Strengthening Constitutional Self-Government

No Left Turns

Olasky on Miers

Ken Masugi calls our attention to a series of posts by Marvin Olasky, the Texas-based editor of World magazine. According to Olasky’s source, Miers is an active member of a conservative evangelical church, with views that match that general profile. This post on her "originalism" is helpful.

I’m still keeping an open mind.

Discussions - 15 Comments

I don’t have a strong view on Miers but I think that the suggestion that she goes to an evangelical church and is active in it means she would be a conservative JUDGE is pretty farfetched. There are actually quite a number of VERY religious Christians, Jews and Muslims who are political and judicial liberals. This goes to the public/private distinction and the different ways that different religious people interpret it. Myself I’ve known individuals with a conservative, orthodox or fundamentalist personal morality who were staunch liberals--and a few, perhaps too many, individuals whose personal morality was utterly licentious who were politically rightwing.

It is a scandal that, after 50 years of liberal activism on SCOTUS, at a time when we are in perhaps the best position ever to gain ground on the Court, Bush has appointed someone who has all of us scratching our heads.

The point isn’t whether Miers MIGHT be OK. The point is that we shouldn’t be asking such questions. We should have a nominee who clearly deserves it and is clearly one of us. In addition, we should have someone of undisputed intellectual credentials, since the task before us in regard to judicial tyranny is to a large degree intellectual in nature. Does Bush understand this? He doesn’t seem to.
Miers is looking like an identity pick ... giving the religious right someone of their social tribe and the RINOs a woman.

Sorry, but attendance at, even heavy involvement in, a theologically conservative church simply doesn’t cut it for a SCOTUS nomination. It is a comparison of apples and oranges.

Yes, Rob, there are folks who are both theologically conservative evangelicals and political liberals. Many are African-American; others can be found at non-denominational mega-churches across the country and scattered in the pews of evangelical Calvinist denominations like the Christian Reformed Church, with which I am quite familiar.

Olasky’s source does not suggest that Miers is one of the 30% or so of evangelicals who would have supported John Kerry in the last election (d’oh!). In fact, he suggests that her views more or less conform to the red state evangelical stereotype.

As such, her nomination may play a little better outside the Beltway than conservative intellectuals expect. Nonetheless, given the distinguished jurists waiting in the wings (including my old Michigan State classmate Michael McConnell, also a red state evangelical, by the way), we conservative intellectuals can’t help but be disappointed.

Olasky’s posts are helpful in establishing that she probably has socially conservative opinions and is probably pro-life. But they don’t show she knows anything about constitutional law.


I couldn’t agree more.

Let me hasten to add, lest I be misunderstood, that Miers’s religious affiliation ought to be irrelevant, that the only consideration that matters here is her fidelity to some version of original intent. I no more want Harriet Miers legislating her red state evangelical views (if that’s in fact what they are) from the bench than I would want Lawrence Tribe or Cass Sunstein legislating their presumably somewhat different views.

To give Bush the best possible case: Based on her rather unwavering evangelical background and the limited testimony of others, we can say she’s likely very solid about reversing Roe and not inventing a const. right to same-sex marriage. And Bush, based upon his many conversations with her, knows that for sure--he’s more sure about her votes on those key issues than he would be on those of almost any other possible nominee. Let’s say he thinks those results are the bottom line, and he wants to get someone confirmed he will certainly help achieve them. Then it’s not arrogance or cronyism but a certain craftiness that guides him. She will easily get confirmed with the Democratic hope of her Souterization, but truth is that, unlike Souter, she has rock-solid moral convictions that will guide her constitutional interpretation. It’s still not a good appointment, because the key is to change the way the country thinks about the place of the Court under the Constitution, and she isn’t prepared to shape our constitutional thinking. Still, it may be in a way an honorable appointment.

I was surprised to see you mention Cass Sunstein, Mr. Knippenberg. Was there some implication there that he is anti-religious or anti-Christian?

