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Answering the "Tough" Questions
Posted by: Dale Franks on Tuesday, October 25, 2005

Hugh Hewitt continues to press for the nomination of Harriet Miers by asking some tough questions of her detractors. At least, he thinks they're tough. I think the answers are blindingly obvious.
The responses to arguments from the anti-anti-Miers crowd is to dodge the hard questions, which for the sake of brevity, I will list here:

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, as everyone who has served in the military knows, is a reciprocal obligation. The loyalty of supporters to leaders must be matched by a congruent loyalty from leaders to supporters. A president may rightfully demand loyalty from his supporters, therefore, only to the extent that he implements the policies that he was elected to implement. At the point that the leader no longer does so, he releases his supporters from any obligation to him, especially if he attempts to implement things that his supporters find irksome.

In the case of Ms. Miers, the president, after repeatedly assuring his supporters that he would nominate people to the Supreme Court with a clearly defined judicial philosophy, picked a candidate whose views on Constitutional matters are essentially unknown, and who has had no prior experience in dealing with constitutional matters at all. If therefore, the president sees fit to make such a nomination, in apparent contravention of his previous assurances, then it is the president, not his supporters, who has broken the reciprocal bonds of loyalty. Moreover, if the president seeks to appoint a candidate whose judicial philosophy and qualifications are...questionable, it is the duty of the president to explain to his supporters, in detail, why his choice is not, in fact, a contravention of his previous assurances.

Mr. Hewitt implies that some debt of loyalty is owed to the president by Republicans because he is the president. This implies that one's loyalty consists of some sort of personal fealty to a person, rather than to the set of policies the person represents. That may be a perfectly adequate description of loyalty owed by a serf to a feudal lord, but it is hardly consonant with the reciprocal loyalty demanded by a republican polity.
Do Harriett Miers' many accomplishments count for nothing?
This is a red herring. Obviously, Ms. Miers qualifications account for something. They clearly qualify her to perform some legal tasks, and, indeed, perhaps a great number of them. The question is not whether her qualifications are worth something, but whether those qualifications make her suited to sit on the Supreme Court of the United States.

I submit that they do not. They offer no assurance whatsoever that Ms. Miers has ever considered what an appropriate judicial philosophy would be. They offer no evidence that she has thought about the Constitution in any serious way. They offer no clues that she has undertaken any serious consideration about the place of the courts in our society. To the extent that they give us an insight into her writing and reasoning skills, the result is, at best, mixed.
Does Harriett Miers strike the commentator as a dedicated public servant?
Sure, she does. So what? John Paul Stevens has been an extraordinarily dedicated public servant, and has remained so at an age far past that when most of his contemporaries have retired. Or died. Despite this, Justice Stevens is one of the last people I'd like to see remain as a Supreme Court Justice.

Being a dedicated public servant is perhaps the least important qualification to being a justice of the Supreme Court that I can think of.
Why not wait for the hearings to at least begin?
Because I am not a Senator, and am, therefore, under no compulsion to wait until that time. If, as Mr. Hewitt has constantly assured us, that a reasonable amount of common sense is all one needs to serve as Justice, then, surely, that same amount of common sense is enough for me to make an independent judgment of her qualifications, isn't it? I can, after all, familiarize myself with her career and review her writings to come to my own evaluation as to whether I believe she should sit on the Supreme Court. I don't feel a particular need to wait until I have heard her answers to questions posed by such sterling intellectual giants like Joe Biden.

Moreover, what will I learn about her at a week or two of confirmation hearings that will outweigh the evidence provided by her 40 years of practicing law? Are we to assume that her last 40 years of experience are irrelevant, so long as she can pull off an adequate performance at a dog-and-pony show hosted by the Senate Judiciary Committee? And, what, precisely, will we learn about her at the hearings, if she pulls a Full Ginsberg, and refuses to comment on specific cases and describe her reasoning about them? And, finally, if we wait until then to make our displeasure known, will we have enough time to make our views fully known to the senators responsible for vetting her?

Ms. Miers has had a long career in the law. If the fruits of that 40-year career are insufficient to judge her qualifications, I can hardly see how the fruits of 40 hours of testimony will provide the necessary sufficiency.
How important is it that Roe v. Wade/Casey be reversed?
I think it's very important. But, one can't help but think that this is a continuation of the hints that, "She'll overturn Roe because she's all Christiany and stuff." But, you see, I don't want a safe Roe vote. What I want is a justice who can explain with precision why Roe is bad constitutional law, and who will overturn it because it is not consonant with a particular view of the Constitution.

It is that view of the Constitution that will tell me how she will vote in other cases besides Roe. If her opinion is that, "Roe should be overturned because abortion is, you know, icky," that doesn't give me any guidance on how she'll vote in Kelo, or Grutter, or Lochner cases. But that is precisely what I want to know, and I can't do that without having some idea of her judicial philosophy.

