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October 18, 2005

Interesting themes in Miers' first answers to Judiciary Committee

Thanks to How Appealing and the National Review Online, everyone can read for themselves Harriet Miers' response to the Senate Judiciary Committee's written questionnaire at this link.  Though there are notable nuggets of information throughout the document, her answer to the very last question on judicial activism (starting on p. 55) provides nearly all the money quotes.  Consider, for example, these statements from Miers about stability, stare decisis and judicial independence:

As I entered private practice, I grew to appreciate even more the importance of predictability and stability in the law, and came to believe that those values are best served by a rigorous and focused approach to the law....

"Judicial activism" can occur when a judge ignores the principles of precedent and stare decisis. Humility and self-restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it. Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary.  There are clear examples, like Brown v. Board of Education, where revisiting precedent is not only right, it is prudent.  Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. Thus, whether the prior decision is wrong is only the beginning of the inquiry.  The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling....

The example of Judge Estes helped to instill in me an appreciation for the importance of judicial independence that has only grown stronger over time. Criticism of courts that overstep their role is justified.  We must zealously guard, however, the independence of the courts.  While legitimate criticism of judicial activism is healthy, even essential, we must be wary of unduly criticizing judges merely because we disagree with the result in a particular case. Judges are given life tenure and independence to shield them from the potential tyranny of the majority. While life tenure and independence should not be a license to usurp the rule of law in favor of a rule of man, they provide an essential structural protection to ensure that judges are able to make decisions based only on the fundamental vision of the Founders — the rule of law.

Of course, while everyone else is going to parse these comments through the lens of Roe, I like thinking about what they might mean for Almendarez-Torres and Harris and Blakely and Booker and death penalty jurisprudence.

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October 18, 2005 at 11:28 AM | Permalink

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» Blog Round-Up - Wednesday, October 19th from SCOTUSblog
On the Miers nomination: Election Law Blog directs us to Miers' trial testimony from the Dallas voting rights litigation. The Volokh Conspiracy has this bit of trivia on President Bush's plan for appointing judges. Sentencing Law & Policy has this... [Read More]

Tracked on Oct 19, 2005 1:14:39 PM

» Blog Round-Up - Wednesday, October 19th from SCOTUSblog
On the Miers nomination: Election Law Blog directs us to Miers' trial testimony from the Dallas voting rights litigation. The Volokh Conspiracy has this bit of trivia on President Bush's plan for appointing judges. Sentencing Law & Policy has this... [Read More]

Tracked on Oct 19, 2005 1:16:39 PM

Comments

It sounds an awful lot like what Roberts said in his hearings.

Posted by: Jeremy Pierce | Oct 19, 2005 7:49:40 PM

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