Deferential Calculus

Dahlia Lithwick editorialized in NYT Of all the mysteries surrounding President Bush's nomination of Harriet Miers to the Supreme Court, possibly the biggest is this: How could a man who got it so right with John Roberts get it so wrong with Ms. Miers?

Maybe he got it right both times.

If the lesson of the Roberts confirmation was to pick someone superbly qualified and watch him whiz through his confirmation, why did President Bush almost deliberately flout that wisdom by nominating an inexperienced crony?

Because the weak willed Republicans in the Senate were not willing to fight for someone the Conservatives would have approved of, so he had to have a stealh candidate, and he did not want to make the mistake his father had, and submitting a stealth candidate that others told him was conservative. He submitted someone he knew for a very long time.

But Chief Justice Roberts and Ms. Miers may have more in common than you think. Both their nominations reflect a deep concern about a too-powerful court and the president's troubling new hostility toward the institution.

I don't agree he is hostile toward the institution, he just wants the USSC to fill the role the Constitution expected it to fill: judge but not legislate.

Consider this: Chief Justice Roberts's judicial philosophy - to the extent he admits to one - is of "modesty." Throughout his public life, an overwhelming jurisprudential concern has been the constraint of judicial power. He made it clear at his hearings and in rulings from the federal bench that the court exists not to act - not even to react - but chiefly to interpret passively. He has defended court-stripping legislation and argued for limiting judicial remedies.... John Roberts was unequivocal, at his hearing last month, that if Congress wants to protect the weak, it must write crystal-clear legislation. He would argue that at the end of the day, it's the court's job not to ensure equity or social justice but rather to narrowly construe the law as written regardless of whether the results are fair.

It is not the Court's job to decide what is fair. That is the Legislature's job, because they are elected by the people. The Court's job is to make sure that laws the Legislature passes are constitutional.