Knowing that she might have a particular bugaboo about Roe just isn't helpful, because I have other fish to fry than a reliable vote to overturn Roe. I am as keenly interested in the intellectual process that gets her to the decision than I am with the decision itself.
Which five precedents does the commentator think are in most pressing need of reversal?
Kelo v. New London (000 U.S. 04-108)
This decision simply guts property rights. If the city I live in decides they need a strip mall at my location, instead of my home, then Kelo essentially lets them get away with it, by sanctioning economic development as a valid public use. This is a radical departure from the constitutional history of the takings clause, because it amounts to nothing more than giving government the power to forcibly transfer property from one private owner to another.

Griswold v. Connecticut (381 U.S. 479)
The father of Roe v.Wade, this was the case that created the right to "privacy" from the penumbras and emanations of the Bill of Rights. This "right" to privacy has been constantly expanded to the point where it now provides a foundation for the possibility of court-mandated gay marriage and polygamy just as certainly as it led directly to Roe. It is not the place of the courts to mandate these social constructs. This is the province of the people themselves, determining how best to govern themselves and regulate their polities through their elected representatives in the state legislatures.

McConnell v FEC (000 U.S. 02-1674)
The Court's decision in this case, upholding the Bipartisan Campaign Reform Act (McCain-Feingold) is a travesty that guts free speech—and most importantly political speech, which was the primary concern of the Framers. It subjects participants in the political process to onerous penalties, merely for making their political views known.

Grutter v. Bollinger (000 U.S. 02-241)
The court upheld the use of racial preferences. I believe the government's use of racial and gender classifications of any type, for any purpose, are forbidden under the plain language of the 14th Amendment.

Roper v. Simmons (000 U.S. 03-633)
The Court, in what I can only describe as a sophistry of reason, outlawed the death penalty for juvenile offenders. Quite apart from the moral issue of whether juvenile murderers should be whacked, the court's decision, based on the "emerging consensus" of our society (if such a consensus is emerging, then does the Court need to act at all), and hinting at the use of foreign laws on the matter (foreign law is irrelevant to the Constitution) is illegitimate. In both cases, emerging consensus and foreign laws, such decisions are rightly legislative, not judicial ones.
Does the commentator agree with George Will's assertion of Justice Lewis Powell as the "embodiment of mainstream conservative jurisprudence?"
No. I pretty much agree with Patterico, in saying that Justice Powell was a perfectly lovely man, and terrible justice, as far as Constitutionalist jurisprudence goes.

But, you know, a real sweetheart.

So what? What's the point of the question, except to get in a little dig at George Will? Oh, sorry, wait a minute. That probably was the point.

Still, if Mr. Hewitt thinks Justice Powell was so-so—or worse—as a justice, then how does he respond to supporters of Ms. Miers' nomination who compare Justice Powell's resume to Ms. Miers' in support of her nomination, since both resumes show a similar dearth of deep Constitutional thinking? Why can't opponents, therefore, assert that the parallels between the two are perhaps, just a little too close for comfort?
Is a neo-Borking underway which will discredit the conservative cause's defense of its future nominees against similar, future attacks from the left?
No, because, as Judge Bork himself points out, no one is lying about Ms. Miers record. The use of the term neo-Borking is cute, but, since Judge Bork himself—presumably the country's premier expert on Borking—disagrees with the use of the term in this case, it strikes me a bit intellectually dishonest to use the term, since it's only use is polemical.

It might be a Borking if we were attributing to Ms. Miers views that she does not hold, as was done to Judge Bork. But we aren't doing that. Indeed, since it is impossible to say with any reliability what Ms. Miers views are, it is hardly possible to distort them. Nor are we lying about her record of experience. We merely assert that it isn't the type of experience that makes her well-suited to serve on the Supreme Court.

Since that is the case, I can only conclude that Mr. Hewitt uses the term "Borking" because it evokes a particular emotional response, and evoking that emotional response is more important to him than using the term honestly.
What are the political consequences of a defeat of Miers at the hands of a GOP controlled Senate?
About what they were for Ronald Reagan when he lost both Judge Bork and Douglas Ginsburg in quick succession, which is to say, not much. If the president immediately nominates someone with adequate credentials to replace Ms. Miers, that would be a unifying move. The president's problem with Ms. Miers' nomination is not that conservatives don't like the president, it's that they don't like Ms. Miers. Turning around and picking Edith Jones, either one of the McConnells (Professor Mike or Senator Mitch), Sam Alito, etc. will pull his conservative supporters right back in.

Now, it's clear that Mr. Hewitt's primary focus is not on philosophical differences between conservatives and liberals, but on partisan politics between Democrats and Republicans. That's not where I come from but, fine, I can play on that field too.

With that in mind, I think a far more important question, and one that Mr. Hewitt doesn't seem interested in asking, is "What would be the political consequences of confirming Ms. Miers be if she turns out to be another David Souter or, if you will, Lewis Powell?" How long does Mr. Hewitt expect that the base will keep coming to the polls to vote Republican if, in the end, they see the Court remaining the central repository of elite PC-ness, no matter how often Republican presidents and Republican congresses are elected? How long does he expect religious conservatives to show up at the polls, if in the end, what they get for their efforts is permanently legalized abortion, and court-mandated gay marriage and polygamy? Does he assume that they'll never just throw up their hands and say, "why bother"? Does he assume they'll never begin feeling a sense of betrayal? Is trying to cement a short-term congressional victory for the 2006 mid-terms more important than the danger of long-term disaffection by a significant portion of the party's base?

