Strengthening Constitutional Self-Government

No Left Turns

The Miers Enigma

Trying to make a judgment about Harriet Miers is reminding me of the Churchill comment about the Soviet Union being an enigma surrounded by a riddle and wrapped in a mystery. There are two arguments in her favor that should give us pause. The first, from Hugh Hewitt and others, is that the past nominees who went bad (O’Connor, Kennedy, Souter) were people who the White House didn’t know and came from far outside. The three best justices (Rehnquist, Scalia, and Thomas) came from within the administrations, (though of course Thomas and Scalia had put in some bench time on the DC Circuit). Few Presidents have been as close to a nominee as Bush is to Miers. While a good argument, in the other three cases (Rehnquist, Scalia, and Thomas) there was lots of independent evidence that they were solid picks. Rehnquist had worked on the Goldwater campaign in 1964; Scalia had a long publication record, and Thomas had given those very ringing speeches about natural law and natural right, showing that he had a definite constitutional philosophy. With Miers we still haven’t the slightest clue.

The second argument is that Miers was apparently first recommended for consideration by her deputy, Larry Kelly. Kelly is, according to reliable sources I trust, One Of Us--a good Federalist Society conservative from the University of Notre Dame Law School. Kelly is right now properly keeping a discrete silence about the matter, and not returning reporters’ phone calls. It is not likely this is Machiavellian calculation on Kelly’s part to move up to the counsel’s office himself; he intends to return to Notre Dame next year. If Kelly thinks Miers is worthy of appointment, it should give us encouragement.

But then there is transcript of Miers testimony back in 1990, posted by Drudge today, where she criticizes the Federalist Society for being too politicized, but then goes on to say that she doesn’t consider the NAACP to be a politicized group. This is a horrible sign. Then, too, we hear some old Texas friends saying she is "conservative on social issues, but liberal on economic issues." If this is vaguely true it is the sign of a deeply confused and unreliable mind. One thing to note over the last 20 years is the high correlation between Supreme Court votes on social issues and votes on economic and regulatory issues (and federalism), especially property rights. The Reagan Administration Justice Department, I am told, used prospective judges’ views on property rights as a proxy for their views on Roe v. Wade, and with the exception of the inconsistent O’Connor (who voted right on most property rights cases), this correlation has been near iron clad.

So I repair to what I have been saying from the beginning. Miers needs to say something specific in her hearings. She needs to give Leahy and Biden an ulcer. Ken Mehlman of the RNC told the blogger conference call yesterday to "wait for the hearings," and we’d see Miers strut her stuff. I’ll be disappointed and dismayed if it is just pablum about her character, glass-ceiling shattering, and what an honor it has been to work for George W. Bush.

Discussions - 19 Comments

CORRECTION: The Deputy White House counsel is William Kelley, not Larry Kelly, as I have it. That’s the trouble with going purely from memory.

I don’t care who she is close friends with or who she was recommended by. Harry Blackmun was appointed on the recommendation and lobbying of his lifelong friend, Warren Burger. Hell, at the time of his appointment, Blackmun was more promising from a conservative’s standpoint than Miers, and look what he amounted to.

If Miers is "conservative on social issues, but liberal on economic issues," wouldn’t that essentially make her a fascist?

I’m beginning to have seconds thoughts about Miers. I just can’t seem to get Bush’s "sexism" charge out of my head. Suddenly it’s like all the other stuff, the "new tone in Washington" bs, the Teddy Kennedy-NCLB Act, the huge Medicare drug entitlement spending, the tariff blunder, the CFR assault on free speech (he rolled over for McCain on that one), the New Orleans money grab, the... Sometimes Dubya reminds me of Billy Clinton for crying out loud!

Bush delivered a crushed al Qaeda and a brilliant new Chief Justice for America. Do these alone cover a multitude of otherwise silly and unnecessary missteps, blunders and outright advancement of New Deal liberalism?

Sigh... and we’ll just have to wait till JP "Kelo v. New London" Stevens croaks before we get another shot at tipping the court away from fascism.


I think Mr. Mehlman’s "wait for the hearings" is just Washington-speak for:
Please take the heat off us.

A sign that we should do exactly the opposite. This administration will not look out for us. Only we can.

Probably not a fascist, John. That’s pretty harsh...more likely a populist. Of course, I wouldn’t want either type on the court.

What’s it gonna take to get W to withdraw this woman? The more I find out the less I like her.

For the record: There may be some strong correlation between "conservative" votes on property and on abortion, but I don’t see the connection as necessary.
From another view, a consistent "theory" of judicial restraint might have the Court back off in both areas. If Mary Ann Glendon were appointed to the court, she would certainly work to rollback ROE, but she would do the same (judically, at least) for the welfare state.

Add a "not" btwn would and do in the last line above: Point--she would not be an activist libetarian.

Too bad Mary Ann wasn’t nominated.

Then, too, we hear some old Texas friends saying she is "conservative on social issues, but liberal on economic issues." If this is vaguely true it is the sign of a deeply confused and unreliable mind.

