Sunday, October 16, 2005

Undecided No More On Harriet Miers

I posted earlier about the opposing opinions on the Harriet Miers nomination that I get from my morning and afternoon commute. Laura Ingraham opposes the nomination, and Hugh Hewitt supports the nomination.

When President Bush first made the announcement, I was stunned. Disappointed. Clueless. She wasn't one of the names on "short list" of everyone in the know. Laura (who is an attorney and who clerked for Supreme Court Justice Clarence Thomas) and Hugh (who is a Constitutional Law professor at Chapman University Law School) both had very similar short lists that included Michael Luttig and Michael McConnell. On the day of the nomination, however, it became very clear that Laura and Hugh were headed in opposite directions about the worthiness of Harriet Miers.

I remained hopelessly undecided.

Until this past Thursday.

I've listened to Laura and Hugh on the radio for the past couple weeks, listened to the guests they had on their shows to talk about the nomination and the nominee, and read the arguments on both sides of the question. It wasn't until Thursday on my drive to work that I realized I had left the ranks of the undecided. Laura was talking against the nomination, and I turned my car radio off, because I couldn't listen anymore.

When Laura was coming back from a break, they played a sound clip from a debate between Justice Scalia and Justice Breyer. Scalia was telling Breyer that Breyer only selected those decisions made by international courts that supported Breyer's views and ignored the others.

When Laura started talking about the Miers nomination, she quoted John Fund, Bill Kristol, and other opponents of Miers. But she didn't mention Fred Barnes, Hugh Hewitt, Ken Starr, or Jay Sekulow, all of whom support the Miers nomination. She was doing exactly the same picking and choosing that she criticized Breyer of doing when she played the Scalia/Breyer debate sound bite.

In the end, I found Hugh's arguments more compelling. Constitutional law is not rocket science. The Constitution is short and quickly read--even with all those ammendments--and it's fairly easy to understand. Since conservatives are looking for an originalist or a strict constructionist (someone who will look to the Constitution itself and not make stuff up that the Constitution doesn't say), then we don't need a nominee who has spent his or her entire career analyzing the kind of constitutional case law that determines that localized endangered toads threatened by a housing development somehow fall under the interstate commerce provisions of the Constitution.

Since the Constitution isn't that hard, and the constitutional legal establishment is starting to sound like they're suffering from some intellectual inbreeding, now seems like as good a time as any for some fresh blood to be introduced into the "family." Provided that the fresh blood is sharp and capable. Hugh has posted emails and links to blogs that have spelled out the stellar qualities of Harriet Miers. Here's just one of those posts.

It seems to me, based on the instantaneous reaction against Miers' nomination, followed still by relentless opposition, that Laura and her fellow opponents are pouting over not having got their way. They knew who they wanted (Luttig or McConnell or Owens or Jones) and they didn't get it and they're looking for justification for their anger.

If their opposition came after the hearings, then I might give more weight to their arguments.

As it is, I would advise Laura and her friends to reread the Constitution. The last time I looked, it didn't give the power to nominate judges to the leading loyal members of the President's political party. The Constitution gave that power to the President alone, and he has exercised it.

So to paraphrase the title of a wonderful book, "Shut Up and Broadcast," Laura.

71 comments:

Anonymous said...

Skye, had the same reaction. Generally, I love Laura's wit and enthusiasm but I'm tired of the relentlesss whinning. What happened to giving the President his pick?

Jeremy said...

You wrote: "If their opposition came after the hearings, then I might give more weight to their arguments."

This fails to take into account two serious concerns. First, if a conservative Miers opponent holds a good-faith, well-reasoned opposition to her (as I do) AND believes that waiting until after the hearings will be too late to successfully oppose, why should that person wait until hearings are over when his or her opposition will be meaningless?

Further, the notion that criticism is improper until after the confirmation hearings overlooks a major function of the hearings. The hearings are a time when Senators should be able to present the nominees with criticisms and oppositions of the nominee and ask the nominee to address those concerns. If it's wrong to criticize and oppose the nominee until after the hearings, then we essentially make the hearings meaningless. The only criticisms addressed at the hearings would be those of the Senators. I want my two senators to present my concerns to Ms. Miers and ask her for a response. What's wrong with that?

The second concern is more basic. Most Miers opponents oppose her simply because they have no idea where she stands on important issues related to jurisprudence. The confirmation hearings will tell us nothing or next to nothing about her approach to jurisprudence. We know our concerns about Miers' jurisprudence will not be allayed in the hearings, due to the "Ginsburg precedent."

The hearings might allay some concerns about her qualifications, or perhaps add to those concerns, but the hearings will shed no light on conservatives' core concern: her jurisprudence.

If you disagree with my analysis, please cite one thing about John Roberts' jurisprudential outlook that you learned during his confirmation hearings that was not available prior to the confirmation hearings.

Beth Tu Hoffman said...

I am siding with Hugh Hewitt. His reasons and others who support Miers are more compelling than those who appose Miers before the hearings. I have a feeling she will be as cool as Justice Roberts. After all, she prepared him for the hearings, didn't she?

SkyePuppy said...

Jeremy,

You're right about the timing of the hearings ("The hearings are a time when Senators should be able to present the nominees with criticisms and oppositions of the nominee and ask the nominee to address those concerns.") and that waiting until after the hearings would be too late.

My point with my statement was that the critics didn't seem to wait AT ALL. They were disappointed and looked for reasons to oppose her, rather than considering what she brings to the Court.

As to her past silence on issues and her predicted silence on those issues during the hearings, that's going to be the case for most nominees. It's the lesson learned from the Robert Bork hearings: If you aspire to the Supreme Court, say and write absolutely nothing controversial on any topic. That way, they can't "bork" you. Harriet Miers learned that lesson extremely well.

Which brings us to the real question: Do you trust the President's judgment on judicial nominees or not?

Anonymous said...

On critical social issues, interpretation of the Commerce Clause, and a host of other issues, yes, the Constitution is "easy." However, there will doubtless be cases involving telecommunications, antitrust interpretations, and other much more complex issues that will require a John Roberts intellect to perform satisfactorily. It's not just the way they'll vote, it's the competency of their thinking.

Chris / Salt Lake City

deignan said...

Fred Barnes writes this: The nominee you know

I read it. It is not endorsement or even a statement of support.

He writes:

"She'd better be able to do this. If she can't--if she's not really a conservative--the political effect will be to shatter President Bush's still-strong relationship with his base."

I don't see how Hugh can read that as support. This brings up the question using your own rationale, if someone is not telling you the straight scoop, who do you trust?

BTW, the Miers supporters and the WH were caught in yet another lie today.

So, who do you trust?

The Hedgehog said...

Deignan: You say "the Miers supporters and the WH were caught in yet another lie today." That's a pretty audacious statement to make without elaborating at all. What was the lie, and why it is "yet another?"