If so, then Mr. Hewitt's "strategy" strikes me as self-defeating.
 
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Comments
"This decision simply guts privacy rights..."

I think you mean property rights. Other than that, yeah, what you said. Though I’d replace Kelo with Raich, given that I think the former was closer to being correctly decided than the latter.
 
Written By: Matt McIntosh
URL: http://conjecturesandrefutations.net
She is qualified, sir. Reading the Constitution, the qualification for the nomination is solely the President’s choice of someone who can read, think, has a good character, and will apply the law/Constitution as written; and who will, with the advise and consent of the Senate, be confirmed.

It is my considered opinion that we are in this mess today precisely because intellectual credentialism allowed people who can be argued out of something actually present in the law/constitution as well as argued into something that isn’t present in the law/constitution get placed on the Court. It is ironic to think that a constitution written to be understood by the great unwashed is so hard for the ’anointed intellectual’ to understand.

I think all five should be overturned.
 
Written By: Charles D. Quarles
URL: http://spaces.msn.com/members/cdquarles/
Right on, Dale. For comparison, here are Patterico’s and Jeff Goldstein’s answers to Hugh’s dumb questions. Did Hewitt seriously think these were tough questions? I honestly can’t believe how poorly Hugh and the White House are reading the feeling and the arguments of the anti-Miers crowd.
 
Written By: Dutch
URL: http://
Is libertarianism about property rights only?

The real interesting case is Oregon Employment Division v. Smith. Biggest Free Exercise case in the last 15 years. Last 40 actually. Pro government/anti-free exercise opinion. Authored by Scalia. Totally inconsistent with the very language of the constitution "make NO law ....". Very anti-libertairan, anti-freedom. Hostile toward non-majority religions. An libertarians never bring it up. Why? Because Scalia authored it.

yes - that’s right. All this crap about originalism and strict constructionism and how conservatives want judges to interpret the law and not make law is just a bunch of crap in light of Smith. It never shows up in any of conservatives’ complaints. But if the right to worship your god in a manner of your choosing - a manner that does not harm anyone else, as in Smith - is not important enough to defend, then nothing is. Who gives a sh** abou your two acres if you can’t worship your god in the manner you choose.

And again, it comes back to Scalia. It’s about the hero worship on the right. Forget principle. If the principle mattered, you would hear about Smith, but you don’t. Because it was authored by Nino. Also, the right is generally anti-free exercise, except for Christians of course. Al Smith was a Native American. A good man. I met him. And Scalia wrote that his right to worship his god in the manner required by his religion was subordinate to the power of the state. Why? Because he was a brown man who did not worship Jesus.

But you never hear about Al and his plight from those on the right, especially the evangelicals. So the next time you hear some assho** conservative mouthing off about the left’s war on religion, shove Employment Division v. Smith in his face, tell him to read it (if he can), and then tell him to shut up.

What Would Miers Do?
 
Written By: mkultra
URL: http://
Once again, mkultra’s sheer idiocy shines through. The reason conservatives do not complain about Employment Div., Ore. Dept. of Human Res. v. Smith, (494 U.S. 87) is not because it was written by Justice Scalia, but because it has been pretty much settled constitutional law since 1879, when Utah was forced to outlaw polygamy in order to become a state. As Justice Scalia writes:
We have never held that an individual’s religious beliefs [494 U.S. 872, 879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594 -595 (1940): "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities (footnote omitted)." We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said, "are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.
Does mkultra beleive that Congress can ban no practice that is religiously motivated? If I worship the Dark Lord Cthulhu, and the Evil One commands me to violate, then sacrifice, at least one female virgin, not above 12 years of age, on every full moon, would mkultra respond that laws forbidding me to kidnap and murder adolescent virgins are protected by the free exercise clause? Would he argue that, as long as my religion commands it, I must be free to commit horrific outrages on children?

If not, then mkultra agrees, in fact, with the central holding of Employment Div., Ore. Dept. of Human Res. v. Smith, which that legal bans on certain activities, that are applied to the whole of the populace, are also binding on the adherents to religious sects. It must be so, because if I may willfully violate generally applicable laws through the claim of religious exemption then there are, in fact, no laws at all that I am compelled to obey. As it happens, the court rejected this argument 126 years ago, a time which, I hasten to point out, predates Justice Scalia’s tenure on the Court.
 
Written By: Dale Franks
URL: http://www.qando.net
It must be so, because if I may willfully violate generally applicable laws through the claim of religious exemption then there are, in fact, no laws at all that I am compelled to obey. As it happens, the court rejected this argument 126 years ago, a time which, I hasten to point out, predates Justice Scalia’s tenure on the Court.
If you actually read what I wrote - "a manner that does not harm anyone else, as in Smith" - you would have figured out that I said the government does not have the authority under the Free Exercise clause to outlaw religious practices that do not demonstrably harm others. Not speculation, not potential. There was no evidence in Smith that Smith’s particular exercise of his religious practice harmed anyone.

