Posted on 10/26/2005 11:40:46 AM PDT by Ol' Sparky
The Last Line of Defense
By: Leon H · Section: SCOTUS
Much hay is (rightly) being made today about this speech that Harriet Miers gave to the Executive Women of Dallas (EWD) in 1993. The transcript of this speech pounds another nail in the coffin of the hopes that Harriet Miers resembles Scalia or Thomas in the slightest - and gives further credence to the concern that Miers may actually be to the left of Sandra Day O'Connor.
With each passing day, we are asked to discard more and more evidence that this woman is not a conservative, and that the President has violated one of his most important campaign promises. Right now, the only credible defense of Miers that remains is the one being advanced by Paul Mirgenoff and John Hinderaker: that the President has historically had the prerogative to nominate whoever he wants, absent egregious corruption or ethical problems.
To this extent Mirgenoff and Hinderaker are correct. But just as the President has the prerogative to nominate whoever he wants, his constituency likewise has the right to express its displeasure with the President's choice, and to exert pressure on the President to reconsider his choice, or on Senators to reject the President's choice.
Material from the speech and a timeline below the fold:
Here, briefly, is a list of things that we are supposed to ignore as a part of Harriet Miers' past, while simultaneously being told that she will not "change in 15 or 20 years."
* Contributions to various Democrats (AlGore)and the DNC: 17 years ago
* Support for the "affirmative action" redistricting plan on the Dallas City Council: 15-16 years ago
* Support for the Texas Bar Association's Resolution for "hiring goals" (a nice euphemism for "quotas" in the legal community): 13 years ago
* This EWD speech: 12 years ago
This list, of course, says nothing about Miers' purported work on the Bollinger case, in which eyewitnesses have placed her arguing for the "split the baby" position that the Administration eventually adopted in their amicus brief. I was not on the blogger conference call last Friday, but numerous accounts indicate that Mehlman was asked point-blank about her role in this decision, and provided an evasive answer. This was, of course, less than five years ago.
Someone remind us, when did the "political conversion" of Miers into Scalia/Thomasdom actually take place? And if it took place less than fifteen years ago, why exactly should we feel confident that it will not occur again within the next ten years?
To the evidence at hand. The EWD speech is the most damning evidence yet that as recently as 12 years ago, Miers did not have a "strict constructionist" judicial philosophy, or any conservative leanings at all. Now, Rich Lowry has taken issue with the WaPo's characterization of this article (which I haven't read), and tries valiantly to paint Miers as an "ambiguity" in light of the speech. However, while the beginning of her speech was indeed a complaint about legislatures punting difficult issues to the court, toward the end of her speech, she shifted and began discussing some of the problems with the court as she saw them.
In this context, we find the most disturbing words from Miers to date:
We still have all white juries trying cases which significantly impact the rights of minorities. We undeniably still have a justice system that does not provide justice for all as provided by the Bill of Rights.
Hello?? Is it now mandatory that minorities sit on juries in any trial that impact minority rights? As in, the cases don't even have to involve actual minorities, they just have to "impact the rights of minorities"? Do you have any idea how far out in left field this idea is?
Oh, and hey - for all the assurances we've had that she is "personally pro-life" and that she donated $150 ($150!!1!1) to the Texans for Life Commission in 1989, this speech from 1993 doesn't exactly warm the cockles of our hearts when we consider whether she actually thinks that Roe should be overturned:
The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual woman's right to decide for herself whether she will have an abortion.
* * *
The law and religion make for an interesting mixture... the underlying theme in most of these cases is the insistence of more self determination. And the more I think about these issues, the more self-determination makes the most sense. Legislating religion or morality we gave up on a long time ago.
* * *
Where science determines the facts, the law can effectively govern. However, when science cannot determine the facts and decisions vary based on religious belief, then the government should not act.
Officially, I will no longer brook any silly comments about Miers being "personally pro-life." I have heard the last that I will hear about her "deep religious convictions." Until Miers herself is willing to repudiate these statements, she is clearly on the record stating that those considerations do not matter in a legal sense - and further strongly suggesting that the legally right thing to do is uphold Roe. Even Mirgenoff and Hinderaker concede that Miers needs to explain these statements.
Literally the last line of defense left for the Miers supporters is the "Presidential prerogative" defense. Certainly, the Constitution allows a President to disregard the plain wishes of those who elected him to office, but the political process allows those electors to push back at him in the most effective way they know how - including exercising their Constitutional prerogative to vote or not vote in the manner they wish. And when the President violates his explicit campaign promises in such a blatant manner, he should expect nothing less.
And if Republican Senators expect to receive my support and/or votes in the next election, they will reject this nominee, if she makes it to committee.
Miers is suggesting that justice can only be obtained from juries that share racial characteristics with the defendant. This is not a viewpoint one ordinarily associates with conservatives. In fact, she comes close to advocating a quota system for juries, which is a thoroughly repugnant notion to anyone who believes in a colorblind justice system.
I dare say every Freeper would agree with the theme of her speech that it is better for legislatures to solve problems than for the courts to.
Ponnuru gives a better response to your question than I can.
