Wednesday, October 19, 2005

I've been rather strongly pro-Miers, but I'm willing to reconsider.

My experience on the City Council helps me understand the interplay between serving on a policy making board and serving as a judge. An example, of this distinction can be seen in a vote of the council to ban flag burning. The Council was free to state its policy position, we were against flag burning. The Supreme Court’s role was to determine whether our Constitution allows such a ban.

She violated her oath of office to uphold the constitution, and doesn't even notice there's a problem. Granted, this puts her in the same class with an overwhelming majority of the senate and house, both on flag burning and many other issues.
For me, being an oathbreaker is potentially disqualifying. When the subject matter of the oath she broke was her promise to uphold the constitution, she cannot be trusted as its guardian. Now, it's certainly possible that members of one branch may not share the same opinion of what is constitutional and what isn't, than another branch. But when that is the case, the reasons for disagreement should be spelled out and carefully argued. "[F]ree to state its policy position" doesn't cut it.
I withdraw my prior expressed support for Miers. Not that my position matters much, but it's my soapbox to say what I want.

update: as is so often the case, Will Baude has already blogged about this. He points out that maybe a city council person doesn't take an oath to uphold the constitution, so it may not be her oath of office at issue, but her oath as an attorney.
While my oath as an attorney included a promise to uphold the constitutions, it also had a bunch of aspirational goals, like "never turn down a client just cuz they won't pay you" which aren't really expected to be followed.

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