That’s my standard. You appear to defer to the government. And what part of "NO LAW" in the First Amendment is hard to understand?

Conservatives don’t really want strict constructionism. Go back and read what Hugo Black had to say. And then tell me with a straight face that they do.

 
Written By: mkultra
URL: http://
"you would have figured out that I said the government does not have the authority under the Free Exercise clause to outlaw religious practices that do not demonstrably harm others."

Except that you are wrong. In this case the practice was ingesting a drug that was considered illegal. Whether or not taking the drug harms others is beside the point; the government can declare the ingestion of the drug illegal even if used for religious purposes. The decision is here.

Since conservatives are generally for drug prohibition, I can understand why conservatives have no problem with this ruling. Libertarians probably see if differently, but only because of the broader issue of drug prohibition, not because the Supreme Court ruled incorrectly.

 
Written By: Unknown
URL: http://
If you actually read what I wrote - "a manner that does not harm anyone else, as in Smith" - you would have figured out that I said the government does not have the authority under the Free Exercise clause to outlaw religious practices that do not demonstrably harm others.
Oh. I see. So you don’t really mean no law. You just mean no law against practices that you consider to be legitimately religious.

So, essentially, you do agree with the central holding in Smith. You’d just draw the line in a different place. OK. Carry on.
 
Written By: Dale Franks
URL: http://www.qando.net
I am not a Senator, and am, therefore, under no compulsion to wait until that time
Dale, you’re usually among the first, and rightly, to complain about people acting without understanding the facts. Yet, here you go, making judgements on Meiers from a lack of information.

May I suggest that likely as not, both of us will learn much at the hearings, at which point we will both be better equipped to make judgements. (pun intended) I suspect you’ll be hard pressed to contain the resulting suprise, at that point, but we’ll see.

That said, your comment to MK is on the money.

 
Written By: Bithead
URL: http://bitheads.blogspot.com
Yet, here you go, making judgements on Meiers from a lack of information.
You don’t know what information I have, so I’ll thank you to refrain from telling me what I know.
May I suggest that likely as not, both of us will learn much at the hearings,
No. We won’t.
 
Written By: Dale Franks
URL: http://www.qando.net
Thanks Dale. You hit a grand-slam and I appreciate it.
 
Written By: Frank Laughter
URL: http://www.laughtergenealogy.com/blog/
All you anti-Meirs folks are just misogynistic, Ivy-League, elitist haters....Yes, I’m trolling.

 
Written By: Joe
URL: http://
Dale - For what it’s worth, one objection to Michael McConnell is that he testified at his hearing for the Tenth Circuit that Reynolds was wrongly decided. Of course, he’s also basically the author of the RFRA.

Good answers from you, Goldstein & Patterico - I see Hugh actually linked to Patterico’s response.
 
Written By: Crank
URL: http://www.baseballcrank.com
Question for Dale, or anyone else who wants to answer:

If you view Griswold as a bad decision (which I might, I’m not yet well-educated enough to have an informed opinion), would you support the creation of an explicit Constitutional right to privacy?

i.e., independently of what you think the Constitution now says, what do you think your ideal Constitution would say? Would you like the government to be able to ban contraceptive use by married couples, under the democratic principle that a Legislature reflecting the will of the people should be able to pass such laws? Or would you like a government explicitly limited from such interference in matters of personal liberty?
 
Written By: Mithras
URL: http://mithrastheprophet.blogspot.com
Forgive me but lack of time forbids me from responding with the depth that I would like. Perhaps later I will have more time. However, allow me to add this little bit now:

First of all, great post Dale! Thank you for another great blog.

Second, bithead writes:
Dale, you’re usually among the first, and rightly, to complain about people acting without understanding the facts. Yet, here you go, making judgements on Meiers from a lack of information. ...
But now we do have a fair amount of information on Harriet Miers. And, quite frankly, most of it is not good. Her answers to the Judicial Committee’s questionaire are pathetic. Inaccurate legal references, terrible grammar and as regarding the "proportional representation requirement of the Equal Protection Clause," either horribly inaccurate language (being excessively charitable) or a blatant misunderstanding of the Constitution.

And this is aside from her other examples of lose (read: lacking) logic, bad writing and often self-contradictory statements over the years.

Third, crank writes:
Dale - For what it’s worth, one objection to Michael McConnell is that he testified at his hearing for the Tenth Circuit that Reynolds was wrongly decided. Of course, he’s also basically the author of the RFRA.
I will admit that Michael McConnell is personally my first choice for the Court. And, incidentally, I also think Reynolds was wrongly decided.

What many people, including (especially) conservatives and perhaps even a few libertarians forget is that the United States Consitution does not always lead to a conservative and/or libertarian result. (Not coincidentally, Hugo Black is my all-time favorite Justice.) It is simply not the job of the Court misread the Constitution to make it so.

Fourth, I my opinion Employment Div., Ore. Dept. of Human Res. v. Smith was wrongly decided. While I do not have the time and the resources to respond in the details justified, I will say that, coincidentally, Michael McConnell and Judge Richard Posner co-authored an article in the University of Chicago Law Review on the "Economic Analysis of the Free Exercise Clause" that highlighted how the problem/difference with the Smith "Peyote" decision was that it unconstitutionally forced Smith to choose between the practice of his religious requirements.