Contradicitur! The phrase "conservative on social issues, but liberal on economic issues" is an accurate description (albeit in inadequate shorthand) of a vast swath of Christian (particularly Catholic) social teaching. By this standard, every Pope since Leo XIII has had "a deeply confused and unreliable mind." You may not agree with this position, but is is a perfectly consistent set of views shared by millions of Americans. It basically is "compassionate conservatism," and represents as coherent a view of political issues as any of the others out there. It also is probably an accurate description of Justice Byron White’s (a Democrat who opposed Roe) views. While there are many objections that can be made to this nomination, calling her politics (and by extension the politics of millions of Christians) "confused" is nonsense. Besides, aren’t a judge’s personal political biases supposed to be irrelevant to how they decide cases?

Daniel: Decent point about how that description would fit some Catholic social teaching, but we’re talking constitutional jurisprudence here, not social theology. The same kind of constitutional restraint (or "originalism" if you like) that would prevent someone from finding Roe in the "penumbras" of the constitution should lead a person to see that the construction of the commerce clause in Wickard v Filburn to be just as absurd. One’s theology shouldn’t enter into it.

Daniel’s point: More than a decent one.

Why could a justice following "a consistent ethic of judicial restraint" work to overturn ROE but not WICKARD?
In WICKARD, the Court declined to declare unconstitutional an act of a "political" branch. In ROE, the Court acted aggressively against 46 state legislatures in an altogether unprecedented way. So in a pretty fundamental way to affirm WICKARD and reject ROE is to be on the side of judicial restraint.

Some (like the Court in PLANNED PARENTHOOD and the very smart Rob H on this blog) say that even if ROE were itself judicial activism to overturn it now would also be judicial activism. It would disrupt the rights-based way of life to which American women have become accustomed over the last generation.

But in this respect ROE is more like DRED SCOTT than BROWN v. BOARD over even WICKARD. Both ROE and DRED SCOTT enfamed national controversy more than generated a national consensus on a fundamental issue. A decade after BROWN it was publicly disreputable to dispute its result, and obviously there’s no significant national faction opposed to WICKARD (and the constitutionality of the welfare state generally). So, as Scalia says, the only way to cure the massive and persistent damage and distortion ROE has inflicted on our political system is to get the Court out of the abortion business altogether. But to say the least, there’s no widespread perception that WICKARD has done comparable damage, and it’s the job of the political branches to rollback the welfare state, if that’s the right way to go.

"no significant national faction opposed to WICKARD"!!! Come again??? I suppose this is true, if the followers of, or example, Richard Epstein (or Clarence Thomas) are an insignificant national faction. What planet does this come from?

Well, that’s exactly what I mean. Epstein has only a narrow following in the intellectual world. I once attended a speech by Epstein (a brilliant one that did focus on Wickard) with Harvey Mansfield sitting next to me. Harvey’s comment at the conclusion: "What an extremist!" I will repeat: I don’t think there’s a significant national faction in favor of a JUDICIAL rollback of the welfare state. The rollback would have to come from Congress. And I would add that an increasing number of our libertarians are becoming consistent in a different direction--wanting judicially mandated same-sex marriage and a judicially mandated restoration of our "lost Constitution." This consistency is emerging, I willingly admit, in a very small world of libertarian intellectuals. But it may grow as a problem.

The local Ms. Manners has reminded me to add that I’m saying what might seem to be outrageous things to stimulate enjoyable and instructive "dialogue" among conservatives in a relatively private and "safe" place. It goes without saying that I admire and love all of you, and especially Mr. Hayward’s great work on Reagan, among other things. But let me also add: Judicial ACTIVISM was an issue in the election of 2004, and may have been crucial in reelecting the president. What that REALLY means is the Court should back off when it comes to religion, abortion, and same-sex marriage.

Peter, I don’t have a local Ms. Manners to counsel me, but I will state, for the record, that I admire and love you. However, I’m perplexed by some of your position. It seems to me you mix-and-match three things that need to be distinguished, then their proper combination(s) laid out and discussed. What do I mean? What am I referring to? The three: 1) the issue of the proper (or, at least, a genuinely plausible) resolution of the cases in question (Wickard, Roe, Casey, Lawrence); 2) the issue of the political calculation(s) (on the Court and off) of what overturning the decision(s) would require, effect, and so forth; 3) judicial activism as a concept. So, let me ask you a few questions: 1) Was Wickard properly decided? Was Griswold properly decided? Roe? Lawrence? 2a) What’s your view of stare decisis? Of course it’s a general and generally correct judicial principle. What, though, are its limits, if any? Do you agree with the Casey invocation/exposition of it? (You seem to hint in this direction.) 2b) Does political calculation (e.g., having a constituency, or "people being generally okay with the status quo") trump all other considerations? Regularly trump? In a certain category of cases/issues, trump?
3) You regularly seem to lump possible "conservative" overrulings of (arguably badly/wrongly decided) SC decisions as "judicial activism" that is likenable to liberal progressive ones. Is that (approximately) your view? Is there no principled (as opposed to "results-oriented" (conservative) jurisprudence that would justify such overrulings? Do you have something of/like a Scalia/Bork view that there’s tons of issues and areas that the Constitution’s silent on and should be left, by the judiciary, to democratic processes, to public and legislative debate and determination?

