Strengthening Constitutional Self-Government

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Major Red Flag on Miers

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 can’t be a good sign, I thought.

Today’s 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. (I’ll 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.

Discussions - 6 Comments

As a conservative, I am partly stunned at this whole debacle. I say ’partly’ because this is just one more piece of evidence that suggests conservatives have invested too heavily in the Republican party. It is time to unload these bad stocks and stay home 2006 and possibly 2008. If the Republican’s can win elections without us, so be it. If not, then we will be ruled by Democrats who rule TO THE RIGHT of Bush on many issues. That will not be so bad, will it?

I’m not ready to go that far yet. I keep this faint hope that, should Miers be confirmed (which I doubt is going to happen), and she turns out to be a solid conservative justice, then Bush can say "I told you so" to all of us doubters. He’s really stretching it, though, to ask us to swallow this worrisome cipher on faith in him alone. But what if he is right about her and we are wrong? (It would help if they could give some evidence to us of what Bush sees in her beyond her fondness for M&M’s and puppy dog tails.)

And if Miers is confirmed and turns out to be another O’Connor-Kennedy, then it’s scortched earth time, baby. I’ll lead the posse to cast the Bush family into the outer reaches of the inferno.

Holmes is bad news, to be sure. If this comment is true, it’s bad for either of two reasons: (1) if she really knows Holmes’s view of the world, that makes her a positivist and not what conservatives should be endorsing in their jursiprudence, and (2) if she really doesn’t know Holmes and is just throwing out a famous name of someone reputed to be an intellectual giant on the Court, then she is blowing smoke, which reflects a lack of seriousness about her prospective job. Double yikes! That said, I, with the rest of the civilized world, await the hearings.

Why should conservatives be stunned or even suprised at libralism from Bush? I think the GOP record on court appointments speaks for itself. Unfortunately the conservative talk and liberal action of Bush and the GOP does too.

Holmes was more of a legal realist than positivist. Regardless, neither is good, and the former is worse.

Was Oliver Wendel Holmes really a horrible judge?

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