Chris: What evidence do you have that Miers' "thinking" lacks "competency?" The burden of proof is on you, since there is plenty of evidence that she is very bright.

The Miers opponents haven't got an intellectual leg to stand on. Raise concerns? Yes. Insist that your senators address those concerns? Yes again. But ask for her nomination to be withdrawn, or oppose it outright, before hearings have even been held? There is no basis for doing so, other than your anger over who she is not, namely one of the conservative legal titans anointed by the conservative intelligentsia pre-nomination. Anger is not a conservative principle, nor a basis for important decisions like this, as I note at http://hedgehogcentral.blogspot.com/2005/10/is-president-required-to-cater-to-his.html

Lowell Brown

deignan said...

The proof is pretty clear and well documented: How do we know that Miers is pro-Roe (see update) and Having it both ways on Miers

Sam Skyfield said...

I went through the same process "Hewitt v. NRO, Laura etc." and finally sided with Hewitt, simply based on factual arguments instead of emoting.
See this site for a light-hearted view
http://driftwoodusa.blogspot.com/

Monday, October 10, 2005

Chief Justice Roberts holds moot court on Hewitt v. The Corner case
Washington DC (October 10, 2005) – Based on an urgent and personal request from President Bush yesterday, Chief Justice Roberts has agreed to hold an emergency mood court on the “Hewitt v. The Corner” case. This is about the raging, take-no-prisoner battle inside the conservative blogosphere on Harriet Miers, President Bush’s Supreme Court nominee, which seems to significantly increase the Democrats chance for a mid-term victory in 2006. With Chief Justice Roberts’ help, President Bush hopes to avert the potential disaster for the Republican party in the 2006 and 2008 elections.On one side, Mr. Hugh Hewitt, one of the leading conservative lawyer-professor-journalist-blogger, defends the Miers nomination, mainly based on “Ms. Miers’s qualification” and his trust in “President Bush’s judicial nomination track record.” On the other side, The Corner challenges exactly the same “qualification” and Ms. Miers’ crony closeness to President Bush. Mr. Hewitt’s case is supported by the Locke Liddell & Sapp law firm and the Texas Lottery Commission. Joining The Corner case are Messrs. Bill Kristol, the elitist chief neocon at The Weekly Standard, Arthur Sulzberger Jr. of the New York Times and Dr. Charles Krauthammer of the Washington Post. According CBS News this morning, Mr. Markos Moulitas of DailyKos, the well-known left-wing constitutional scholar, has also filed an amicus curiae, “friend of the court” brief, on behalf of The Corner. This event will take place at the George Washington University Law School, Lerner Hall, on Thursday October 13, 2005 and is open to the public.

Ben said...

Whatever your position on the Miers nomination, I hope you will enjoy a little comic relief that I came up with earlier this week. It's called "Swing Roe, Sweet Harriet".

Sometimes you just have to laugh.

"Foghorn" Ross Gubser said...

Skye, As a retired pilot, USAF and UAL, I belileve that you are spot on.... All of us, conservatives, need to shut up in public, write our senators, and pray for Ms Miers and the President. Courage under fire marks strong people, and I believe that President Bush meets that criteria and it looks like Ms Miers is in that same mould.

DC said...

So, in other words, shut up and trust the President. It's a little more complicated than that, I'm afraid.

deignan said...

Public debate marks a democracy and censorship marks a dictatorship.

SkyePuppy said...

Deignan,

"Public debate marks a democracy and censorship marks a dictatorship."

I don't get how you're applying this statement to the Miers debate.

deignan said...

In reference to Foghorn's conception of courage.

In my opinion, courage leaders do not attempt to silence criticism--they trive on the challenge to be better because they put themselves in service to something greater.

The WordSmith from Nantucket said...

When Laura started talking about the Miers nomination, she quoted John Fund, Bill Kristol, and other opponents of Miers. But she didn't mention Fred Barnes, Hugh Hewitt, Ken Starr, or Jay Sekulow, all of whom support the Miers nomination.

I remember listening to her one morning boldy saying all of the consequential big league conservative voices were in opposition to Miers. Meanwhile I thought, it odd that she would fail to mention brilliant conservative opinions, the likes of Hugh Hewitt. I too have been listening to both sides, and I'm with Hewitt and the Miers supporters. Those objecting to her nomination are beginning to sound a little too....moonbatty.

SkyePuppy said...

Deignan,

Forgive me, but it's shortly after 6am and I haven't had caffeine and I don't do ambiguity well under that kind of harsh condition.

Who is trying to stifle debate? It's only censorship when the authorities impose it on the regular folks. Is the White House somehow trying to shut down the debate?

If you're referring to Foghorn's or my request for the critics to shut up and let the process work, that's not censorship. That's just more debate. That's saying, "Enough already! We heard you. Quit repeating yourself."

wisernow said...

I too was sadly disgusted with Laura Ingraham's constant whining about Miers. "Give the woman a chance to speak!" was what I was yelling at my radio. I can definitely see both sides, but Hugh Hewitt's defense seemed more friendly to his intellectual opponents, more respectful and good humored. Even though Laura Ingraham has told people to respectfully disagree (when appropriate) with a president she truly respects, this Miers thing has brought out an elist snobbery in her that contradicts what she preaches. Constantly assailing Harriet Miers as not being good enough is not good enough for me. And it truly does seem quite elitist to me when only Constitutional 'experts' are allowed consideration for the court. Laura didn't get her way and she'll make everyone pay. "Laura wake up: you are losing some of your long time listeners with the rant against Miers -- not all of you listeners agree with you -- and thats okay."

deignan said...

SkyePupp,

Please see the comment above by Foghorn.

Anonymous said...

There's a big problem with your conclusion. The constitution may not be complex, but the case law built upon it is. The many cases to come before the Supreme Court are all intertwined with precedents and case law that need to be sorted out. In order to reverse the history of precedents in some cases, uphold precedents in other cases, while ever setting new, hopefully solid, precedents with every decision, one needs a particular kind of smarts and training that Miers has not had. Being qualified to interpret the raw Constitution is not enough. If we expect her to undo any of the subtle casuistic "scholarly" reasoning in which the courts have indulged, she HAS to be able to understand that reasoning in order to refute it--and it's usually very complex and tricky because there is such a volume of cases and varying philosophies that come to bear on every issue. She HAS to be able to articulate why her reasoning is superior to the precedents that (we hope) she'll overthrow. And the ability to do so goes hand in hand with two things: first, a seasoned commitment to a philosophy of law--a jurisprudence of principles that Miers has only contradicted or been silent upon in her career, and only upheld in the slightest and most vague manner in her acceptance speech for this nomination. Second, a breadth of knowledge of the case law precedents that come to bear on the case at hand; which she does not have at present. On this second issue, she can be aided by interns and other assistants, but her personality and skill in being a hands-on perfectionist will frustrate her, the Court, and likely the USA, to no end. She has never let paperwork proceed out from her office unless everything was CYA perfect down to the grammar and punctuation. With her inexperience, the amount of time it would take to get there will be extraordinary. For these very reasons, O'Conner said it took her about four or five years for her to get up to speed on the SCOTUS, even with her experience as a judge. For Miers, she'd be up to speed in six or seven years, and that's crazy; especially since no one knows, not even Miers herself, what very specific principles she will be applying to the law. Remember that even Ginsberg promised "not to legislate from the bench." Anyone can say, "I won't make laws, but only interpret them," but it takes known experience to figure out exactly what it means for each person who says that.

