Wednesday, October 19, 2005

Legal foundations

Stephen Bainbridge, on the Miers nomination:
Roe is a morally significant but jurisprudentially minor aspect of the broader problem that has preoccupied conservative legal thinkers for the last several decades. The really consequential questions go not to issues like the right to privacy, but to more fundamental institutional issues such as the respective roles of courts and legislatures. I've said it before, but it bears repeating, that Wickard v. Filburn matters a good deal more than Roe. Put another way, Roe is a symptom. In order to treat the underlying problem, a judge needs to know more than just whether she thinks abortion is good or bad. She needs a developed and thoroughly worked out constitutional philosophy. ... In short, even if Harriet Miers votes to overturn Roe, she could easily still turn out to be a disaster for conservatives if she fails consistently to adhere to the triad of originalism, textualism, and traditionalism that should properly constrain judicial decision making.
Bainbridge seems to be worried about Miers not seeing the forest for the trees, and I am beginning to fear it as well. Robert Bork weighs in on Miers and Bush here, giving voice to a lot of frustration with domestic policy. Both writings raise the issue of failing to sift an issue down to the nitty gritty and, as a result, winding up with something other than what was intended.

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