Sunstein wrote a great piece for the Sept. issue of Harper’s, entitled "Fighting for the Supreme Court: How right-wing judges are transforming the Constitution." A great antidote to the notion that "activism" can, or does, only come from the left, and a great deconstruction of the concept of "original intent" and the like... For those who won’t be buying, borrowing or checking out the magazine from your libraries, the article can be found online here.

He is well-credentialed, highly qualified and a brilliant scholar, and this is a most informative article.

Arthur: thanks for the link to Sunstein’s excellent article.

Now it remains to be seen whether any of the regulars of this little corner of the internet will read it.

My impression is that Miers is a team player and a pragmatist. She’s run a major law firm, she’s worked well with Democrats, and she was president of the Texas bar. I would find it very out of character for such a person to do something as threatening to the fabric of American society as to "reverse" Roe v. Wade. Law firms and professional societies are important instruments of socialization that make people like Miers think twice and more than twice about radicalism that can rent the fabric of society. If Roe is overturned, the streets will burn in America and I just don’t see Miers as the type of individual who would say: "Let them burn because I’m right!" You don’t become President of a bar association without caring a fair bit about the views of your fellow attorneys, about how you are seen in the profession. Miers is 60: I doubt she would want to spend the rest of her life with the stigma of having done something so reckless and injudicious as reversing Roe v. Wade and taking back rights the enjoyment of which has become part of the spirit of our regime.
Of course, without overturning Roe, one could certainly in appropriate cases expand the scope for state regulation of abortion consistent with the right to privacy elucidated in Roe. That’s a very different proposition. It suggests that you can have a right to privacy, and it can keep women and doctors from being thrown in jail for necessitious if tragic choices, but it doesn’t exclude a collectivity from expressing its view of the morality of abortion in other ways.

Correction - in comment 8, I meant to ask if there was some implication that She is anti-religious or anti-Christian, of course.

Actually, Arthur, Sunstein is a man. To answer your primary concern, Sunstein’s entire argument relies on a definition of "judicial activism" that is quite different than the definition used by conservatives. The latter, which is the definition traditionally employed in American discourse, entails a judge substituting his or her own preferences for the law (i.e., "legislating from the bench"). This takes many forms, such as (1) inventing "rights" that are obviously not in the Constitution, (2) reinterpreting statutes and constitutional provisions to say things they do not say (see Kelo for a recent example, where the court dramatically expanded the scope of the public use doctrine by redefining "public use" to mean "public benefit"), and (3) upholding or striking down laws not because the Constitution requires it, but rather because of the judge’s personal preferences (see O’Connor’s pitiful concurrence in the recent Kentucky Ten Commandments case, which focuses on her thoughts about the importance of diversity but does not discuss any of the court’s precedents). Sunstein, by contrast, redefines activism as "striking down a democratically enacted federal statute." This is idiocy. It is not "activist" to strike down a law because it runs afoul of the Constitution. That is a judge’s job.

Sunstein is simply attempting to twist the terms of the debate so that he can use a term that accurately criticizes out-of-control liberal judges to attack Bush’s quite dissimilar nominees. If a conservative academic had come up with a theory this flawed, it would not have even been published in a mediocre law review, let alone turned into a book bandied about by members of the judiciary committee.

Christobel - did you see comment 12, the one right before yours? Arthur had already corrected himself regarding his misuse of "he." The rest of your rant hardly counters anything of Sunstein’s. You’re just spouting off.

Guess I had the lovely lady Miers on my mind, as I know that Cass Sunstein is male, and was correct the first time around. Good god, sorry about that.

The rest of my "rant" undercuts the entire premise of Sunstein’s argument, as Arthur calls it, the "great antidote to the notion that ’activism’ can, or does, only come from the left." Sunstein provides no such antidote. He simply redefines "activism" in a way that allows him to apply the term to judges who uphold the Constitution. Of course, Sunstein does not and cannot show that judicial conservatives apply their personal preferences rather than the text. Instead, he twists the terminology in order to accomplish his political goals.

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