I was spouting Miers' benefits before Hugh Hewitt, took a wait and see approach once the nomination was public, then became negative after the White House repeatedly failed to back the pick with any solid information. The country will be better off if Miers resigns.

Anonymous said...

I couldn't agree more with the most recent comment. All this talk about constitutional law being easy is flat wrong. Sure, the Constitution is short and quickly read. So what? "Cruel and unusual punishment," "due process of law," "freedom of speech," and "unreasonable search and seizure" are short phrases, but do you know exactly what they mean for a specific case just by reading the Constitution? Of course not.

To say nothing about issues of federal jurisdiction, which arise far more often and are quite possibly more important. Conservatives need a justice capable of matching wits with a Breyer or Souter. Miers isn't it.

Selected Pete said...

Agree - I just had to keep my mouth shut on this one for a while before I warmed to the idea - mainly because of elitist detractors. I keep hearing about someone who must be able to match wits with Souter , ad nausea, but none of us arm-chair warriors knows her wit like the pres. does. Wit isn't measured on a resume somewhere. I do believe the nom power of the president is an extension of his constituents, but come on, people...

terrye said...

I agree with Skye here.

I am beginning to think that when conservative pundits say the president deserves his nominee and the nominee deserves an up or down vote, they should add something like: when we like the nominee.

When they say they do not want legislation from the bench, they should add unless people who think like us are doing the legislating.

I say let the woman speak and as for the people who say the Constitution is hard...maybe that is because too many intellectuals made it that way.

Perhaps it is time we had a break from the scholars.

SurfWired said...

Personally, I fail to see where explaining the superiority of one's originalist reasoning accomplishes anything on the SCOTUS bench. Has Scalia changed Ginsburg's mind?

Don't mistake the actions of the Court for legal scholarship. It's not about persuasion; it's about votes.

A random aside: I'm personally pro-choice -- from a rights perspective, not one of personal preference -- but legally anti-Roe. Just for those who forgot that's possible... :-)

Jeremy said...

Skye Puppy asks:
"Which brings us to the real question: Do you trust the President's judgment on judicial nominees or not?"

The short answer is no. I don't know why anyone would in this case. While Bush's Federal Courts of Appeals nominees have been very good, they were selected by a wholly different process than the process used to select Harriet Miers.

John Fund has written on this extensively, and his work is worth reading. Nearly all of Bush's appellate nominees were apparently chosen by Tim Flanigan. The Miers nomination has been handled in a completely different way; she was apparently suggested by Andy Card and vetted by one of her underlings at the White House Counsel's office.

The good nominees were the product of a selection process that put a premium on conservative jurisprudence, Federalist Society membership, and demonstrated intelligence. The process that selected Harriet Miers apparently emphasized none of those things. Like it or not, the main reasons she was nominated are (1) she is a woman (2) who is good friends with the President.

She's supported gay rights, tax increases, has never apparently discussed Roe v. Wade with anyone, dislikes the Federalist Society, loves the ABA, and thinks the NAACP is a neutral organization. The question is not whether I trust the President. The question is how "conservatives" can ignore an enormous amount of evidence that Harriet Miers will very likely be an O'Connor-esque moderate.

believerthinker said...

Hey there Skye Puppy! Congrats on your great post and Hugh's link to it. I'm about to link to it too on http://brelevant.blogspot.com. Great being with you at GodBlogCon. God bless!

Anonymous said...

Chris/anonymous said the following:
On critical social issues, interpretation of the Commerce Clause, and a host of other issues, yes, the Constitution is "easy." However, there will doubtless be cases involving telecommunications, antitrust interpretations, and other much more complex issues that will require a John Roberts intellect to perform satisfactorily. It's not just the way they'll vote, it's the competency of their thinking."

Wrong, wrong, wrong!!!! These issues, not addressed by the constitution, should not be addressed by the courts. Therefore they are properly decided by the legislatures. If it is too complicated for a mind such as Miers, they are too complicated for teh courts in general.

Anonymous said...

This is a great post. Just last week I wrote Laura an email complaining about her conduct. I spent a good half hour criticizing her for stating the Miers doesn't have the "chops". She sounded eerily like a leftie. I'm glad I'm not the only one turning Laura off. I'll go back to sports radio until this matter passes.

Major Mike said...

Skye...nice post. Up the comment stream a bit (DC and deignan)...I haven't seen anywhere where the discussion is being stifled...so no reason to get a bit self-righteous. I think the question becomes...at what point is the dicsussion driving the process rather than the facts contained within the discussion? Right now the discussion is actually being framed by the sheer frenzy of the discussion...to date, no overpowering "facts" have come to light to sway me from my original thought, which is ...give the woman her time in front of the Senate...THEN make up your mind. Don't simply sink her under the weight of the MSM and blogoshpere traffic.

Pauli said...

My wife and I both agree with Skye and Hugh (and Bush) on the Miers nomination. Laura, we love you, our 3-year old knows what a "But Monkey" is, but you are stubbornly wrong on this one.

I've never seen 100% eye-to-eye with Laura although I have a lot in common with her. I'm a Catholic convert, about the same age, have the same caustic sense of humor and love the same kind of music. "Shut up and Sing" is brilliant. But without fail my eyes begin to glaze over during her long segments focusing on the problem of illegal immigration - sorry, it's just tedious, Laura.

In passing the other day, Hugh referred to himself, Bennett, Medved and Prager as "the 4-horsemen of the non-apocalypse". This was in response to some changes at beyondthenews.com. A little bit of a humorous phrase, kind of clumsy and not intended to stick, still it summed up to me the mature understanding of what conservatives need to do at this point. Get behind the President and the nomination, stay the course, don't complain that the party is cracking up, cracking down or whatever the Pat Buchanan goofballs are claiming.

deignan said...

Does anyone here remember Bush v Gore?

McCain Feingold?

Is it not apparent that out constitutional construction was based on checks and balances? Yet, here we have a president that says he swears by "strict constructionalism" yet goes out of his way to appoint a person to the highest court in the land--a co-equal branch--that is a committed devotee.

All of you should be concerned about that. And frankly, it is not sufficient to argue that this or that is politically expedient. Either the President, who has sworn an oath to preserve and protect the Constitution, will be bound by that oath or he is a villian.

There really is no room for "beneficial cronyism" here.

