Andy Busch speculates on why conservatives are so angry at the President for the Miers nomination. Abbreviated, he argues thus: First, President Bush has asked conservatives to trust him once too often and, second, Bush has not made the public arguments that are needed to build long-term majorities. Conservatives dont want political victories on the cheap. In nominating Miers, Bush has lost another great opportunity at persuasion, and this may be seen as the final straw "of an administration pattern of simply not making the philosophical case for principles like federalism, limited government, or strict construction. Even when discussing judicial appointments, Bush has asserted the principles but rarely made the case for them. Though some of Reagan’s Supreme Court appointments may well be worse from a conservative standpoint than Miers will turn out to be, he also spent eight years of his presidency making the case for constitutionalism day in and day out. The GOP majority is built on the foundation laid by that effort twenty years ago. Conservatives anxiously ask where Bush’s disinclination to fight this fight will leave them twenty years from now."
Here it is. Note that the survey was taken within a few days of the Miers nomination, so the comparison with Roberts is based on very different levels of information. The good news, from the conservative point of view, is that the conservatism of the Court is not an issue for the majority of those surveyed, either because the President’s nominees don’t seem especially conservative or because the majorty like the conservatism they see. I’m generally speaking inclined toward the latter point of view.
These detailed deomgraphic breakouts point to the usual suspects--non-whites, seculars, and Democrats--as the only groups opposed to the Miers nomination. But most groups--the exceptions are Republicans, Protestants (evangelical and mainline), and seniors--are rather narrowly divided. Only liberal Democrats think that Miers would make the Court too conservative. In every other group, a majority isn’t worried about this.
Makes you think GWB could have won a fight over judicial philosophy in the proverbial court of public opinion.
Some defenders of Harriet Miers--above all, the indefatigable Hugh Hewitt--argue that, in effect, constitutional lawyering is not all that difficult, so that her apparent or alleged shortcomings in this regard are not sufficient to disqualify her. On this matter, Im with Richard Brookhiser: in a different age, one not so shot through with highfalutin theory, sound and extensive legal learning, an inexhaustible capacity for hard work, humility, and common sense (along, perhaps, with a good or equitable heart)--all of which Harriet Miers arguably has--might be sufficient qualifications for being a Supreme Court Justice. But a return to the primacy of these qualities, however desirable it is, cannot depend simply upon the assertion of their primacy. Bad, or over-clever, theory requires a theoretical antidote; otherwise, the possessors of sober prudence and common sense might always be susceptible to the clever sophists in robes and suits.
This has been true since Aristotle wrote the Ethics and Politics and remains true to this day.
Heres an example. Consider Ronald Dworkin who here cleverly justifies creative theorizing about the spirit and intention of the Constitution and here offers an example of how that theorizing would operate in the "constitutional" relationship between religion and politics:
He said there are two models America can follow: religious tolerant and secular tolerant. A religious tolerant community is committed to the principle of religion but respects people who choose not to practice a religion. A secular tolerant community considers itself neutral about religion but tolerant of people’s freedom to practice any religion they choose.
A religious tolerant community treats religion as something special, and sees no reason to extend the freedom of religion to other freedoms, for example gay marriage; in fact, [it] encourages prohibitions on other freedoms based on religious concerns. The secular tolerant community does not treat religion as something special; it treats the freedom of religion as a general freedom, as a general right to other freedoms.
While the Constitution may contain some "abstract" principles that require more elaboration than the words themselves offer--hence the move from "textualism" to some version of "originalism," which provides some understanding of what those who approved the Constitution thought they were signing onto--Dworkins understanding of this fact licenses all manner of interpetive creativity. Indeed, the demand for "theory" is the only thing that purportedly limits the bare assertion of political will. In the instance cited above, the problem with Dworkins theory is that neither alternative is self-evidently rooted in the text and history of the Constitution. And his preferred theory (secular toleration) poses an obvious textual problem, inasmuch as religious freedom is singled out int he First Amendment.
Now, I suppose that a dogged mistrust of all manner of cleverness might for a time be proof against impressive theoretical and rhetorical edifaces. But in order to avoid being understood merely as an act of political will, rather than an exercise of modest and humble judgment, it needs to be able to defend itself in the court of public and legal opinion. It needs theory.
