Ron Demarest – 10/16/05

This page was last updated on October 16, 2005.

Why Miers frightens the right; Ron Demarest; Beaver County Times; October 16, 2005.

Out of the entire letter, only the final paragraph has anything to do with Harriet Miers.

This letter is an example of a writer overreaching. Mr. Demarest could easily have written a credible letter on this topic, but his partisanship forced him make idiotic assertions.

Below is a detailed critique of the subject letter.

“It is amusing to watch the same right-wing Justice Sunday crowd and their Federalist Society ‘originalist’ companions, who told us that the Senate had no right to demand specific answers from a Supreme Court nominee, wringing their hands and demanding to know if Harriet Miers really is what they previously claimed they didn’t want - an activist judge who will promote their right-wing agenda from the bench.”

[RWC] You’ll notice that nowhere in this letter does Mr. Demarest identify the “right-wing agenda.” It’s also clear Mr. Demarest doesn’t understand the right’s view of courts. I can’t speak for everyone, but I only want courts to interpret laws – including the Constitution – as they are written without creative interpretation. Judges must not add what isn’t there or ignore what is. Paraphrasing Justice John Roberts during his confirmation hearings, if the law says the big guy should win, then judges must rule in favor of the big guy.

If the results of a law or provision of the Constitution are “undesirable,” it’s up to Congress to correct, not a court. That’s why the Constitution has an amendment process and why we elect representatives. It’s not for unelected lawyers to make/remake our laws. There’s a reason the legislative and judicial branches are separate entities. Conservatives and libertarians tend to understand this process; liberals tend not to – or don’t want to – understand this process.

“Originalism (or strict construction) is in the eye of the beholder. Justice [sic] Black and Douglas called themselves strict constructionists but their views were polar opposite to those of Robert Bork and Justice Scalia, icons of the right-wing judicial movement.”

[RWC] I’m not an expert on the rulings of justices through time, but you’ll see below Mr. Demarest presents no valid evidence to support his assertion.

“The First Amendment states ‘Congress shall make no law ... abridging the freedom of speech or of the press.’ For Black and Douglas, ‘no law’ strictly construed means no law whether the issue was censorship or Nixon’s attempt to stop publication of the Pentagon Papers.”

[RWC] No law means no law? Want to bet? Does Mr. Demarest want us to believe Justices Black and Douglas would have ruled it’s OK to yell “fire” in a theater and it’s OK to libel or slander a person?

Mr. Demarest is even wrong about the Pentagon Papers. The SC didn’t rule the press could publish anything it wanted. The SC ruled the government didn’t make its case to stop publication on the basis of national security concerns. If the case had been made, the papers would not have been published, at least not legally.

On a side point, the Pentagon Papers were damaging to the Johnson administration, not President Nixon.

“For Bork and Scalia, ‘no law’ actually means some laws, regarding what they think should be suppressed. They also say that the right to privacy exists nowhere in the Constitution.”

[RWC] As I showed above, “‘no law’ actually means some laws” for all justices. Regardless, Mr. Demarest provided no examples supporting his assertion that Judges Bork and Scalia would rule against freedom of speech.

Can Mr. Demarest show us where the Constitution guarantees a right to privacy? Don’t get me wrong; within limits I believe it makes sense to have a right to some privacy. That said, it’s nowhere in the Constitution. The only way to make sure there is some right to privacy is for Congress and the states to amend the Constitution. Otherwise, the alleged “right” will always be at risk depending on the personal policy preferences of the members of the court.

“In his book ‘The Tempting of America,’ Bork tells us that the court was wrong in 1942 to hold that the forcible sterilization of repeat offenders was unconstitutional. Recently, he said the Social Security Act was unconstitutional, though it was too late to do anything about it.”

[RWC] Assuming Mr. Demarest is correctly representing these positions, what’s wrong with them? I’m not a lawyer, but my copy of the Constitution doesn’t mention “forcible sterilization of repeat offenders” or Socialist Security.

Regarding “forcible sterilization of repeat offenders,” I agree with Judge Bork. I might not agree with the practice, but I see nothing in the Constitution prohibiting Congress or the states from employing it.

Regarding Socialist Security, I don’t know if it’s unconstitutional, but it’s clearly at least extra-constitutional. Remember, the federal income tax was ruled unconstitutional in 1895 (Pollock v. Farmers’ Loan & Trust Co.) and that’s why Congress and the states eventually ratified the 16^th Amendment in 1913.

“Scalia and Bork believe that the Bill of Rights is time frozen in 1791, e.g. nothing not considered cruel and unusual then (cropping of ears, hanging of 10-year-olds) can be held cruel and unusual now.”

[RWC] What a load of crap! Mr. Demarest wants us to believe Judges Bork and Scalia would rule in favor of ear cropping and hanging 10-year-old children. This is another example of what I meant above when I wrote Mr. Demarest overreached.

“Miers’ problem on the right is that she doesn’t have a culture warrior’s pedigree. They can’t be 100 percent sure how she will vote. Unless they’re prepared to open up the inquiry at the hearings, they’re stuck with her.”

[RWC] No one can be 100% sure how any nominee will vote. That’s not the point and Mr. Demarest knows it.

Again, I can’t speak for everyone, but my “problem” with Miers is twofold. First, I know little about her. Whether you’re a liberal or conservative, you have to be familiar with someone’s qualifications and judicial philosophy before you can support them. To do otherwise would be irresponsible. Second, I believe President Bush could have nominated a qualified person with a well-known judicial philosophy, though no one can predict with certainty how any nominee will rule, especially, 5, 10, or 20 years from now. Though I no longer have any question about John Roberts’ qualifications, I still don’t know how he will translate the judicial philosophy he advocated during the hearings in the real world.