BTW, McCain-Feingold is censorship.

Aaron Matthew said...

Skye,

While I support your choice in supporting Miers; you are entirely wrong in your characterization of Laura Ingraham.

First, in the last two weeks, she has interviewed: Fred Barnes, Jay Sekulow, Dick Morris and a host of other people who support president Bush's decision to support Miers.

Second, she has read columns by many people in support of Miers, including that excellent piece by Matthew Scully last week in the NYTimes.

Third, she is against the nomination. She is not a news person. She made up her mind that she did not support this nomination and therefore will tailor her program thusly.

However, to characterize her as never given fair amount of time to people who support Miers is ridiculous and unfair.

Anselm's Apprentice said...

Thanks for sharing your decision. I'm pretty impressed with the overall process of this intra-movement debate. Having watched what passes for "debate" over at DailyKos or the Democratic Underground, I'm more and more happy to be on the conservative side of the fence. There's room for principled disagreement over here, which can be discussed without making permanent enemies (usually).

As a baby blogger, I'm especially intrigued by the degree to which the right side of the blogosphere (East Pajamastan, I think) is working through this. I admire the seriousness and civility in this debate. I note the frequent references to actual evidence and applaud the rarity of the lapses into ad hominems and/or profanity.

So here's to this small piece of the world in which passion and reason can still coexist--and thank you for your contribution to it!

SkyePuppy said...

Aaron,

You must be driving at a different time than I am, because I really haven't heard these pro-Miers people on her show. Today, she promoted and talked about John Fund's latest article, but I didn't hear much of that discussion, because I arrived at work.

terrye said...

Jeremy:

Bush has made 243 appointments to the bench and I am supposed to think he woke up one morning and forgot how to do it because you and your anti Miers friends say so.

Why? I don't know you. I did not vote for you. I don't like Coulter and Will and I am tired of people telling me that the Bush does not have the right to do what the constitution plainly states he has the right to do: name a nominee. It does not say the pundits or anyone other than the Senate has to like it.

If you are so enamored with the Constitution, you should have more respect for what it does and does not say.

Anonymous said...

I've been a faithful Laura listener for over a year, but since she's been on this anti-Miers tear, I've changed the channel. After the first day, it got old hearing the same rant over and again. Today, I listened to sports radio and basked in the glow of victories by by two favorite teams (the Broncos and any team that beats the Raiders*). It was much more pleanant than listening to Laura rant on for the third consecutive week. I'll try tuning back after the Miers hearings, but not until.

*The Raiders an the embodiment of evil. Beating them is a moral imperative. ;}

Jeremy said...

Terrye,

You wrote:
Bush has made 243 appointments to the bench and I am supposed to think he woke up one morning and forgot how to do it because you and your anti Miers friends say so.

My response:
The vast majority of those appointments were of federal trial court judges. I have no idea whether most of them are conservatives or not, and, I suspect, neither do you. Bush has nominated excellent appellate court judges because of Tim Flanigan and the Federalist Society types in the Administration. Miers was selected through a completely different process.

You wrote:
I don't like Coulter and Will and I am tired of people telling me that the Bush does not have the right to do what the constitution plainly states he has the right to do: name a nominee. It does not say the pundits or anyone other than the Senate has to like it.

My response:
If there's an argument in here, I can't find it. I have never disputed that George W. Bush has the constitutional authority to nominate anyone he likes to the Supreme Court. I think his nomination was a serious mistake that jeopardizes conservative goals, and I have every right to say so.

You write:
If you are so enamored with the Constitution, you should have more respect for what it does and does not say.

My response:
Your vacuous suggestion that I have no respect for the Constitution clearly demonstrates a real, systemic problem with your side of the debate so far. Many of the pro-Miers forces engage in name-calling and ad hominem instead of intellectually serious refutations of the anti-Miers arguments. It's sad and it needs to stop.

It does not escape my notice that you have completely failed to refute a single one of my substantive points.

The Ancient Mariner said...

Two points. First, as has been widely pointed out, Harriet Miers in fact had a hand in all the President's judicial appointments; what share of the credit for them she deserves, I don't know, but she clearly deserves some.

Second, what has actually been demonstrated above is not that constitutional law is all that complicated and challenging, but that case law is--and for that, just take a look at the woman's record! So what if the cases she's argued haven't been before SCOTUS or federal appeals courts; they've involved some of the most "complex and tricky" concepts and areas in American case law, and she's handled all of them superbly. You can't fairly criticize her ability to handle the complexity of American case law when doing just that has been the foundation of her excellent legal career. (It also seems a bit rich to argue that she doesn't have the necessary command of detail to do so when she has had the command of detail to "never let paperwork proceed out from her office unless everything was CYA perfect down to the grammar and punctuation.")

As for the O'Connor reference--she was a better judge before she "got up to speed."

And finally, if things have come to the pass that one must have the brilliance of a John Roberts to be able to be a good SCOTUS AJ, we might as well throw in the towel, 'cause the Republic is doomed.

Stephen said...

Like nearly everyone else I was disappointed when I heard Harriet Miers' name announced for SCOTUS. I would have preferred Luttig, McConnell, Rogers Brown, Alito in the first tier, Karen Williams or Diane Sykes in the second tier.

But my wishes also took into account the weakness of the Gang of 14, the unlikelihood of breaking a filibuster, the odious necessity of a gender pick, and the fact that Harry Reid was basically conceding the pot to the President. This last point was similar to Senator Hatch conceding the pot to President Clinton on Ginzburg.

Having followed the pre-selection debate on many conservative blogs I also noted that there was SOMEONE who objected to EVERY potential nominee for one reason or other. Luttig was not a declared anti-Roe Judge. McConnell was too academic and might favor bigamy and same sex marriage. Rogers Brown was too libertarian. Williams was too unknown. Sykes had been divorced.

In other words, there was someone on the conservative side who had reason to oppose each and every one of the candidates whom they now prefer to Miers.

What are we doing to ourselves. Many previously reasonable and well-reasoned conservative blog sites are looking more and more like conservative versions of The Daily Kos.

Yes, I wish a great scholar/judge like Luttig had been nominated. I agree that a Supreme Court Justice can provice more than just a reliable vote -- they can provide the underlying reasoning and argumentation to change the minds of other Justices, of a generation of young law students, and of the American people.

But I do not buy the argument that a non-judge background disqualifies someone for SCOTUS. In fact, I am persuaded that experience in the practical world would be helpful on a court that lives in the zone of theoretical rather than practical thinking.

But most of all I don't want us to morph into the mirror image of dKos.

Yes, I do think that President Bush deserves to be trusted on this matter. Mindful of the Souters and Kennedys (and to some extent O'Connors) of the past, people are understandably allergic to someone as stealthy as Miers. But Bush 43 is not Bush 41.

Two more points. First, Roe is not the only important issue that SCOTUS will address. Kelo, the fate of the internet, other aspects of privacy, the GWOT, and others are no less important.