Im confident that Roberts, Scalia, and Thomas have the theoretical chops to defend humble and modest judicial common sense. And there are any number of other potential nominees (McConnell and Brown come most readily to mind) who also have those chops. Does Miers?
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 (OConnor, Kennedy, Souter) were people who the White House didnt 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 havent 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 Kellys part to move up to the counsels 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 doesnt 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 OConnor (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 wed see Miers strut her stuff. Ill 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.
I have been trying to keep an open mind on Harriet Miers, in large part because I fear that a confirmation failure will make it much harder for the President to put forward a distinguished nominee in its aftermath. But the signs out there are not good. As I noted earlier, evangelicals are not exactly rallying behind her, rightly preferring to see her show her stuff. Its also quite clear that Republican Senators and their staffers are not exactly solidly in her corner. The two Judiciary Committee Senators most closely identified with social conservatives, Tom Coburn and Sam Brownback, are, according to the NYT, among the most skeptical. If they live up to their advance billing in the press (not a totally reliable source, Ill concede), the hearings could well be a bloodbath, with Miers essentially facing difficult and/or hostile questioning without much assistance from anyone on the other side of the table. I hope Mier has the resources to take it or the realism to recognize that she cant.
"If great intellectual powerhouse is a qualification to be a member of the court and represent the American people and the wishes of the American people and to interpret the Constitution, then I think we have a court so skewed on the intellectual side that we may not be getting representation of America as a whole," Coats said.
Leaving aside the fact that representation is supposed to provide for leaders who deserve it by being in some respects more able than their constituents, Coats misunderstands the Courts principal constituency, which is not the people simply, but the "constitutional people," whose wishes are embodied in the document. If the Court is supposed to be a representative body in the sense that Coats suggests, then we might as well just abandon the Constitution altogether and let the elected representatives duke it out.
Waller R. Newells (I know him by the name that begins with R) reflections on this subject are very much worth reading.
It looks even more likely that the Iraqi Constitution will be approved by the people with the new agreements reached with some important Sunni groups. Very promising news. I think the MSM has got to start giving the Iraqi political leaders some credit for what they have accomplished thus far, and then for what they are about to accomplish. Very good politics, thus far. Impressive.
Richard Brookhiser is perturbed:
If the Supreme Court has been behaving like a super legislature, then it is time for the court to take in sail. Congress could perhaps make it do so, by limiting its purview, but it won’t. That means Presidents have to appoint justices of modest inclination. That doesn’t mean justices of modest ability. In a better world, Harriet Miers’ appointment shouldn’t matter. Justice Miers wouldn’t bring that world about.
Read the whole thing, which includes references to Bushrod Washington (GWs nephew) and Brockholst Livingston, who packed a pistol to lethal effect (apparently).
When David Souter was nominated by Bush pere, and we were assured (by John Sununu, among others) that he would be a conservative "home run," a red flag went off in my mind when I heard Souter say that one of his favorite justices was Oliver Wendell Holmes. This cant be a good sign, I thought.
Todays Washington Post reports that Harriet Miers told Sen. Leahy that one of her favorite justices from history is . . . Oliver Wendell Holmes. If true, this is not a good sign. (Ill hold out hope Leahy is making this up.) Holmes is the epitome of positivist, nihilist jurisprudence.
Souter received strong support from conservatives when he was nominated, and after the full debacle of his appointment became evident, I recall a number of conservative leaders saying that never again would they support an unknown stealth nominee.
Miers needs to pick a very public fight with liberalism in or before her confirmation hearings to reassure conservatives. I put the odds of this at less than 1 in 20.
This article adds an important perspective on the role of Miers’s evangelicalism in her nomination, an issue I’ve raised here and here, that Ken Masugi has addressed here, here, and here, and that has been aired in these posts at Southern Appeal. Here’s the money quote:
"I don’t think it’s fair to call us sexist or elitist just because we ask the question, ’Why did he choose her instead of so many better-qualified candidates?’ " said Richard Cizik, vice president for governmental affairs at the National Association of Evangelicals.