My apologies but I do not remember the cite. If I can find it, I will post it.

Finally, Mithras asks the question:
If you view Griswold as a bad decision (which I might, I’m not yet well-educated enough to have an informed opinion), would you support the creation of an explicit Constitutional right to privacy?
My response is, NO!

The problem with a general, undefined "right to privacy" is that we will always be at the mercy of an unelected judiciary as to what that general, undefined "right" is.

For example, what prevents that constitutional right to privacy from including a right for adults to engage in sexual conduct with willing but still underage children?

Indeed, if there is this general right to privacy, what is preventing the argument that it is the child’s constitutional "right to privacy" that is not being violated by laws that now prohibit such things.

And while most of us would consider that outrageous, please remember that many have argued (and the Court has at least to some extent accepted) that the "right to privacy" created in Griswold and expanded in Roe does indeed include the right of a twelve-year-old child to get an abortion without her parents’ permission.
 
Written By: William Thomas
URL: http://
But now we do have a fair amount of information on Harriet Miers. And, quite frankly, most of it is not good.
Most of it anecdotal, wherein lies a serious problem with depending too much on it.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
But now we do have a fair amount of information on Harriet Miers. And, quite frankly, most of it is not good.
Most of it anecdotal, wherein lies a serious problem with depending too much on it.
Her response to the Judicial Committee questionaire is NOT anecdotal. She actually wrote that mess.
 
Written By: William Thomas
URL: http://
You don’t know what information I have, so I’ll thank you to refrain from telling me what I know.
Ah.
So are we now to think you have information on this matter that you’ve not scooped on the blog? That in all the tousands of words you’ve used to attack this nomination, that you’ve not told us everything? That you have some source of information on the matter the rest of us do not? Why are you not doing the talk-show circut?

Sorry, Dale. With all respect, no sale.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
Her response to the Judicial Committee questionaire is NOT anecdotal.
OK, arguably, that’s one.

And?
What else?
 
Written By: Bithead
URL: http://bitheads.blogspot.com
"Most of it anecdotal, wherein lies a serious problem with depending too much on it."-Yes, that’s the fundamental problem with Meirs, she MIGHT be another Chief Justice Marshall or she might be Chief Justice Taney of Dred Scott fame, who knows? Why should we buy a "pig in the polk?" The President saying "Trust me" is NOT the basis for reassurance or public policy.

Whether you agree with the President or not on Iraq, he did ask for a resolution and he did provide reasons for the war. They may or may not have been or be sufficient to you, but the President didn’t just say, "Look trust me here, I need to invade Iraq." To me that seems to be the major reason for me support Meirs, according to George Bush, and I just don’t think that is good enough.

Further, as others on the Web have pointed out, the one thing that she is most expert at, The War on Terror, is the one subject she CAN NOT rule on, but must recuse herself! So if this is a way to make sure that Jose Padilla stays in jail or that the prisoners at Gitmo don’t get to hire Johnnie Cochran, it won’t work.

What are her qualifications? I’m not a fan of a knock down drag out fight in the Senate for Judge Bork or his male/female equivalent, but could we get a nominee that at least I can HOPE will rule in a vaguely Conservative/Libertarian manner? George Bush’s assurance that she’ll vote the "Right Way" is unmoving, and BTW, what would Bush consider voting the right way, any way?
 
Written By: Joe
URL: http://
"Most of it anecdotal, wherein lies a serious problem with depending too much on it."-Yes, that’s the fundamental problem with Meirs, she MIGHT be another Chief Justice Marshall or she might be Chief Justice Taney of Dred Scott fame, who knows? Why should we buy a "pig in the polk?" The President saying "Trust me" is NOT the basis for reassurance or public policy.
And there’s the nut of it.
well, let’s get practical, here.
Without naming any names... mostly because I haven’t really considered any recently, let’s ask a question in theory: Let’s say Bush was able to nominate such a person, who has al the qualifications and positions that many are demanding. (And BTW, I’d like that, too...) do you really consider that such a person would stand a snowball’s chance of being confirmed?

See, here it is; All this anger is because some were spoiling for a ideological fight. The feel betrayed because Bush didn’t put up a candidate that they felt would elicit such a response in the Senate. They feel betrayed because they feel Bush backed away from a fight.

Thing is... are we ready for such a fight? I don’t think so.

Apparently these people have short memories. They forget that we have several within the Congress and in this case specifically the senate who fall into that category of “Republican in name only” and who will not vote, to override a Democratic filibuster, at the least, or who will, more likely join in the “Borking” of any candidate that the far right would be pleased with. I would estimate that over half the republicans in the Senate should be calle,d in the end RINOs.

The President, therefore, is quite correct to back away from the fight this time. We simply don’t have the ammo, in terms of numbers. If we were to follow the demands of the anti-Meirs crowd, we’d clearly not only lose the nominee, but the ideological fight as well, both by weight of sheer numbers.

Is that what we really want, here? Really?
 
