Posted on 10/10/2005 1:00:07 PM PDT by KMAJ2
October 3, 2005
Harriet Miers, Conservative
At the risk of drawing the undying enmity of The Herd, I'm going to state categorically that conservatism is sitting pretty at this hour. That's because Harry Reid has just been hosed – and he doesn't even know it.
The navel gazers are nabobing about another Souter. That's silly. The Court will almost certainly move to the right as a result of the nomination and confirmation of Harriet Miers. And here's why.
It's true. Little is known about the views of Harriet Miers. But what is known, through official and unofficial channels, paints a picture of a conservative Texas lawyer with rock-solid beliefs on life, strong religious convictions, and a modesty that should allay fears of a renegade Justice determined to remake society through the courts. John Roberts was the silver-tongued, inside-the-Beltway pick for the Court; Miers is the plain spoken red stater.
In 1993, when the American Bar Association moved to enshrine its support for abortion-on-demand, Miers fought to have the issue put to a vote before the entire ABA:
"If we were going to take a position on this divisive issue, the members should have been able to vote."
As the Note Notes, she kept at it, seeking to overturn the Bar's pro-abortion stance into the late-'90s. Tim Carney observes, "In favor of democracy on the issue of abortion? Let's hope she carries that through."
NARAL can read the writing on the wall, and it's not very pleased, stating that Miers "does not appear to have a public record to assure America's pro-choice majority that she is a moderate in the tradition of Justice Sandra Day O'Connor."
Marvin Olasky gives us by far the most illuminating glimpse into Miers' personal thinking, interviewing longtime friend and Texas Supreme Court Justice Nathan Hecht, as well as Miers' pastor. Here's Hecht on Miers and life: "[H]er personal views are consistent with that of evangelical Christians... You can tell a lot about her from her decade of service in a conservative church." And here's her pastor, Ron Key:
"I don't know how strong her faith was at that time. She came to a place where she totally committed her life to Jesus. She had gone to church before, but when she came to our church it became more serious to her.... Our church is strong for life, but Harriet and I have not had any conversations on that…. We believe in the biblical approach to marriage."
Miers was raised Catholic, and became Born Again around '79 or '80. We have no idea how her religious beliefs would impact her decisions on the Court, but in terms of the environment in which she has come up, she couldn't be further from the RINO-dominated New Hampshire of David Souter and even the libertarianish Arizona of Sandra Day O'Connor. Can anyone read these passages and not have hope that Miers would be light years ahead of O'Connor and Souter on Roe v. Wade?
Leonard Leo, president of the Federalist Society – you know, the evil, neanderthal Federalist Society – is a supporter. And so is Jay Sekulow of the American Center for Law and Justice.
But, as usual, quite possibly the most important perspective comes from Hugh Hewitt, who posits that Miers would be particularly strong in the area of national security jurisprudence. Having been "present at the creation" in the war on terror, not cooped up in isolated Circuit Court chambers or rarefied law school classrooms, a Justice Miers would be unlikely to let Jose Padilla roam the streets, or open up the gates of Gitmo. Folks – that's at least as important as the social issues.
As our picture of Miers comes into clearer focus, the Souter II narrative begins to strain credulity. It requires us to believe that the President who gave us Janice Rogers Brown, Michael McConnell, Bill Pryor, Priscilla Owen – and no RINO that I could name at the Circuit or District Court level, who fought the fight on Miguel Estrada, and who had originally orchestrated the masterful trade of Roberts-for-O'Connor, would suddenly punt at this critical moment. It also requires us to believe that Miers, who has worked with Bush for a decade, who is the White House staffer most intimitately involved with vetting nominees' judicial philosophies, and is one of the people Bush knows best, has been able to hide her true beliefs from her boss until – Ah, ha! – she donned the judge's robe. I'm sorry, but I don't think this is the same thing as an unknown from New Hampshire handpicked by Warren Rudman.
It's true this fight does not come under the most opportune circumstances. Had Chief Justice Rehnquist lived just two more months, making possible the elevation of Associate Justice Roberts, conservatives would now be in a position to replace a Justice undeniably their own. Instead, the Roberts nomination became an even trade for the fallen Chief, and Bush needed a certain conservative that Senate Democrats didn't know and couldn't tag as such. Given these tricky circumstances, President Bush has threaded the needle wisely, giving us a confirmable and reliable conservative for the Court's most sensitive seat.
Some would prefer a nominee in a more esoteric, elitist, or eccentric mold, with the penmanship of a Scalia. Harriet Miers will not be the flashiest Justice – but nor will she make leaps of logic that sometimes lead her in unconservative and unpredictable directions (see McConnell on polygamy, or Scalia on pornography). This is not the time to act like preening Ivory Tower elitists, but to call Harry Reid's bluff. Miers will cast the votes that O'Connor wouldn't. And that's all that matters.
UPDATE: Miers on the Second Amendment:
"The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs."
Adds David Kopel, "As far as I know, you have to go back to Louis Brandeis to find a Supreme Court nominee whose pre-nomination writing extolled the right of armed self-defense."
Their argument against is the ultimate hypocrisy. They decried the democrats wanting to inquire about positions on issues so they would know how that justice would rule, yet they want the same to ensure a justice will vote as they wish. I simply have to shake my head at the illogic employed to discredit Miers, not for any sound reasoning, but because she isn't who they want.