"In the president’s view, he has chosen the best person he can find -- in the [Justice Antonin] Scalia and [Justice Clarence] Thomas tradition. But that remains to be seen," Mr. Cizik said. "I’m like a lot of other evangelicals -- eager to be persuaded. The Senate confirmation hearings are when we will make that judgment. Those hearings will be very critical for this nominee, I think."
If the White House was playing some sort of identity politics with this nomination, it hasn’t yet succeeded. This is good news, for it indicates a certain political maturity among evangelicals. As I have contended
before, the evangelical leadership is aware of the distinction between judging and policy-making, and hence of the differences between the qualifications for one and for the other. However gratified they might be to have an evangelical on the Court, they’re not about to support someone who hasn’t fully demonstrated her fitness just because of her religious affiliation.
The NYTs Jason DeParle chronicles liberal domestic policy disappointments in Katrinas aftermath. While few people may be paying attention to President Bushs bold new plans, even fewer are hearkening to the Democrats old, old plans.
"Things may develop faster than we imagine," Mr. Zawahiri wrote. "The aftermath of the collapse of American power in Vietnam - and how they ran and left their agents - is noteworthy. Because of that, we must be ready starting now, before events overtake us, and before we are surprised by the conspiracies of the Americans and the United Nations and their plans to fill the void behind them."
Need I say more?
Update:Actually, I need to, since there’s this good news from Iraq to note. I wonder if news of al Qaeda’s plans encouraged all sides to be more accommodating.
In this connection, see this article:
Now, "the only opponents should be the Zarqawi people," [Sunni negotiator Mishan] Jabouri said, referring to followers of Abu Musab Zarqawi, the head of the insurgent group al Qaeda in Iraq. "They oppose everything. If they wrote the constitution, they would oppose it."
My two cents: Yes, eminent domain is often used by the politically connected against those who lack the connections, but connections dont always simply follow class. We in Atlanta, for example, even build highways through well-to-do neighborhoods.
Any reader of John Locke would have to concede that natural property rights are civilized and limited once we enter civil society, and that the principal limitations are to be justified on behalf of the public good. The use and abuse of eminent domain should be regulated, above all, by a representative and hence responsive legislature and secondarily by a judiciary that upholds the Constitution. At the same time, Lockes emphasis on the natural roots of "civil" property rights ought to educate citizens and political leaders about the intimate relationship between property and individuality. We are, according to Locke, individuals who express ourselves largely through our labor, which is "reified" in property. If the smart undergrads who made their way into Yale Law School, and their professors, paid as much attention to the roots of classical liberalism as they appear to have done to Marxism and neo-Marxism, perhaps they would be able to engage Kens arguments without resorting to ad hominem attacks.
Brendan Miniter in todays Wall Street Journal:
"Anyone who suppresses all evidence of having conservative principles for decades in hopes of one day winning a seat on the Supreme Court probably isnt really a conservative."
E.J. Dionne, Jr. admires (or is it envies?) William F. Buckley, Jr. He professes to admire WFB’s commitment to giving conservatives a "serious intellectual life," but then suggests that conservative ideas are simply subservient "to the interests of the wealthy and powerful." If Dionne thinks ideology is serious intellectual life, he reveals his own limitations as an, er, intellectual. Or he is so self-righteous in his liberalism that he can’t imagine that those who disagree with him are moved by ideas rather than, or in addition to, interests, which also reveals his intellectual limitations.
All of this suggests that Dionne’s celebration of Buckley’s accomplishments is a little disingenuous. He writes of WFB’s war against "wing nuts" and anti-Semites on the right. Is he, or anyone else on the left, willing to wage a war against the all-too-common extremists on their side? Or does Dionne think that his side is beyond reproach? If he took Buckley seriously, as he professes to do, he’d look in the mirror, and look around himself.
Update: Dionne passed on an opportunity to marginalize the wing-nuts and anti-Semites here. If anyone can find evidence of any criticism of, say, Cindy Sheehan by E.J. Dionne, Jr. anywhere, please post the link in the comments.
Update #2: Over at WFB HQ, aka The Corner, Jonah Goldberg--not an ideologue in my sense of the word, unless hes either secretly defending a horde of wealth about which Im clueless or simply prostituting his wit and intellect to the highest bidder--has more here, here, and here.