Written By: Bithead
URL: http://bitheads.blogspot.com
Before responding to bithead’s comments, I would like to briefly reply to Joe’s comment:
...could we get a nominee that at least I can HOPE will rule in a vaguely Conservative/Libertarian manner?
I hope not. We need a nominee who will adjudicate in an originalist or strict constructionist manner. Anything or anyone else, including one who rules in a "vaguely Conservative/Libertarian manner," is irresponsible.

But to bithead.
Her response to the Judicial Committee questionaire is NOT anecdotal.
OK, arguably, that’s one.

And?
What else?
bithead, you need more?

Seriously. But if you do, Time magazine has excerpted some of her legal writings and somewhere on the web (exactly where I admit I cannot find at the moment) there are other excerpts of her writings.

And to be honest, just about everyone in this blog writes much better than she does. Even the individuals I disagree with. Including you, bithead!

From what I have seen and read from her, I just don’t think she has the ability to be a Supreme Cour Justice. You may disagree and that’s fine. But, again, from what I have seen from her, I personally don’t think she has the ability.

And let me add that I was not one of those who opposed Miers’ from the first moment of her nomination. I was very skeptical because I think it did (and does) send the wrong message: If you’re an originalist legal scholar, don’t leave a paper trail.

I think that is simply wrong. We are wagging a war of ideas and we cannot afford to discourage anyone from publishing and promoting those ideas. However, I was willing to give Harriet Miers a chance until I had more information about her.

Now, however, we have more information about her. Now I am actively opposed to Miers’ confirmation. For the reasons I state above, I do not think she has the ability to be a competent Supreme Court Justice.

A competent partner at a law firm, perhaps, but not a competent Supreme Court lawyer.
 
Written By: William Thomas
URL: http://
One more thing, could we change the name from "Right to Privacy" to what it truly is, a "Right to AUTONOMY?" That’s what Griswold has truly become, a right to be independent of the social mores and taboos of your tribe/society. "Privacy" seems to imply security from search or observation and that’s not what is really being advanced under this right.
 
Written By: Joe
URL: http://
Including you, bithead!
Thanks.... I think.
think it did (and does) send the wrong message: If you’re an originalist legal scholar, don’t leave a paper trail.


But that’s exactly the point... in the current climate it’s the only way you’re going to get confirmed.
We are wagging a war of ideas and we cannot afford to discourage anyone from publishing and promoting those ideas.


Wrong battle, wrong war. We’re now about trying to get someone confirmed to the USSC. The numbers are not there in the senate of 2005, for an ideological battle of those lines and those proportions.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
I know we’ve moved past MK’s arguement, but I have to comment.
Also, the right is generally anti-free exercise, except for Christians of course.
Because he was a brown man who did not worship Jesus.
If, next Sunday, by some strange twist of fate, I find myself in a church that actually serves wine for communion (as opposed to grape juice), I would be breaking the law. Namely, consuming alcohol prior to my twenty-first birthday. Three days prior, to be specific. I am a white person, by the way. And I worship Jesus. Is this where I tell MK to shutup? Nah, he does have the right to free speech.
 
Written By: CyanCyde
URL: http://
[I] think it did (and does) send the wrong message: If you’re an originalist legal scholar, don’t leave a paper trail.
But that’s exactly the point... in the current climate it’s the only way you’re going to get confirmed.
We simply and adamantly disagree here. I think the votes are there.

Moreover, as I also stated, we are in a battle of ideas. If you don’t think so, bithead, then why do you write above:
[A nominee] who has all the qualifications and positions that many are demanding. (And BTW, I’d like that, too.(emphasis added)
And many, if not most, of the ideas are generated not on the High Court but in academia and the appelate courts. It is simply that the High Court is simply the final word in such matters.

For example, consider Michael McConnell law review article I mention above. I also thought the Smith decision was wrongly decided (independent of McConnell’s article) but where can we argue the rationale for reversing or at least limiting the impact of that decision in future cases if those who disagree on originalist grounds are discouraged from arguing their position?

Indeed, for those of you who think that Smith was correctly decided, how can I or McConnell persuade you that the decision was indeed wrongly decided if I and McConnell and Posner are discouraged from writing?

By the way, bithead, my compliment was sincere.
 
Written By: William Thomas
URL: http://
Mithras: if the amendment saying that there are rights not enumerated in the Constitution doesn’t already suggest there is a right to privacy (not in the sense that people apply it to Roe, but by presumption-of-liberty: assume it’s a right until the public makes the law say otherwise themselves), then yes, an amendment should be added establishing that there is:

"Government shall not hold the power to infringe on the privacy of any adult citizen, unless being accused of directly violating the rights of another citizen, for any reason whatsoever."

Obviously that’s just a rough draft, but you get the idea. Basically that’d short-circuit any attempt at enforcing laws based in morality—can’t convict someone of the "crime" if you aren’t allowed to investigate it—and make clear once and for all what the sole legitimate purpose of government is: defense of individual rights, PERIOD.
 
Written By: b-psycho
URL: http://psychopolitik.blogspot.com
OK, arguably, that’s one.

