives - the idea that "activist judges" are only Liberals. If you put someone on the bench because you hope they will vote one way or another on any issue, then it doesn't matter if you are Conservative or Liberal - you are engaging in the very activity that the other side is frequently blamed for.

A flag on the play? Ouch. 15 yard penalty?

Hold on - after a review of the slow motion tape by the referee in the skybox, the penalty is declined.

I think that the root of our different perceptions lies in our thoughts on what "judicial activism" is. I have 4 quick thoughts on that:

1. Voting my way and activism are not the same thing, to me anyway.

Getting to choose someone who "shares your judicial philosophy", i.e. votes your way, is one of the perks of winning an election. It's the expectation. It's not activism.

2. Umpiring what's Constitutional or not - as conservatives prefer- is not activism. Treating the Constitution as a living document - as liberals prefer - is activism.

Activism usually aims to achieve social change. I would argue that where social change has happened in our society by legislation (Voting Rights Act) or Constitutional amendment (suffrage?) it has been accepted and normalizes out. But when social change happens by activist judicial fiat by less than 9 people (Roe v. Wade) it has been divisive.

3. Evangelical Christians are, in my opinion, less likely to pursue social change by judicial fiat than secularists. We have other outlets for that pursuit. Church. Charities. etc. Liberals, especially secularists, expect government to play this role and are more willing and likely to try to use the courts for these ends.

4. Religious fundamentalists, who are prone to interpreting scripture by the plain written word - as Miss Miers appears to be - are also less likely to be activists who "discover" new rights in an old document. The are more likely to read the plain text of the document and vote.

All of that explains me being "encouraged" by comments about her Evangelical faith.

However, I know think that her nomination will be withdrawn or defeated, so it may be all moot.