Second, vigorous respectful differences of opinion strengthen the Republican Party and conservatism in general. But the Miers case is verging toward crossing into fratricidal territory.

Jeremy said...

Ancient Mariner,

I think it's very questionable what, if any, input Harriet Miers had in the vast majority of George W. Bush's judicial nominations.

See:
http://blogwhatnow.blogspot.com/2005/10/should-miers-get-credit-for-bushs.html

The Sanity Inspector said...

Bush didn't have to nominate a stealth candidate. He could have picked one of the many excellent conservative judges out there. There's no way Miers is the best available candidate, and I don't appreciate being called a sexist elitist for demanding someone with proven ability.

The Sanity Inspector said...

BTW, congrats on the Hewittlanche.

zeppenwolf said...

Welcome to the light* side (of the force)!

*Say, we all know that the side of evil is "the dark side", but was the other side actually ever named? It might be "the light side", "the bright side", etc. Ever notice that? (/aside)

Excuse me while I pat myself-- unlike many, it took me less than 24 to be convinced that Hugh "finger on the pulse" Hewitt was right.

( Again! )

It comes down to this: Has W done us right so far viz judiciary? Yes or no?

sanity inspector: "Bush didn't have to nominate a stealth candidate. He could have picked one of the many excellent conservative judges out there."

Assuming, of course, that you have all the same information that W and Rove do.

Sorry if I doubt you, but... I doubt you.

deignan:" Does anyone here remember Bush v Gore?

McCain Feingold?"

Yes, and yes, and yes to other following rhetorical questions that seem to have no relevant point whatsoever.

anonymous: "If we expect her to undo any of the subtle casuistic [Wow!] "scholarly" reasoning in which the courts have indulged, she HAS to be able to understand that reasoning in order to refute it"

No, she doesn't, and for that matter, neither do I: "Where in the &^#&*@# do you see a right to abortion in there?!? It just ain't there, period". See? That wasn't so difficult, was it? The kind of hyper-nuanced elitist justification you're enamored of, (the kind useful for extending the power of the SCOTUS, by the way), that is exactly what we're sick of, and it's time for the "common sense" judicial restraint bias of the unwashed masses to have their turn.

"Only an educated person could say something so... stupid."-- Dennis Prager

anonymous: "All this talk about constitutional law being easy is flat wrong. Sure, the Constitution is short and quickly read. So what? "Cruel and unusual punishment," "due process of law," "freedom of speech," and "unreasonable search and seizure" are short phrases..."

That you think Con Law is difficult I can definitely believe. What you miss is that the "definition" of "cruel and unusual punishment" is exactly the kind of thing which should be decided by the people, (id est, legislatures), not by Justice Kennedy and his friends in Fr*nce.

Bah! That's enough for one post...

Well done, "SkyeWalker"!

Jeremy said...

zeppenwolf said:
It comes down to this: Has W done us right so far viz judiciary? Yes or no?

Why? Suppose instead of Miers, Bush had nominated Gonzalez? Would you have supported Gonzalez "[because W has] done us right so far viz judiciary?" Again I make the point that the selection process for Harriet Miers was dramatically different from the process used to select Bush's other nominees to this point.

zeppenwolf said:
"Where in the &^#&*@# do you see a right to abortion in there?!? It just ain't there, period". See? That wasn't so difficult, was it? The kind of hyper-nuanced elitist justification you're enamored of, (the kind useful for extending the power of the SCOTUS, by the way), that is exactly what we're sick of, and it's time for the "common sense" judicial restraint bias of the unwashed masses to have their turn.

Sorry zeppenwolf, but if you want the reversal of Roe v. Wade to stick, and not itself be reversed, the reversal needs to make legal sense. Stating in a conclusory way that "that's just not in there" does not suffice for legal reasoning, even for strict constructionists. I want a justice who can ably articulate the reasons that Roe and Griswold were wrongly decided. Otherwise, the overturn of those decisions will leave conservatives in a very bad spot politically. It will give the nation the impression that we're "legislating from the bench," and whatever progress we make will be short-lived.

zeppenwolf said:
That you think Con Law is difficult I can definitely believe.

This is just an insulting and all-too-typical remark coming from the pro-Miers side. It has no place in this debate.

Constitutional law is a very difficult subject. zeppenwolf, since you're so quick to insult others' knowledge of constitutional law, I wonder if you might present us with your own qualifications on the subject?

terrye said...

Jeremy:

My side???

That is the whole damn point. There should not be sides.

The constitution makes it plain that the president makes this call.

The founding fathers did not make this a decision to be made by ballot box, not directly anyway. So there is nothing vacuous about noting your lack of respect for the system.

As far as "attacks" are concerned, within one day of this nomination Harriet Miers was attacked with some of the most vicious and unjustified malice I have ever seen directed at a anominee. I was ashamed of and for a lot of people.

In truth some consevatives sound hysterical and their willingness to prejudge this candidate just because she wasn't on their list of dream nominees is unfair to her and disrepectful of the system.


As for whether or not there were better candidates, that remains to be seen.

I say let the woman speak. If she is as unqualified as her attackers say she is, that will be evident.

I guess some people don't want to give her that oppurtunity. As far as they are concerned the president is supposed to do their bidding and to hell with his own judgment.

terrye said...

BTW the Griswold decision that was used as a basis for Roe V Wade was a sound decision.

How dare I say that?

Because the case was not about abortion. It was about the right of married people in Conneticutt to use birth control.

This is where common sense got thrown out and the scholars took over.

The intellectuals on the court used that as a basis for deciding the right to privacy.

Now, does any of us want to see people restricted by the state in regards to the use of birth control in marriage?

Jeremy said...

Terrye,

I'm not sure what your argument is. You state:
The constitution makes it plain that the president makes this call.

Again, have I disputed the right of President Bush to nominate Miers or anyone else? Of course not! The President may nominate anyone he likes. I have said that he made a mistake when he nominated Miers and that he should withdraw the nomination. George W. Bush is not a king, and I have every right to disagree with one of his decisions and publicly call on him to change his mind on an issue. This is not a "lack of respect for the system"; it's an exercise of my First Amendment right to state my disagreement with the actions of my President.

Your suggestion that my opposition to a Supreme Court nominee demonstrates a lack of respect for the Constitution on my part is utterly nonsensical.

Terrye wrote:
As far as they are concerned the president is supposed to do their bidding and to hell with his own judgment.

Any politician who wants my support had better generally make the decisions that I want made. There is some room for him to exercise his own judgment, of course, but if his judgment begins to seriously conflict with my judgment, I won't support him anymore. Is that not the essence of politics?

The President is generally entitled to do as he pleases. George W. Bush could, tomorrow, switch parties and become a Democrat. He could advocate a nationwide euthanasia law. There are many things the President has the power, authority, and ability to do.

