f/k/a archives . . . real opinions & real haiku

Lisa Stone recently reminded us that she’s “no attorney.”  But,

she certainly does cyber-hang with a lot of them at the Law.com

Weblog Network.  Would one of them please explain to her why

a judge

 

just might — appropriately — have a different opinion

on an issue [or the outcome of the judicial or legislative

process relating to that issue] than he or she has as a

private citizen or as

 

                                                                   a politician “Vote neg” .

 

Therefore, despite Lisa’s post today, we cannot and should

not know how Harriet Miers would vote when presented with

abortion-related issues, simply by knowing her stance as a

politician in 1989. (See, e.g., A Matter of Interpretation, by

Antonin Scalia, 1987; cf., The Federalist Papers.)

 

update (9:30 PM):  Lisa has added this to her post, in response

to my above complaint:

“Updated graph: Sorry, but I think the selling of this

particular candidate in the past week–both over and

under-the-counter–makes this appropriate distinction

of roles (so appropriate-sounding with the nomination

of Roberts, who worked for Reagan and then served

as a judge) sound disingenuous where Miers is concerned. “

I just emailed Lisa, saying that making the distinction is the only

appropriate reply that the White House or any other interested

parties should be making, and adding: “We shouldn’t expect a direct

answer to the abortion question, even at the nomination hearings.  

Your take on this in today’s post sounds more like a journalist trying

to create a controversy than one trying to help explain an important

public issue.” 

 

update (Oct. 19, 2005): Steve Bainbridge made my point nicely

today, in a post titled “Will She or Won’t She?“:

“I start with the hope that Miers’ 1989 statement does not

tell us how she will rule. In my book (or, more precisely,

my article), judges are not supposed to decide cases

based on personal political policy preferences. They are

supposed to try to figure out what the law is, which in the

case of Roe means looking at the text of the Constitution,

the intent of the framers, and the traditions of our country

(i.e., originalism, textualism, and traditionalism). One thus

can readily imagine a judge who would vote to support a

state ban on abortions and then turn around and, in his

capacity as a judge, strike that very same law down because

the judge believes stare decisis requires him or her to adhere

to Roe.”

 

• 
  
  by dagosan:                                               

running for judge —

she practices

her braille

 

                           [Oct. 18, 2005]