I haven’t posted anything new on the Harriet Miers nomination since I formally announced my opposition to it over the weekend, but via Eric’s Grumbles Before The Grave, I am pointed to this article by Hugh Hewitt where he asks the non-Democratic opponents of the nomination a series of questions and I figured I’d take a crack at answering them for myself.
I’ll deal with each question in turn.
Does George W. Bush deserve any loyalty from his party? From pundits identified with his party? If so, how much and why not more?
Loyalty with respect to what ?
First, it is true that Bush is the de facto leader of the GOP and deserves some degree of loyalty because of that, at least from someone loyal to the GOP. That does not mean that every decision he makes deserves the unquestioning support of Republicans, or conservatives. Such blind loyalty is antithetical to the American system of government.
Second, Bush was elected on a platform and promises that set forth a series of principles. With respect to judicial appointments, he specifically said on more than one occasion that he intended to appoint judges in the mold of Antonin Scalia and Clarence Thomas, strict constructionists who would not legislate from the bench. When he appointed John Roberts to be Associate Justice and then Chief Justice, he correctly emphasized Judge Roberts’ superior academic, legal, and judicial record, all of which gave every indication that he was more than qualified for the position he had been nominated for.
With Harriet Miers, there is no judicial record to speak of and no indication of what her judicial philosophy is and her qualifications, quite frankly, appear to be lacking from the evidence we’ve seen so for. Bush’s basic response to complainants about the nomination and demands from his supporters for reassurance has been “trust me.” Given Bush’s record over the past 5 years, however, there is no reason to trust him. Government spending is growing at a rate comparable to the days of Lyndon Johnson. Despite the fact that he repeatedly stated his belief that the McCain-Feingold campaign finance law was unconstitutional, and the President signed it into law with batting an eye. Even the War on Terror, which was the main motivating factor behind my vote for Bush last year, has been executed as promised. The Patriot Act is increasing the power of police in areas that have nothing to do with terrorism. 80 year old grandmothers routinely get searched at airports. And the hunt for Osama bin Laden seems to have quieted down as the War in Iraq grinds on.
Given all of this, the idea that the President deserves a wink and a nod when he tries to appoint his personal lawyer to the nation’s highest Court is a joke.
Do Harriet Miers’ many accomplishments account for nothing ?
She appears to be a superior attorney in the areas in which she has practiced. If she were up for a position in the Justice Department, or if Bush had appointed her to be a U.S. District Court Judge, then her qualifications would not be an issue. The problem is that there is no indication in her public record, or in the material that has been released since her nomination such as the text of her Judiciary Committee questionnaire, that she is qualified to sit on the Supreme Court. In fact, some of what has been released is embarrassing to say the least. Someone who believes that there is a “proportional representation requirement” in the Equal Protection Clause to the 14th Amendment either doesn’t understand the Equal Protection Clause or doesn’t understand what “proportional representation” means. In either case, that person does not belong on the Supreme Court.
Does Harriet Miers strike the commentator as a dedicated public servant?
I guess so, but what does that matter in the context of this nomination ? Being a dedicated public servant is an important quality in a judge, but its not the most important quality. The most important quality is what philosophy that judge holds about his role in the government. Does the nominee believe herself to be designated with the role of interpreting the Constitution and laws passed by Congress as they were originally intended, or does she believe herself to be an activist with the power to create new law out of whole cloth ? Since she has no judicial or other record, we have no idea what Harriet Miers believes with respect to this issue, and it is very dangerous indeed to simply guess.
Why not wait for the hearings to at least begin?
Because it is unlikely that the hearings will reveal anything about the important things we need to know about Harriet Miers before elevating her to the Supreme Court. The answers she gives will be rehearsed and vetted by White House advisers. The questions she is asked will have been handed to the Senators by their aides, and will be read like they were a Hollywood script. At least we will be saved from the embarrassing spectacle of a 90+ year old Strom Thurmond reading the same questions again from the same note cards. Beyond that, the hearings themselves are likely to reveal nothing of substance about Harriet Miers.
The Bork and Thomas disasters have guaranteed one thing — that absolutely nothing substantive will ever again come from a Supreme Court nominee’s Judiciary Committee hearing. The Senators will try to find out how the nominee might rule on a specific issue or case, and the nominee will be deliberately vague. This is why it is so vitally important that the nominee have a record of some kind on the issues that need to be addressed — otherwise we will never know if we’re getting an Antonin Scalia or a David Souter.