But if the President wants the political support of conservatives in this country, he should do things that please them, and avoid doing things that irritate them. George W. Bush has done many things that have irritated conservatives, and, frankly, few things that have pleased them. You suggest that it's inappropriate to withdraw political support from a politican who no longer lives up to expectations. Like your other claim, this is, self-evidently, nonsense.

Jeremy said...

terrye,

With respect to Griswold, you're just wrong. You state:

BTW the Griswold decision that was used as a basis for Roe V Wade was a sound decision. How dare I say that? Because the case was not about abortion. It was about the right of married people in Conneticutt to use birth control.

There's simply no right to use birth control in the Constitution. It's just not there. I briefly wondered how someone who is supposedly conservative could believe Griswold was rightly decided, until I read your last paragraph:

Now, does any of us want to see people restricted by the state in regards to the use of birth control in marriage?

That's an irrelevant question in this context. It makes clear that you are purely result-oriented, and your concern is not with the proper interpretation of the Constitution but with the Supreme Court reaching outcomes you favor.

You don't like Roe because you don't like abortion. You do like Griswold because you do like birth control. It doesn't surprise me that you favor Miers; you are either not a conservative or you don't understand the concept of conservative jurisprudence.

CapZap said...

Maybe I'm too straightline loyal, but I accepted the appointment from day one. I was surprised to find that the bloggers I read most regularly, Hugh and Jack Kelly at Irish Pennants, agreed with me.

We'll all know who was right ten years from now, won't we?

Geochem said...

For years we waited for an evangelical to be nominated to the Supreme Court. We voted for Bush because he publically announces faith in Christ. Finally, a woman with apparent strong Christian Faith is nominated. She is supported by those we trust including Dobson and Colson. They are more my voice than Laura Ingram or the talk news pundits. Isn't Harriet Miers just the person we want on the court when decisions on school prayer, ten commandment displays, right to life, etc, etc cases are heard?

SkyePuppy said...

CapZap,

Ten years from now we'll know about both Miers and Roberts. It'll be interesting to compare votes and see who stayed with an originalist approach and who (if any) "grew" on the bench.

The whole nomination/confirmation process feels too much like jumping off the high dive into a pool: You know you'll hit water, but you don't know if it will hurt when you do. In the end, even a Luttig or McConnell is still a leap of faith.

terrye said...

jeremy:

I am wrong???

Puhleaze...

There is nothing in the Constitution which says the state has the right to decide if I can use birth control either. I do have a right to be secure in my person. I guess that is open to interpretation is it not?

Maybe I don't want you making that decision for me.

In fact there is nothing in the Constititution which says abortion is illegal for that matter.

For that matter there is nothing in the Constitution that says I can not buy and sell people but we settled that one did we not?

My point is that the justices took a leap with Roe V Wade and we have been fighting this every since.

But I can also tell you this, if the American people thought for one minute that overturning Roe V Wade would open the flood gates to all kinds of changes that would intrude on private family and health decisions the Republicans might be very sorry they ever made it an issue.

I certainly do not want my 14 year old getting an abortion without anyone notifying me, but at the same time I find the condescending and patronizing attitude of a lot of Supreme Court groupies to be very irritating.

Just let the woman speak and let the process work the way the framers of the Constitution intended.

terrye said...

Jeremy:

And while we are on the subject of who gets whose support.

I am one of the 62 million people that voted for Bush. I am not some flaming liberal either.

I resent the idea that certain people seem to think they can speak for all conservatives.

What about the rest of us? Don't we count? Are we too moderate for the pure people?

Well truth be told the pure people could not elect a president without a few heathen centrists tagging along so I guess you guys will just have to accept the fact that if not for people such as myself you would be waiting to find out how John Kerry's nominee would fare in the hearings.

Don said...

Keep it up Skye. I think the others have gone to the elites.

DJinDenver said...

Skye, I think your right on. I hope Laura read this and comments on it tomorrow. I also hope the NRO elites catch a little too.

Jeremy and deignan you've been sucked in by the elites, sorry.

Dave said...

Here's how any SCOTUS case should go. Regardless of case law, precedent, etc:

1) If there is a claim of a Constitutional issue, does the issue claimed actually apply? (IE, First Amendment Case: Does it deal with the GOVERNMENT restricting free speech or association? If not, certiori denied.)

2) Granted a Constitutional Issue and we decide to hear the case, does a plain-text reading of the Constitution, with no consideration to past cases, give us an answer? If so, ta-da! There's your judgement.

If not, then and only then does Precedent get considered.

3) If a Law or Treaty violates the Constitution, we tell the relevant bodies so. We do not say, "... therefore this is what you will do". We merely say, "Such-and-such actions against so-and-so were wrong. (Optional: We suggest you do such-and-such to compensate them, and) [M]ake your law compliant with the Constitution. We will not tell you how or give you a time limit."

That's the way the Court should work. A layman's reading of the Constitution would have it, I submit, that it is how the Court MUST work to, itself, be Constitutional in its actions.

If you disagree, can you give me a Constitutional reasoning as to why not?

Jeremy said...

Dave,

You suggest that precedent should not be considered if a constitutional issue can be satisfactorily answered by nothing other than recourse to the plain meaning of the text.

I disagree with your suggested process for judgment, but I agree with the outcome. (That is, I agree that if a question can be answered by the plain text of the Constitution, that's how it should be answered.)

But the notion that courts should not even look at on-point precedent is simply not in keeping with the American common law traditions against which the Constitution was framed.

It's quite clear that the framers intended us to continue to use the common law system developed in England prior to the founding. Many states, for example, have reception statutes, bringing in the whole of the English common law prior to a certain date and adopting it as the common law of the state. The U.S. Constitution does this in the Seventh Amendment, for example, with respect to judicial re-examination of jury-found facts.

The common law tradition is certainly to consider precedent, though volumes have been written on when the common law tradition requires precedent to be followed if the judges in question think the precedent is wrong. This is the stare decisis question. I prefer a Justice Thomas approach to stare decisis, and I bet you do to.

Your suggestion that courts have no inherent power to order compliance with their rulings is just wrong. Courts in the United States have, from the get go, had the power to issue orders and writs; again, this is derived from common law but embodied in the Constitution. This is what Article III of the Constitution is talking about when it talks about "the judicial Power of the United States."


Terrye,

You do not (or, at least, should not) have a right to be "secure in your person." The Fourth Amendment states that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." When the State of Connecticut tells a doctor he cannot sell you birth control pills, that is neither an unreasonable search of your person nor an unreasonable seizure of your effects. It's a trade regulation, a health regulation, and a declaration of certain items to be contraband. States had all of these powers at the framing and still do.

I note with interest that you refer to yourself as a "centrist" in your last post. This doesn't surprise me and explains why you support Miers. You're right to support her; we have every reason to believe Miers will be a "centrist" just like you. That's why so many of us are opposed.