And?
What else?
Well, assuming the plethora of anecdotal evidence, the lifetime avoidance of constitutional thought, the embarrassing mistakes, her juvenile writings, and the otherwise cipher-like quality of this nominee are only "one"....that leaves us with one reason to oppose Miers nomination. Which is one more reason than we have to support Miers.

Why don’t you give me a good reason I should support her. Bush says "trust me" doesn’t count, since I don’t.
 
Written By: Jon Henke
URL: http://www.QandO.net
"...could we get a nominee that at least I can HOPE will rule in a vaguely Conservative/Libertarian manner?
I hope not. We need a nominee who will adjudicate in an originalist or strict constructionist manner. Anything or anyone else, including one who rules in a "vaguely Conservative/Libertarian manner," is irresponsible."
-Respectfully, no it isn’t. I’m a Realist AND a Libertarian Conservative, just like Ted Kennedy is a Liberal. We want outcomes that advance our positions. I’m not irresponible in wanting a Justice that will advance my cause. The USSC isn’t an ivory tower; it’s a battlefield of ideas and conflicting theories, one of which is Originalism or Strict Construction. Please don’t make the assumption that your THEORY is a Truth, it is merely ONE way to view the Universe. Certain theories would yield pernicious or disastrous outcomes for society, but in a THEORETICAL sense there is no real way to determine which theory is best or more "Correct." So I want someone to advance my worldview. Ted Kennedy wants someone to advance HIS. We hold elections and practice the politics of Senate confirmation to determine which one of our theories will be advanced or more advanced by the selection of a particular candidate.
 
Written By: joe
URL: http://
lifetime avoidance of constitutional thought


ONce again, I point up the WH arguably walking the edges of the Constitution, and her as WH council, would not exactly sheild her from such thought, and the success of such strolling would suggest a pretty fair understanding of such matters.

As to trust, Jon, if you honestly think Bush would nominate a full-blown liberal for the post, I can’t help you much.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
. If you don’t think so, bithead, then why do you write above:

[A nominee] who has all the qualifications and positions that many are demanding. (And BTW, I’d like that, too.(emphasis added)
Because I view this as two seperate things, in this case. If we don’t have the numbers at the moment to get a more overt conservative on the court, then, that’s the reality of the situation. But that’s only one battle in a larger war. I don’t propose to lose the whole damned war by throwing it all on one battle.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
Griswold v. Connecticut (381 U.S. 479)
The father of Roe v.Wade, this was the case that created the right to "privacy" from the penumbras and emanations of the Bill of Rights. This "right" to privacy has been constantly expanded to the point where it now provides a foundation for the possibility of court-mandated gay marriage and polygamy just as certainly as it led directly to Roe. It is not the place of the courts to mandate these social constructs. This is the province of the people themselves, determining how best to govern themselves and regulate their polities through their elected representatives in the state legislatures.

Do you disagree with this case or the expansion of it in other decisions?

I believe we do have the right to privacy and would like this decision to stick.

Extending it to roe was wrong, so overturn roe. The example you sighted about a right to privacy for having sex with children is ridiculous.

It’s never been expanded to the right to privacy while commiting a crime that causes harm to others, except in roe, so again overturn roe.

The example I cite is different but a good analogy. I run a missing children’s organization and as so I supported and pushed to get Megan’s Law passed.

Now there are states that use Megan’s Law for burglars, armed robbers, and other criminals.

Megan’s Law was never intended for anyone other than child molesters. Now some states have expanded it and applied it wrongly in ways that violate people’s rights.

I still think Megan’s Law is a good thing and don’t want it overturned. I want the expanded versions of it and the misapplication of it reversed.

Same goes for griswald.

Otherwise agreed with your article wholeheartedly. I’d just like to see a list of tough questions put to Hewitt.

Personally, and I know some of you like hewitt, but I think he’d confirm anyone short of Michael Moore or Al Franken if Bush nominated them.
 
Written By: Chris McElroy
URL: http://thingsthatjustpissmeoff.blogspot.com
The example you sighted about a right to privacy for having sex with children is ridiculous.
Uh, it was supposed to be ridiculous. That was the whole point of the analogy.
 
Written By: Dale Franks
URL: http://www.qando.net
The best you can come up with is...
ONce again, I point up the WH arguably walking the edges of the Constitution, and her as WH council, would not exactly sheild her from such thought, and the success of such strolling would suggest a pretty fair understanding of such matters.
...well, nobody has stopped her from learning about the Constitution recently. And...
As to trust, Jon, if you honestly think Bush would nominate a full-blown liberal for the post, I can’t help you much.
...."Read my lips, no new Souters".

The score remains 0-1 against her confirmation.
 
Written By: Jon Henke
URL: http://www.QandO.net
-Respectfully, no it isn’t. I’m a Realist AND a Libertarian Conservative, just like Ted Kennedy is a Liberal. We want outcomes that advance our positions. I’m not irresponible in wanting a Justice that will advance my cause. The USSC isn’t an ivory tower; it’s a battlefield of ideas and conflicting theories, one of which is Originalism or Strict Construction. Please don’t make the assumption that your THEORY is a Truth, it is merely ONE way to view the Universe. Certain theories would yield pernicious or disastrous outcomes for society, but in a THEORETICAL sense there is no real way to determine which theory is best or more "Correct." So I want someone to advance my worldview. Ted Kennedy wants someone to advance HIS. We hold elections and practice the politics of Senate confirmation to determine which one of our theories will be advanced or more advanced by the selection of a particular candidate.
joe, I simply and totally disagree with you!