How important is it that Roe v. Wade/Casey be reversed?
Important, but not vitally so in my mind. I oppose Roe and the cases that followed it not because I am anti-abortion, but because I think they were wrongly decided. The consequences of those decisions have been felt far outside the abortion debate. A justice with the proper, originalist view of the Constitution would clearly be anti-Roe, but opposition to Roe should not be the sole litmus test for picking a justice.
Which five precedents does the commentator think are in most pressing need of reversal?
1. Wickard v. Filburn and the cases that preceded it which expanded Congressional Commerce Clause powers far beyond where the Founders intended them to reach
2. Hawaii Housing Authority v. Midkiff, an eminent domain case that preceded, and set the stage for, this year’s Kelo v. City of New London, which I would also add to the list.
3. The Slaughterhouse Cases —- decided in 1873, this Supreme Court case effectively made the “privileges and immunities” clause in the 14th Amendment meaningless. There is substantial evidence for the proposition that the drafters of the 14th Amendment intended this clause to guarantee the rights set forth in the Bill of Rights to all citizens and to make those rights enforceable against the states. The Supreme Court held otherwise. The result has been a hodge-podge attempt by the Supreme Court to “incorporate” the Bill of Rights in the Equal Protection Clause of the 14th Amendment.
4. The entire line of affirmative action cases beginning with the Bakke case and ending with Grutter.
5. Griswold v. Connecticut —- the beginning of the right to privacy myth. As with Roe, this case is not on the list because I disagree with the outcome — in fact, as a libertarian I think the idea of a law restricting who a pharmacist can sell contraceptives to is absurd. From the first time I read this case in law school, though, I realized that it is perhaps one of the most badly reasoned Supreme Court opinions ever. The reason for that, of course, is that the law was being manipulated to achieve a result that the Griswold majority wanted.
Believe me, though, there are alot more than 5 case that need to be overturned if things are going to be fixed.
Does the commentator agree with George Will’s assertion of Justice Lewis Powell as the “embodiment of mainstream conservative jurisprudence?”
No, certainly not the type of jurisprudence I would favor. Powell was, perhaps, a “conservative” along the lines of Warren Burger. He was generally on the conservative side of “law and order” cases and obscenity cases, but his record indicates he really didn’t have a consistent philosophy, sort of like O’Connor now that you mention it. Powell may indeed have represented the mainstream of thought back in the 1970s and 80s, but not today.
I would like to think that Scalia is the Justice that best represents “mainstream conservative jurisprudence”, but I’m not sure if that’s correct or not. He certainly is brilliant and has a philosophy I seem to generally agree with, but its unclear how much influence he is having over other “conservative” judges.
Is a neo-Borking underway which will discredit the conservative cause’s defense of its future nominees against similar, future attacks from the left?
I’m not sure what Hewitt means by a “neo-Borking”, but I assume he means to ask if Miers being unfairly attacked.
No. Bush brought this debacle on himself when he nominated a close associate with no discernable record and told us to trust him.
What are the political consequences of a defeat of Miers at the hands of a GOP controlled Senate?
In the end, only time will tell. The President has clearly been weakened within his own party by this nomination, but he was already under fire for his obvious dismissal of fiscal conservatism as a guiding principle.
A defeat on the Miers nomination may weaken him further but that is bound to happen anyway; he is a lame duck President at a time when the economy is uncertain and the War in Iraq is, quite honestly, not going well. Add in to that the fact that his administration may have several members under indictment in the next day or two, and its not hard to see why he’s having problems. Those problems exist, however, independent of the fact that many commentators and bloggers have risen up in opposition to this nomination. In fact, the Miers debacle is just a symptom of a wider problem with the Bush Administration.
Finally, I would answer that question with another question — what are the political consequences for supporters of limited government if they continue to support a President who quite obviously does not share their philosophy ?
In addition to Eric, Dale Franks has weighed in with his response at The QandO Blog
Linked with today’s Beltway Traffic Jam, Conservative Cat, Stop the ACLU, and The Political Teen.
Previous Posts:
The Final Nail In The Coffin
The Difference Between Courage And Stupidity
It’s Time For This Nightmare To End
The Miers Nomination And Religion
Why Harriet ? Part II
Trusting W
Still More on Miers
Oppose Harriet Miers ? You’re Sexist
More On Miers
Solving The Miers Puzzle
Publius v. Harriet Miers
Why Harriet ?
Harriet Who ?