President Bush told us he would nominate strict constructionists in the mold of Scalia and Thomas, not squishy "centrists" in the mold of O'Connor and Kennedy.

terrye said...

Jeremy:

So do the conservatives know you are their spokeman? The the unsullied who disagree with you are not really conservative enough? Do you have a conservative litmus test to weed out the imposters such as myself.

I am center right, as far as my liberal brother is concerned I am a raving right winger. Can't win for losing.

There are conservatives from Newt Gingrich to Hugh Hewitt who support the president's decision.

But it will come as good news to Democrats to know that Republicans really want to control whether or not every day ordinary people get to buy condoms. Because after all there is not a right to buy condoms clause in the Constitution.

My step daughter has a medical conditon that makes pregnancy dangerous for her. She uses birth control rather than having herself sterilized in the hopes that someday there will be treatment for this condition. If you force her to abstain in marriage or risk her life I would think it could be argued that you were making her unsafe in her person and since you can not be sure what she does and does not do in her home without kicking in the door and sending in the sex police I I could say you were making her unsafe in her home as well.


Yep, all those Democrats out there who have been raving about a vast right wing conspiracy would just love that.

Anonymous said...

Bush is convinced, he absolutely knows, that Harriet Miers will cancel the vote of Ruth Bader Ginsburg until one of them departs SCOTUS. What an improvement from O'Connor!

terrye said...

Harriet Miers also supported upholding the Texas sodomy law which goes back to the whole privacy issue.

That should make Jermey happy.

Jeremy said...

terrye,

You wrote:
So do the conservatives know you are their spokeman?

Yet again, you prove that you aren't capable of engaging in a civil discussion without ad hominem attacks.

You wrote:
There are conservatives from Newt Gingrich to Hugh Hewitt who support the president's decision.

Hugh Hewitt is not a conservative, he is "center-right" just like you. The conservatives who support Miers are either Administration shills or are just wrong. People are entitled to differing opinions.

You wrote:
But it will come as good news to Democrats to know that Republicans really want to control whether or not every day ordinary people get to buy condoms.

It's obvious you are only vaguely familiar with the issues related to Griswold or with right-to-privacy jurisprudence generally.

I don't believe birth control should be illegal as a policy matter. You agree with me on that point, as your irrelevant story about your daughter makes clear. None of that is even slightly pertinent, however, to the question of whether the Constitution provides a right to buy condoms.

You, like many Miers supporters, have a very poor grasp of the judicial issues at stake. You have, more than once, argued that my opposition to Griswold means I am opposed to birth control. This is the stupidity of the left, not the "center-right." A judge's policy preferences related to the outcome of a case have absolutely nothing to do with how the judge should rule in that case. That is the very essence of conservative jurisprudence, and it's something you've made clear you don't agree with.

You are a "centrist" who prefers activist judges who rule based on their personal policy preferences as opposed to the text of the Constitution. Again, it does not surprise me that you support Miers. She's your kinda gal.

terrye said...

jeremy:

You call me stupid and then you complain about how people treat you.


I do not want activist judges, left or right. I think this is where we disagree. It seems to me that certain people want activist judges, just so long as they are the right kind of activists.

Griswold v Conneticut was about birth control. In fact it was about birth control in marriage.

First there was an attempt to turn over the state law in Poe v Ullman claiming the law deprived the plaintiff of due process. The case failed on the grounds that the law had not been enforced in years.

Then Estelle Griswold opened a birth control clinic and began to dispense birth control. She was arrested and convicted under that state law.

The conviction was overturned by the Supreme Court citing the ninth amendment: "The enumeration in the constitution of certain rights,shall not be construed to deny or desparage others retained by the people."

The court's analysis in that decision was limited to the rights of married people.

So yes, it does effect the rights of married people to obtain birth control..That was the whole point.

I am saying that by using this decision as precedent for Roe V Wade the court went too far.

Abortion is not just about privacy.

Now if you make it about privacy and claim that the state can indeed limit the ability of married people to obtain and use birth control because those people have no inherent right to privacy you will be doing your cause harm.

terrye said...

And Jeremy people who treat other people who disagree with them as if they were stupid do not help themselves, they only reinforce the idea that they are fanatical elitists so enamored with the idea of a thing that they have lost understanding of real life consequences.

terrye said...

And I don't really care if Miers is confirmed. I just think the president has the right to nominate her and the Senate should advise and consent. If they vote to not confirm and Bush nominates someone like Brown I will not cry and pout.

John in San Diego said...

When I first heard of Miers' nomination, I was like Syke and even after a week or so, did not have a firm opinion of support or dissent. Listening to everyone from Hugh to Rush to Laura to Hannity, reading numerous blogs, NRO, WSJ, and following discussion threads like this one, I was drawn back and forth from one side to the other, sometimes seemingly switching sides several times a day.

I think there may be more to the Miers pick than is being discussed in the MSM or even here. I think it highly likely that the President probably approached one or more of the other candidates on the short list, whether it be Luttig, McConnell, Rogers Brown, etc, (who are all said to be cut from the finest cloth,) and they simply rejected the President's request for nomination.

Think about it.

Look at what John Roberts and just about every other high profile nominee for any court or AG nomination has had to endure. As soon as your name is listed, the machine on the left systematically goes through every aspect of your life w/ sole intent of finding "dirt" on you. They delve into your personal life, the life of your spouse, family, co-workers, etc, leaving nothing untouched.

Being nominated for the SCOTUS is indeed the dream job for many of these other candidates, but at what personal cost?

Being the class acts that they are, the President and whichever candidate turned down the nomination would remain mum on the entire issue.

Anonymous said...

I've enjoyed reading the posts of Skye, Jeremy, Deignan and others.

From another perspective, think about this administration. While many disagree with what this administration has done, very few can successfully argue that haven't executed what they wanted to do successfully.

There is more to the Miers nomination than meets the eye I think. What that is, when it will be revealed, when hindsight becomes 20/20 is any ones guess... but my challenge to all of you is look at it in context over the past 5 years of this administration.

In short, it's too early to make a judgment on this nomination.

Another thing that has been bothering me with all of this are the talking heads of the conservative talk radio waves and the likes of NRO to be instantly spewing their opinion; it reminds me of an election about 5 years ago when the moonbats on network television were waiting hours to call states that were obviously red and instantly declaring states blue when there was still significant doubt. Back then, I was proud to hold my tongue and know that others who thought the same as me were holding theirs with the understanding that with some time and a bit of patience, the truth would be known; the questions would be answered and we wouldn't look like idiots.

Where did that go? Our great trait of patience, of proof, which was once so prevelant within the conservative movement? Let's not substitute our stability and our record of being right over having the first insta-opinion, be it right or wrong.

Anonymous said...

Do you really want a B+ candidate for such an important position? That's Hewitt's assessment, not mine.

I want the best possible candidate, not one of GWB's cronies who just happens to be pretty bright.