In response to conservative opposition to Harriet Miers’ nomination, the Miers’ defenders have mounted a series of unworthy and, quite frankly, ridiculous attacks. First, Ed Gillespie appeared before a conservative gathering in Washington and suggested that the criticisms of Miers smelled of sexism and elitism. Gillespies’ comment, however, smelled of desperation--given that the short list preferred by conservatives included the likes of Judges Maura Corrigan (University of Detroit Law School), Alice Batchelder (Akron University School of Law), Edith Jones (University of Texas), Priscilla Owen (Baylor Law School), and Janice Rogers Brown (UCLA Law School). The comments were roundly ridiculed, but that didn’t stop Brit Hume from suggesting that David Frum, Bill Kristol, Charles Krauthammer, Laura Ingraham, and George Will are all school snobs who suffer from Ivy League blinders—notwithstanding their support for the aforementioned non-Ivy-League prospective nominees.
Having failed in this first attempt, Miers’ defenders appear to be starting a whisper campaign against prominent—and notably more qualified—judges who were oft-mentioned as being on the short list. On Fox News Sunday, when Bill Kristol suggested that Judges Edith Jones or Alice Batchelder would have been better picks, Hume interrupted:
Bill, I can tell you this about Alice Batchelder. She was very, very closely vetted. And you know what they found? They found all kinds of evidence of activism in her record. And they were quite surprised and not pleased to find that.
When Kristol questioned this new smear tactic, Brit incredulously suggested that this is something he found on his own. But, as Brit’s first statement makes clear, the only way he could have gotten this information about White House opinion is by hearing it from the White House (unless of course he is simply reporting second hand reports—which would mean that he was engaging in rather loose reporting practices).
What then is to be made of this attack on Judge Batchelder? Despite the allegation of "all kinds of evidence of activism," neither Hume nor any other Miers’ defender has produced a single case. By contrast, at least one NRO writer has listed several specific cases demonstrating the fact that Batchelder has a record of ruling according to the dictates of the law, even when the law is contrary to her own policy preferences. As a former clerk to Judge Batchelder, I can attest that she is the very picture of judicial restraint—someone who has a solid record of not prejudging cases. And you don’t need to take my word for it: you can simply look at her 20 years of well-reasoned opinions.
Now that Miers’ defenders are playing a game of confirmation "catch-up," they would do well to realize that they are not going to win over any conservatives by making spurious accusations about sexism, elitism, and activism--or by smearing the reputation of well-respected jurists.
The New York Times Magazine reported this story three years ago, but now Nature magazine has got round to reporting how viagra is helping to save endangered species. Chalk up another win for the pharmaceutical industry.
Via AmSpec Blog, we have this report of an attempt to overturn a 1913 Massachusetts law that prevents out-of-state residents from marrying in Massachusetts if their marriages wouldnt be legal back home. This is just the first step toward attempting to compel other states to honor marriage as defined by Massachusetts law, either through the courts or by a more subtle political means.
One of the highlights is her participation in Jones v. Bush, a 12th Amendment challenge to the results of the 2000 election, based upon the claim that George W. Bush and Dick Cheney were allegedly both inhabitants of Texas. As Beldar notes, Miers’s opposing counsel was the formidable
Sanford Levinson, who would make anyone’s short list of distinguished liberal con law types. Here’s Beldar’s summary of the result:
Well, the short answer, friends and neighbors, is that Harriet Miers just flat out kicked the distinguished Prof. Levinson’s butt in court. On just about every issue, too. And she did it not once, not twice, but three times: federal district court, then again on appeal in the Fifth Circuit, and then again in the U.S. Supreme Court — another one of those "cert. denied" notations.
You ask breathlessly: "But is that ’cert. denied’ really a win?" Why yes, friends, it surely is. Because, you see, when you’ve won in the lower courts, then your job as a lawyer is to persuade the Supreme Court not to take the case. Which is exactly what Harriet Miers did here — after first winning so convincingly in the federal district court that the Fifth Circuit, on the way up, didn’t even bother to write an opinion of its own.
