EVER SINCE the White House cut its losses, pulled Harriet Miers and nominated Judge Samuel Alito for the Supreme Court, embarrassed excuses have abounded. Some conservatives have suggested that Miers was a setup all along. As one National Review writer postulated, President Bush may have wanted Alito from the beginning, but in order to appease affirmative action activists, he had to first pretend to nominate a woman.
Conservatives need not explain away their embarrassment, however. The real embarrassment is the way liberals have revealed their true colors by their reactions to the nominees. Even when presented with a reliably conservative nominee in Miers, it was conservatives who objected most vehemently to her lack of experience and intellectual heft. In contrast, the only thing liberals have talked about since Alito's nomination is his positions on issues of policy like abortion. The liberal response evinces either a fundamental misunderstanding or a complete disregard for what the judiciary does in our government.
Chief Justice John Roberts famously compared judges to baseball umpires during his nomination hearing. To show why judges cannot be the policymakers liberals want them to be, Roberts' metaphor bears repeating. Imagine if umpires, instead of applying the rules, determined the outcome of games based on which team was more sympathetic or had a better turnout of fans on a given night. Rather than improve their game, teams would focus instead on winning over the umpires.
Similarly, if all that matters about judges is what policy outcomes they reach, there would be no point in having legislators, presidents, governors or mayors. Political activists could ignore the rules about how we make policy and instead persuade the judges that their position is to be preferred. While this may be a valid system of government, it is not ours.
Our government is premised on checks and balances and separation of powers. Legislators -- not judges -- make policies by passing laws. Executive officials enforce the laws. Judges interpret the laws. That is to say, they decide whether executive officials have correctly applied the laws, or whether legislators have overstepped the restraints that state and federal constitutions impose on them.
Thus, it was not enough for conservatives that Miers probably would have voted to overturn Roe v. Wade. Admittedly, some were concerned that she had made a few speeches about the importance of "self-determination" for women. But by and large, Miers was a soulmate for cultural conservatives: a born-again Christian and a member of a strongly pro-life Texas church. As President Bush's personal and official lawyer, she was also obviously prone to rubberstamping many White House policies.
Still, without a solid intellectual foundation, Miers' votes on the Court would have been a hollow victory -- expressions of her policy preferences rather than explanations of constitutional principles. And that is why liberals were quietly content with her nomination. Although they disagreed with her stances on policy, her inexperience with constitutional law suited them just fine. Since liberals view judges as mere proxy votes for their policy preferences, Miers' votes would, at worst, have proven to be her policies against theirs.
On the other hand, Alito poses a far greater threat. As an experienced judge who is grounded in constitutional arguments, Alito would not vote against liberals' policies per se. Rather, he would vote against their entire premise that it is the courts' role to make policy in the first place. He would reveal that the liberal view of judging has no clothes.
In practice, that means liberals could no longer evaluate Supreme Court nominees on the basis of whether they are pro-choice or pro-life. Rather, nominees must use generally accepted principles of legal reasoning to explain why the Constitution does or does not protect a right to an abortion.
This, in turn, would reopen Roe -- a decision that cemented liberals' preferred policy outcome, but which gave them no serious grounds to stand on other than "because the Supreme Court said so." Even Laurence Tribe, a prominent liberal constitutional scholar at Harvard, has skewered the decision was nothing more than a "verbal smokescreen." If Roe becomes a serious intellectual debate, liberals know they will lose.
If there is any silver lining in the nomination and withdrawal of Miers, it is that liberals are now on trial. They must explain why they are so much more opposed to Alito, who is no more pro-life than his predecessor, but who has the intellectual and legal grounds to justify his position. This time, it's the liberals' turn to be embarrassed.
Eric Wang's column usually appears Wednesdays in The Cavalier Daily. He can be reached at ewang@cavalierdaily.com.
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