It is very irresponsible to want the Supreme Court to advance your political cause. If you have the right to advance your "Libertarian Conservative" viewpoint (a political viewpoint that is probably close to my own) through the High Court, why can’t the next person advance their idea of a "Totalitarian Theocracy" through the Court?

Aside from constitutionalist considerations, their political viewpoint is no less legitimate than our own. But your very argument subverts any consitutional considerations to the accomplishment of a political end.

And it is for that very reason—that constitutional considerations should not be subverted to politial considerations—that I think originalism or strict constructionism is the ONLY responsible means of adjudicating. A political ends is accomplished, such is unavaidable, but the ends is the ends contemplated by the authors of the laws in question. And if we the people do not like the ends contemplated or achieved, we the people can change the laws.
The example you sighted about a right to privacy for having sex with children is ridiculous.
Uh, it was supposed to be ridiculous. That was the whole point of the analogy.
Thanks Dale.

You get it, he doesn’t. As a political matter, I can sympathize with those who "want to have it both ways" but as a matter of principle, they simply can’t.
 
Written By: William Thomas
URL: http://
...."Read my lips, no new Souters".
Read MY lips: "How do you know she’s another Souter?"
 
Written By: Bithead
URL: http://bitheads.blogspot.com
Read MY lips: "How do you know she’s another Souter?"
She’s a cipher, with a history of ’evolving’. Maybe she won’t turn out like Souter, but she’s starting out like him. Meanwhile, supporters never did manage to come up with any concrete reasons to support her.
 
Written By: Jon Henke
URL: http://www.QandO.net
William,
You have made two mistakes, I think.
1. You believe in Law, as a Science, where there is a theory/paradigm that describes, explains, and predicts. Law isn’t Science. We merely have competing worldviews. Marxists have theirs, I have mine. We tend to discount evidence that negates our worldview(s). Sometimes theories of the "Good and Just" Society are SO BAD, think Stalin, Hitler, Mao that they fail. Generally, though, they don’t. So you advance a THEORY of Constitutional Interpretation, not a fundamental TRUTH of the meaning of the document.
2. You confuse your theory with a truth and it blinds you to the fact that your theory is just that a theory...not a fundamental truth of the Universe a la Planck’s Constant or Heisenberg’s Principle of Uncertainty. The reality is that the whole point of a way of interpreting the constitution IS TO ADVANCE A POLITICAL AGENDA. By-and-large, there is NO Absolute Truth or "Correct" way to judge the US Constitution. You put the cart or the COURT before the Horse. You divorce Politics from Law when the two are inseparable! The point of the USSC is to interpret the Constitution, in a manner that advances ones cause, it is not to advance some abstract principle that exists apart from the society!

I do not mean this as a personal attack. I agree, that on a board such as this, that you and I probably share many programmatic goals. However, you seem to believe that a certain way of viewing the Universe of Law, Society, and Ethics is "True" in some way that is akin to Science, when in fact it is not. I am honest enough to say that I prefer my view of Law because it advances my view of the Good and Just Society. I don’t claim that there is a separation of Law and Politics, but rather a fusion of the two. True, that makes me akin to the Critical Legal Scholars and the Post-Modernists, I don’t deny it. I simply don’t see Law and Constitutional interpretation as something that can be or SHOULD be divorced from ones ideal of the Good and Just Society. So I say, bring on Eugene Volokh or Glenn Reynolds for Sandra Day O’Connor’s seat, because they will make the kind of law I like! You seem to want to fool yourself or others that your view of interpreting the US Constitution is some how divorced from Privatized Social Security and it isn’t.
 
Written By: Joe
URL: http://
Joe, first of all, I do not think of your comments as a personal attack. I think they are well-reasoned; although totally wrong.

You yourself admit the basic flaw of your position:
I don’t claim that there is a separation of Law and Politics, but rather a fusion of the two. True, that makes me akin to the Critical Legal Scholars and the Post-Modernists, I don’t deny it.
If that is the case—and we both agree that it is—then how can you justify your position as in any way better than the positions of statists and totalitarians?

And by the way, I don’t deny that an originalist judicial philosophy advances a political agenda. That is unavoidable. It’s just that it is the best, indeed, ONLY, means enforcing the political agenda of the electorate that enacted the laws in question. And enforcing the political agenda of the electorate that enacted the laws in question is fundamental for a republic.

Otherwise, why not simply enforce the political agenda of my own personal sovereign will upon the electorate?

Oh wait, that is exactly what judges do when they do not adhere to an originalist jurisprudence.

Your argument is political, neither legal nor judicial, and thus should be acted out in the political branches of government and not the judiciary. But then again, that is the basis of our argument here.
 
Written By: William Thomas
URL: http://

 
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