There are some who would minimize the significance of this case, arguing that "[t]he Jones case seems pretty straightforward, and it’s hard to draw much of a conclusion about Miers’ legal skills from the opinions that were filed and the decisions that were reached."
Others remind us of the stakes and argue that the issues were far from clear. Among them is the aforementioned Professor Levinson, who co-authored a law review article on the subject.
I don’t have time at the moment to evaluate Levinson’s lengthy argument, other than to note that it’s not implausible, suggesting that the case was not a slam-dunk for Miers and Bush. For more, you might consult this article, which suggests a certain inventiveness and lawyerly plasticity on Miers’s part.
In general,Hugh Hewitt’s brief on Miers’s behalf is worth reading.
Update: This article reports Levinsons comments on the case and on Miers:
Levinson, who described the case as a "law professors dream," said that part of what made the case fun for him was that he could argue the case like a Republican, meaning that he and his colleagues based the case on a narrow reading of the Constitution going back to the Framers original intent. Miers took the opposite tack, sounding more like a liberal, arguing in her brief to the court for a "broad and inclusive" interpretation of the Constitution based on the belief that the clause makes no sense in todays world. She simultaneously focused on technicalities -- Cheney had forwarded his mail to Wyoming from his Dallas home and canceled his Texas drivers license.
Levinson said that to extrapolate from this case that Miers was a closet liberal would be a mistake. "This is a person who has almost no experience doing constitutional law, and the one case she is involved with is on a subject almost no one has talked about, at a time of extraordinary partisan interest," he said. "The only thing to infer from this is that shes a good lawyer." A federal judge dismissed the case on Dec. 1, 2000, the day it was filed.
"My guess is that Harkin et al. don’t know anything about Miers except that she is a conservative and a trusted confidante of GWB, which would normally have them frothing at the mouth to keep her off the Court. I suspect that they are saying a few kind words to enjoy the fun of seeing the Republican Party dividing and self-destructing, while, of course, making no commitment as to how they eventually will vote.
"One basic question that I don’t think has gotten enough attention is, why did President Bush nominate Miers in the first place? The answer, I think, is reasonably clear, and it’s deeply ironic that conservative critics are wondering whether, given her lack of a paper trail, she will turn into another David Souter. I think that Bush is acutely aware that the Souter nomination was his father’s worst and most avoidable mistake. I think that, as was widely reported, he liked John Roberts and was impressed by him during their relatively brief interview. But what grounds, really, does Bush have to trust Roberts? How does he know he won’t "grow in office"? It seems pretty obvious to me that Bush selected Miers to make damn sure that at least one of his nominees won’t drift to the left. He knows Miers well enough to know that she won’t be seduced by Washington Post editorials and Georgetown dinner parties, as a number of Republican appointees have been. He doesn’t think Roberts will be seduced, either, but he can’t know for sure. Isn’t it obvious that the reason Bush chose Miers instead of a better known, objectively better qualified nominee, is that he wanted to be absolutely sure of appointing a staunch and unwavering conservative?
"I can only imagine how Bush and those who are privy to his reasoning view the current outpouring of conservative venom against Miers. Which is not to retract my oft-stated view that Bush would have done better to choose one of the party’s leading intellectual lights; but, as I have said, that conviction does not rest on a suspicion that Harriet Miers might not be a conservative."
Rich Lowry comes to the defense of Tom DeLay, who "seems guilty only of committing politics."
George Will reflects on Rep. Tom Tancredo’s quixotic presidential candidacy in 2008. Maybe it is quixotic, but Tancredo also "knows that presidential primaries are, among other things, market research mechanisms whereby unserved constituencies are discovered and dormant issues brought to life." Illegal immigration will be his issue and the GOP will have to deal with it. Morton Kondracke argues that President Bush should step up to the plate and be a leader on this critical issue. "If Bush continues to let the issue fester, chances are good that Congress will deadlock, U.S. borders will remain insecure, 11 million illegal immigrants will continue to live in the shadows and be subject to exploitation and hundreds of people will die each year trying to make their way across the parched Arizona desert.
And if that happens, the issue is likely to become even more divisive in the GOP and in the country at large, possibly upsetting chances that Hispanics will emerge as a two-party swing constituency."