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.
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