Gazing from across an ocean at the undoing of US President George W. Bush's nomination of Harriet Miers to the US Supreme Court was like gazing at Elysium.
In the public debate that erupted in the wake of Bush's announcement four weeks ago that he was nominating his personal attorney to the highest court in America, we saw what a real policy debate in a well-functioning democracy looks like. And if democracy is the best system of government known to man, then a well-functioning democratic system is the best of the best.
That is, it is paradise.
A well-functioning democracy is not a democracy that is infallible. As a system founded on the notion that people should be free, it assumes that people, being fallible will err. And so the test of whether a democracy is well-functioning does not lie in the number of mistakes that are made but in the system's ability to correct mistakes that have been made.
In nominating Miers, Bush made a mistake. Miers seemed to spring out of the thin air. She had no judicial experience. She had no known judicial philosophy. Aside from the fact that she is a crony of the president's, she seemed to have little to recommend her, first and foremost to Bush's political support base.
For the past five years, Bush's supporters have been holding their breath waiting for a chance to remake the Court by filling vacancies with justices who subscribe to the conservative judicial philosophy of originalism. Originalism is predicated on the view that constitutional interpretation must take place in the context of the Constitution itself – what it says and how it was understood by its framers. The conservative promotion of the originalist doctrine in recent years has been the result of popular outcry against the fact that since the Roe. v. Wade verdict in 1971 which foisted the legalization of abortion on an unwilling populace, liberal justices on the bench have been legislating political platforms and ideologies by judicial fiat.
Not only did Miers have no experience on the lower courts, she had no background in constitutional law and so, had no paper trail available for perusal by Americans interested in finding out what this woman who Bush was about to catapult to the Supreme Court stood for. Conservative pundits writing in the newspapers, and speaking on the radio and television went into an uproar.
As they researched her public record, they found that in past speeches she espoused views that appeared contrary to everything they stand for – not just on the issue of abortion, but on the more basic issue of how the Court should approach the law. That is, her guiding philosophy, to the extent she has one, is contrary to how conservatives in America believe that law should be conceived and adjudicated.
Aside from that, they decried the fact that the decision to nominate Miers was made in the wake of a faulty vetting process. Next to no one outside the president's immediate circle of advisors was questioned about their views of her candidacy before the nomination was made public.
For its part, the White House tried to spin the issue by pointing to Miers's attachment to evangelical Christianity. By arguing that Bush trusts her completely, the president's spin machine suggested that the Miers's nomination was about supporting the president, not about the fundamental issue of how the Court should approach interpreting the Constitution. Finally, the White House alleged that opposition to Miers was sexist and elitest. That is, the White House defended Miers not on principle, but on personality.
But the critics ignored the bait. The most fertile minds of American conservatism's public intelligentsia relentlessly stuck to the facts. With their media outlets – FOX News, talk radio, conservative newspapers and the Internet – conservatives stuck to the facts as they interpreted them. They stubbornly insisted on maintaining the debate on the level of principles – in which they passionately believe – and refused to stoop to personal attacks on either Miers – who may be a very pleasant woman – or on Bush, from whom they believe they have a right to expect more.
FOR THEIR part, Republican senators, who, like Bush, also rely on their conservative support base, made no excuses for the president and separated their view that Miers is unqualified for the Court from their overall support for Bush. The Democrats, understanding that their job is to oppose Bush, also offered no support for Miers in spite of the fact that on the face of it, she would be an ideal Republican justice for them – that is, an inexperienced rookie who tends towards their world-view.
In the end the critics won. Miers bowed out last week. On Monday Bush nominated Judge Samuel Alito to the Court. Alito, an appellate court judge, is known to be a stanch conservative and Bush's political base will undoubtedly go to the mat to get his nomination approved by the Senate.
What could be better than a situation where as a result of a reasoned, rational, intelligent and passionate policy dispute a leader is forced to back off of an unreasoned decision that is grounded not in general principle or in the fundamental philosophy he claims to believe in and around which he has repeatedly rallied his base to support him but in self-interest, egotism and cronyism?
What is a more fundamental proof than the Miers nomination and its downfall, that free debate and deliberation and an informed populace is the basis for the assertion that democracy is the best form of government because it allows for mistakes to be corrected rather than compounded?
BACK HERE in our Israeli foxhole, it seems like American democracy is not 6,000 miles away, but light years away. It isn't the ocean that separates us, but an unbridgeable chasm. Here, when in December 2003 Prime Minister Ariel Sharon abandoned his political base, strategic logic, his party's platform and ideology, not to mention common decency and announced, without any public debate that he was adopting the platform of the Left that had just been pulverized by the public in national elections, his former supporters had no ability to shape debate along rational lines.
They wrote columns, they went on television, on radio. Hundreds of thousands of law-abiding citizens went to demonstration after demonstration protesting Sharon's plan to expel all Jews from Gaza and northern Samaria. Ministers who opposed Sharon's policy resigned their positions in the government and those who refused to resign were fired. The Likud held a referendum; Sharon lost and proceeded to ignore the vote he promised to honor.
And throughout it all, no matter what anyone did, no matter what anyone said, the Left, with its control over the media continued to crush all debate. All who opposed Sharon were castigated as extremists or inciters, or violent, criminal enemies of the people.
And even today, with al-Qaida operating in Gaza, with the border with Egypt open for terror traffic, with arms flooding into Gaza, with Judea and Samaria, as predicted becoming the new center of operations for the terrorists, the media continues to protect Sharon.
Now, when two months after they were expelled from their homes, the former residents of Gaza and northern Samaria are living in refugee camps in Netivot and Nitzan and daily are threatened with expulsion from hotels and dormitories throughout the country, when two months into the school year their children still have nowhere to enroll, it is still politically unacceptable to attack Sharon.
Any politician who suggests that he is irresponsible or worse is castigated by the media as an opportunist, and of course, an extremist. And if someone manages to squeeze a compelling point into a hostile radio interview before he is brutally cut off, the media pulls out its atomic bomb and reminds us that the entire Israeli Right assas
sinated Yitzhak Rabin, not Yigal Amir his sociopathic murderer.
Here in our foxhole in Israel, the nirvana that is American democracy seems like the land where the gods would play.
Originally published in The Jerusalem Post.
No Comments