It’s Not Elitism, But Constitutional Stewardship

October 6, 2005

There has been a strong strain of anti-elitism in America from the time of the nation’s founding, through the period of Jacksonian Democracy and up to the present. Few want to be tagged with the “elitist” pejorative, including the highest of highbrows themselves, who pretend, despite their feelings of superiority, to be small “d” democrats and champions of the common man.

That’s why critics of the Miers’ nomination are taken aback by the unwarranted charge that they are demonstrating a brand of elitism. It is not elitism that is driving the doubters’ concerns.

The elitism charge obscures the paramount importance of the Supreme Court to preserving our structure of government and our liberties. We dare not allow ourselves to lose sight of what is at stake with these highly infrequent nominations to the Supreme Court.

Our Constitution’s framers ultimately decided on a structure of government that divided powers between national and state governments and among the three branches of the federal government. These discrete, but partially overlapping branches would each check the others from acquiring too much power at the expense of our freedoms.

This structure, along with the limitations on government imposed by the later-added Bill of Rights, was designed to prevent tyranny and maximize the prospect for individual liberties.

What the Framers may not have anticipated is the central role the Supreme Court would come to play in inter- and intra-governmental power struggles. But as early as 1803 in Marbury vs. Madison, the Court established itself as the final arbiter of constitutional questions.

While some scholars believe the early Court arrogated to itself this power of judicial review — the power of the Court to declare acts of the legislature and executive unconstitutional — others believe it is inherent in the Article III judicial power.

While it is interesting to debate such questions, the undeniable reality is that judicial review is here to stay. Not a single justice on the current Supreme Court, as far as I know, including Scalia and Thomas, would end judicial review. Reviewing the constitutionality of laws is what they do.

The Supreme Court’s power of judicial review is an awesome power because it is the final word, subject to no check, other than that it might impose on itself. And it’s not just any power we’re talking about, but the prerogative to determine the relative powers of all branches and levels of government. It is the power — and duty — to preserve the integrity of our governmental structure under the Constitution and, thus, our liberties.

While it has a duty to interpret the Constitution according to the plain meaning of its text, and, when possible, the original understanding of the Framers — it has the unchecked capacity, as the system has evolved, to invent constitutional provisions out of whole cloth. The Court’s importance, seen in this light, cannot be overstated. The same is true for each of its justices.

Conservatives, by advocating the appointment of the best of the best, are not bowing to elitism or snobbery but recognizing the critical importance of justices. Constitutional jurisprudence, while not rocket science, is indeed a scholarly enterprise.

Some have said that as long as a justice votes “correctly,” it doesn’t make any difference how brilliant he or she is. But Supreme Court justices don’t just vote. They analyze, discuss, debate and engage in the art of persuasion.

Most, if not all, of the liberal justices on the Court are intellectual heavyweights. When a vacancy on the Court occurs, the president has a solemn duty to nominate the best and the brightest. He should choose not only strict constructionists, but those who can hold their own against the liberal activist justices who are steadily rewriting the Constitution and removing, brick by brick, its foundation.

What conservative skeptics of the Miers appointment have been saying is that a pool of extraordinary conservative constitutional scholars exists, whose members have proven, through their legal careers, their unique qualifications and fitness for the position. While they don’t doubt Miers has excellent character and, perhaps, even superior abilities, they don’t see her — at least at this early stage — as possessing the optimum background to sit on the Court, compared to so many others.

One wonders whether those crying “elitism” would choose the best available lawyer to represent them if their neck were on the line — in a criminal or civil matter. If they deserve the best in their individual struggles, don’t all Americans in their collective struggle to remain free?

Picking a justice isn’t about rewarding individuals or satisfying gender, race or diversity concerns. It’s about protecting our sacred liberties. Since the best way to do that is to find the brightest constitutional scholars with the requisite character and sound judgment, then that is precisely what the president should do. That’s not elitism; it’s essential constitutional stewardship.