Anonymous said...

agreed and well stated...

even worse, i find the piling on this President way over the top...

many of these pundits, like Ingraham, have grown in the wake of the President's success leading the Nation post 9-11.

in fact, many like Ingraham will state, 'we gave him (the President) the majority, and this is how he has repaid us?'

they seem to completely forget about the recent quality Conservative choices...

RECENT CONFIRMATIONS

Judge John Roberts was confirmed as Chief Justice of the U.S. Supreme Court on September 29, 2005.

Thomas B. Griffith was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit on June 14, 2005.

Judge William H. Pryor Jr. was confirmed to the U.S. Court of Appeals for the Eleventh Circuit on June 9, 2005.

Judge Richard Allan Griffin was confirmed to the U.S. Court of Appeals for the Sixth Circuit on June 9, 2005.

Judge David McKeague was confirmed to the U.S. Court of Appeals for the Sixth Circuit on June 9, 2005.

Justice Janice Rogers Brown was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit on June 8, 2005.

Justice Priscilla Owen was confirmed to the U.S. Court of Appeals for the Fifth Circuit on May 25, 2005.

STILL PENDING IN THE U.S. SENATE

William Gerry Myers, III
First nominated to the U.S. Court of Appeals for the Ninth Circuit on May 15, 2003


they also forget his intense campaigning, expense of political capital in 2002, to gain a majority in the House and Senate.

we would not be in good shape without this President... (a Kerry nomination would be a disaster)

President Bush has served Conservative interests well, (not perfect), but better than i ever imagined... i remain thankful.

boy michael
nyc

Observer said...

A search of this page for the phrase "Affirmative Action" returned no result.

The top-level conservative blogs I read are Powerline, LittleGreenFootballs, Instapundit, Captain's Quarters, and JunkyardBlog. Several of them have reported that Miers has made statements in favor of Affirmative Action. This means Miers is NOT the "Scalia or Thomas" type Supreme Court nominee Bush promised us.

The total lack of a mention of Affirmative Action on this page indicates that no-one here is aware that Miers favors it. Now that you do know Bush has nominated an Affirmative Action supporter, do you still support putting her on the Supreme Court?
Regards,
Observer

SkyePuppy said...

Observer,

I didn't find a mention of Affirmative Action on Powerline's main page either, so I don't know what the context is.

You said, "Miers has made statements in favor of Affirmative Action." What kind of statements were they? Personal ones that someone remembers her saying? Were they her answers to the Senate Judiciary Committee questions (I haven't had a chance to read that document yet)? Did she indicate she favors it as a voluntary policy by individual corporations and universities? Or did she favor it as an imposed legal requirement?

Just saying she favors Affirmative Action is not enough for me to take a stand against her nomination.

I'm not sure I said I support her sitting on the Supreme Court (I may have, but I've gotta scram soon, so I don't have time to check right now). What I DO support is letting the nomination process continue, letting this question come out in the Committee hearings, and letting the Senators decide whether or not her position on things like Affirmative Action are alarming enough to vote against her sitting on the Court.

Observer said...

Skyepuppy, here's my answer to your questions to me about Miers And Affirmative Action.

First, pardon me for not being HTML-savvy enough to make the following URLs appear as hotlinks. I'm an oldster (volunteered and served as a Goldwater campaign-worker in back high school in 1964, been a conservative ever since).

The blog-posts I saw about Miers & Affirmative Action were posted on Oct. 9 & 10 ...so they're no longer on main-pages. Therefore I had to do a web-search to find them. Here are some URLs I found, and quotes from them.

The Oct. 9 Powerline article (titled "Affirmative Betrayal?") is at:
http://powerlineblog.com/archives/011909.php

The ProteinWisdom article (titled "Miers and Affirmative Action") is at:
http://www.proteinwisdom.com/index.php/weblog/entry/19159/

Knight-Ridder Newspapers:
http://www.realcities.com/mld/krwashington/12836996.htm
which begins with:
"In what appear to be some of her only public statements about a constitutional issue, Supreme Court nominee Harriet Miers testified in a 1990 voting rights lawsuit that the Dallas City Council had too few black and Hispanic members, and that increasing minority representation should be a goal of any change in the city's political structure."

At pointoflaw.com/supremecourt:
http://www.pointoflaw.com/supremecourt/
which is titled ("Miers on affirmative action) and says:
Don't expect her to line up with the Scalia/Thomas wing on that one.

For the most-significant info, go to:
http://www.professorbainbridge.com/2005/10/miers_and_prefe.html
for the article titled "Miers And Preferences" - which says:
"Powerline's Paul Mirengoff admits that there is evidence Harriet Miers favors the use of preferences as part of affirmative action for women and minorities, but says that's okay because so does Bush:

"Unlike most of Miers' other views, the evidence here doesn't come primarily from 15 years ago. Miers apparently supported, and perhaps helped the influence, the administration's position in the University of Michigan affirmative actions, which we strongly criticized at the time.

"It's important to remember, however, that President Bush also supports preferential affirmative action to the extent reflected in the University of Michigan briefs. In fact, the briefs tout the approach to preferences used by the Texas university system when Bush was governor (a less overt form of preference than the one the O'Connor-led Court embraced in the Michigan cases).

"Conservatives should be unhappy that Bush nominated someone who comes out on the wrong side of the affirmative action debate. But it's difficult to argue that the nomination of someone who agrees with the president's position on this issue constitutes an outrage or a betrayal. Bush never promised a nominee who agrees with every important conservative position. He promised a nominee who approaches the job the way Justices Scalia and Thomas do (and these two Justices don't agree on every substantive issue). There's no reason to believe that Bush didn't attempt to appoint such a nominee.

"This is surprisingly specious coming from the typically thoughtful Powerline folks. Where to begin? Okay, how about with the basic fact that Sandra Day O'Connor wrote the Grutter opinion, while Scalia and Thomas both dissented? With one stone Paul proves that, at least on this issue, Miers is likely to be an O'Connor clone (a point I've been making for a while now) AND that, at least on this issue, Bush broke his promise to appoint judges in the Scalia and Thomas mold.

"Second, why should Bush's support for preferences justify giving any deference to his nomination of Miers? The 2004 GOP platform expressly stated:

"... because we are opposed to discrimination, we reject preferences, quotas, and set-asides based on skin color, ethnicity, or gender, which perpetuate divisions and can lead people to question the accomplishments of successful minorities and women.

"Bush betrayed that position in Grutter. Hence, contra Paul, it is quite easy "to argue that the nomination of someone who agrees with the president's position on this issue" also constitutes "a betrayal." Indeed, as Mike Rappaport observes:

"Now it appears we have the smoking gun. ... Bush is (mis)representing her as a solid conservative, but the Administration's position on Gruter is not a conservative (or libertarian) position. ... This is very disturbing. It does appear that we are now once again facing a nomination of a David Souter or a Sandra Day O'Connor."

Regards,
Observer