And one more: Speaking of Wickard and the administrative regulatory state, do you think post-1937 Commerce Clause jurisprudence is, by and large, correct? If not, in principle what would you do about it? (I.e., do political calulations determine one’s response?)

My inner Ms. Manners says, "that’s quite enough." She’s right, of course.

It is a beautiful day in Georgia! Paul does raise some of the big questions well, although he ignores much of what I said too. Some answers, although he will, with good reason, say not nearly enough of them.

1. Griswold, Roe, and Lawrence were all wrongly decided. In each case, a statute was voided for very insufficient const. reasons. The statutes in Griswold and Lawrence were stupid public policy, but not unconst.
We should note that the Court has abandoned altogether the penumbra/bill of rights (right of privacy) arguments altogether beginning in PLANNED PARENTHOOD--replacing them with a pure theory of substantive Due Process liberty unconstrained by any specific const. text (reminding us too much of both LOCHNER and DRED SCOTT). So we can no longer satisfy ourselves with mocking penumbras and emanations and even incorporation. That pure theory is given an explicitly progressivist dimension in LAWRENCE by that good Republican Kennedy--what seems like necessary and proper constraints to our liberty in one generation seem despotic to the next: And it’s the job of the Court to notice and take the lead in our historical march to consistent individualism or autonomy. That line of thinking is the progressivist, extremely individualist TYRANNY that the Court is imposing on us today. That tyranny, I say, can be called libertarian.
2. Comparatively speaking, the 1941 onward interpretation of the Commerce Clause is plausible and benign. The latter was the Court caving to political pressure from the President with the backing of Congress. I wish the Presient and Congress would apply similar pressure to today’s Court.
3. If the Republican President and Congress really want WICKARD reversed,
surely they should campaign on that issue. They should say, in effect, that much or most of the New Deal is unconstitutional--and that the Court was right in its rather rigid articulation of the distinction between commerce and production or manufacturing in 1935/1936. (That could, and quite rightly, actually compromise between the two extreme interpretations.) My own view is that most New Deal and Progressive legislation is very often bad, sometimes very bad public policy, but not nearly as often as libertarians or Paul think unconstitutional.
4. My view of STARE DECISIS does owe something to Scalia but nothing to PLANNED PARENTHOOD. There the Court says that it would be disastrous (for both social stability and its own power) for the Court to reverse a fundamental precedent under fire. And its only two examples of fundamental precedents are BROWN and ROE. I said something about the difference between BROWN and ROE above. Under the theory found in PP, I don’t think WICKARD is really either fundamental or under fire (to repeat myself--there’s no big-time public controversy about it, no demonstrations, no campaigning..., and women have not organized their right lives around it!) So under the PP theory it could be reversed. My inclination against that reversal (in the absence of overwhelming evidence) is the acquiescence of President, Congress, and public opinion over a long period in the result.
5. I do think that all our history shows (from DRED SCOTT to LAWRENCE/GOODRIDGE) that it is both imprudent and unconstitutional for "regime transformation" to come from the Court. BROWN, as all we Straussians know, is at best a very ambiguous exception.

Thanks a bunch, Peter. I totally agree with your #1 (and appreciate the caps on TYRANNY); you’re right to think that we part company on post-1937 Commerce Clause jurisprudence, which I think is, in its own way, almost as implausible and anti-constitutional as "privacy" jurisprudence. Both are predicated on "living constitutionalism" and "progressive liberalism." The damage done to constitutional construction by "general welfare" and "commerce" inflation was great, ie., real and significant, was it not? Inflating Congress’s and the President’s powers far beyond intended constitutional limits? And wasn’t it the other side of the pact the Court made with the other branches: you do what you want with the economy, we’re going to take care of "society" and discrete and insular minorities in the name of a "hierarchy of social and moral values." I do agree with you that there’s currently not a snowball’s chance in h-ll of it being revisted. But, to repeat: we’re in agreement about privacy/autonomy: it is the new form of tyranny in our day.
Now, I have to go pontificate on Virgil. Say hello to Ms. Manners.

My disagreement with Paul is less radical than I would want it to be for this to be fun:
1. I agree that there’s little chance in hell, at least, that the welfare/admin state will be rolled back significantly by the judiciary.
2. Still, the difference remains between times when the Court merely accepts a "regime change" initiated by an alliance between the other two branches and when it initiates its own.
(That’s one difference btwn Darby/Wickard etc. and Roe/Lawrence etc.)
3. It’s not so clear to me that today’s president and maybe even today’s Congress have more power than the Framers intended. (See David Nichols’ book on the presidency, for instance.)
4. The deal implicitly made that the Court would surrender its concern for "economic rights" in return for free rein in inventing non-economic rights was indefensible, of course. And the latter needs to be stopped.

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