JUDICIAL USURPATION AND LEGISLATIVE ABDICATION [Ramesh Ponnuru]
Rich: I think you're giving Miers too much credit here, and the Post too little. There are a lot of ways to connect the themes of judicial usurpation and legislative abdication. You could adopt the argument that legislatures are to blame for not reining in the courts (an argument which I think is generally sound). You could go on to note that legislatures have not sought to reclaim their powers because they are perfectly happy to see the courts get the blame for tough decisions.
That's not the argument Miers makes. The argument she makes is that the courts can't be blamed when they are forced to step in to resolve problems that elected officials have failed to resolve (e.g., the problems of school funding and low-income housing siting). That is a very standard argument, usually associated with liberals. Eliot Spitzer, for example, often argues that it is necessary to pursue anti-gun policies through the courts because legislatures have failed to act. But it's hard to see how the courts are to distinguish between a) a legislative "failure to act," b) a legislative decision that there is no problem demanding solution, or c) a legislative decision that solving any problem would create new and greater problems. Any act of judicial usurpation can be described as a reluctant response to the legislature's failure to enact what the judges wanted them to enact.
Miers may have modified or reversed her views since then, but the speech strikes me as an example of the kind of mindset that one does not want in a Supreme Court justice.
What would it take for the hearings to make her qualified in your view?
But I want an up or down vote after a hearing.
Moving right along, if she is articulate, manages to avoid relying primarily on cliche speak like her writings, claims she really did write all those briefs she signed which sound so very different in style from her other writings, in fact has some other writings that reflect such style, demonstrates that she understands the constitutional issues and understands their complexity, and the competing arguments, and has something interesting to say about them, admits that her speeches and chat notes were imprecise, that she believes in something more nuanced, has evolved, is not really a chameleon who just tells folks what they want to hear, and as examples of that, they include a,b,c, and d, did not mean to suggest that courts should write legislation to fill a void left by the legislature, explains what she meant by self determination, and the criminalization of abortion, and how that comports with her own purported views seemingly to the contrary, and if not why, and was she just brown nosing, or what, then I suppose at some point I would deem her qualified, and not a rather superficial insecure knee jerk liberal and/or Chameleon.
Anything is possible, but at this point, the odds are low that I will support her after the hearings.
The speech is simply awful John, just awful. It made me CRINGE. I just wanted to get up and slap the woman.
"You could go on to note that legislatures have not sought to reclaim their powers because they are perfectly happy to see the courts get the blame for tough decisions. That's not the argument Miers makes..."
Miers makes that very point several times. EG: "I sometimes sensed that it was preferable from a political standpoint not to make a decision at the elected level knowing that a federal judge would do the dirty work."
"The argument she makes is that the courts can't be blamed when they are forced to step in to resolve problems that elected officials have failed to resolve (e.g., the problems of school funding and low-income housing siting). That is a very standard argument, usually associated with liberals."
Correct me if I'm wrong ( I don't know the specifics of the cases) but segregated HUD housing and school funding were illegal by "settled" law. She doesn't advocate a general judicial power to solve problems without any constitutional authority to do so- which is what liberals do.
No, she didn't talk like a Supreme Court justice, but she wasn't. She was giving a valedictorial speech to a bunch of equal opportunity bimbos sweet old ladies.
Admittedly, I wonder if she was talking like a possible elected Texas Supreme Court justice.
O.K., she needs to go. What do we do now? All I can think of is call the White House and call and e-mail our Senators.
She wanted a state income tax and more funding for poorer districts, and more integrated neighborhoods, and suggested that the legislature should do it, because otherwise the courts would do it, as a last resort to resolve these pressing social ills. You can try to spin it some other direction, but that was the message.
Miers may well get confirmed, but with more Dem votes than Pubbie votes. This speech is her calling card to round up the Dems. It is that good. It will be interesting to see what happens at the hearings, and just whose votes she and/or the White House try to go after. If the Dems think they have another Souter or Kennedy or better, many of them will not care about competence. That will go out the window.
Nonetheless, the process is the process.
I've been screaming for years that Bush should get up or down votes on his nominees. If I change now I'll have to grow a beard until the day I depart. My wife doesn't like it when I grow a beard.
Yes she should, and in any event, Bush can hardly yank her, even if he wanted to, if she wants to proceed. What would he say? Well, I didn't read, and nobody did, her speeches, and now that I did in the WH, we didn't vet her, and now I want to yank her? Can he even yank her if he wanted to legally? The hearings should be interesting.
We'll know soon.
Yes she should, and in any event, Bush can hardly yank her, even if he wanted to, if she wants to proceed. What would he say? Well, I didn't read her speeches, and nobody did in the WH, we didn't vet her, and now that I did, I want to yank her? Can he even yank her if he wanted to legally? The hearings should be interesting.
LOL, you are the master of understatement. The only saving grace may be that if Miers is as bad as this speech portends, Arlen Spector will vote no, Roe not withstanding.
This one is a dealbreaker. Her tacit approval of activism when legislatures don't act toward some end she approves of is, well, @$#$%#%#^ terrible.
Opposing this on the merits is quite easy. There was no need for all the garbage.
The speech was that brilliant wasn't it? Bush and Miers had this all planned back in 1993.
Can you clarify that for me Smitty?
Soon, much more will come out about her to reassure you.
I do believe juries should be diverse because people have different backgrounds and a different approach that would be helpful to finding the truth.
OJ got off because the jury was not diverse but rather stacked in his favor so to speak racially.
Whites got off in the old South because the juries were stacked with whites.
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