For those not familiar with Patrick Raffini, he was webmaster for Bush/Cheney '04. For the intellectual elites, he graduated magna cum laude from the Ivy League University of Pennsylvania with a BA in diplomatic history and political science. Though not a household name, he has appeared on many news programs and been quoted in many newspapers.
http://www.patrickruffini.com/about/
Not me. I said back during the Roberts hearings that the so-called Ginsburg standard was assenine.
At the risk of drawing the undying enmity of The Herd, I'm going to state categorically that conservatism is sitting pretty at this hour. That's because Harry Reid has just been hosed – and he doesn't even know it.The navel gazers are nabobing about another Souter. That's silly. The Court will almost certainly move to the right as a result of the nomination and confirmation of Harriet Miers.
[[Not me. I said back during the Roberts hearings that the so-called Ginsburg standard was assenine.]]
I can commend you for being consistent, but your view is clearly contrary to the Founding Fathers vision of an independent judiciary. While I agree with many of Miers detractors that Miers is not 'the best' available, I think she is more than capable enough to qualify. I find the Leo and Sekulow recommendations to carry more weight than those of popular pundits whose own Constitutional credentials do not measure up to the same standards they seek to employ and pass judgement on.
No it's not.
Check out this post if you get a chance.
http://www.freerepublic.com/focus/f-news/1497352/posts
[[clearly contrary to the Founding Fathers vision of an independent judiciary.
Huck: "No it's not."]]
Pretty hard to debate such a factual and substantiated rebuttal. Quite clearly, again, you seek a judiciary that is chained to the conservative ideology, not independent. I do not think anyone, conservatives or anyone else, has all the right answers. I just think conservatives have more of the right answers. I want a judiciary that is open to the facts presented in each individual case, not locked into pre-concieved or pre-determined judgement.
Nowhere will you find a requirement of a timely up or down vote (Justice Taney of Dred Scott fame was put off for over a year.) Nowhere does the Constitution limit what questions they can ask. Nowhere does it instruct them to give the president the benefit of the doubt. None of that exists. It's pure invention. And I am much more comfortable with the Senate actually doing its job and inspecting the goods than I am of a do nothing Senate letting the president get whatever he wants. That's how we got Justice Ginsburg, a person wholly unfit for her job.
I understand how one can quote selected writings, and how such writings can be interpreted to support a position. Were you aware that James Madison originally proposed a two thirds majority to override a presidential nomination ?
I recommend this site as an excellent Constitutional resource.
The Founders' Constitution
http://press-pubs.uchicago.edu/founders/
And it did not pass. End of story. What Hamilton wrote in #76 is clear. Granted, the Federalist papers are not law. Actually, they are political salesmenship. Further, I disagree with some of Hamilton's assurances. He thought the threat of embarassment would be a restraint. Obviously, it's not. But regardless, y'all want to strengthen the executive at the expense of the Senate, without Constitutional basis, because it's politically advantageous today. I do not want to strengrhen the president. The executive is already too powerful, imo.
But once the Constitution was ratified, that's interesting, but not law. The law is the Constitution, which did not place any requirements on the Senate. You have to go by the text. And as for me, on this I side with the anti-Federalists. I don't even think the staunchest Federalist would accept the amount of power the modern president weilds, and you want to give him more.
Agreed. These were indeed great choices. And they have proved their conservative credentials brilliantly and consistently since being appointed. The whole reason they were placed on the appellate bench was to position them for a SCOTUS appointment.
Any of them is superior to Miers, expecially in light of their demonstrated commitment to conservatism on the bench. Moreover each of them already has a well-rooted constitutional philosophy and understanding. Miers is staying up late at night cramming with a Laurence Tribe hornbook in the hope of being able to convery the impression that she has a consitutional philosophy but the time she gets in front of the Senate Judiciary Committee.
Moreover, several of these heavy hitters are at least a decade younger than Miers. Conservatives need as many good years from good conservative justices that they can get.
Of this group, McConnell has a reputation at least equal to if not exceeding that of John Roberts for his intellect and command of the most difficult constitutional issues. He would be ready to take the crown of "defender of the conservative faIth" from Scalia when Scalia finally decides to hang up his black robe. Miers will likely still be clueless at that point.
McConnell would also be confirmed with at least as many votes as Roberts got.
Perfect solution: nominate McConnell to SCOTUS and put Miers in McConnell's seat on the 10th Circuit.
Now, I whole heartedly disagree with your deference statement, to cite James Madison:
Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; & suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.
http://press-pubs.uchicago.edu/founders/documents/v1ch10s10.html
Here is that 2/3s Madison reference I made in another post:
- Mr. Madison, suggested that the Judges might be appointed by the Executives with the concurrence of 1/3 at least of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.
- Mr. Madison moved that the Judges should be nominated by the Executive, & such nomination should become an appointment if not disagreed to within days by 2/3 of the 2d. branch. Mr. Govr. Morris 2ded. the motion. By common consent the consideration of it was postponed till tomorrow.
Mr. Madison stated as his reasons for the motion. 1 that it secured the responsibility of the Executive who would in general be more capable & likely to select fit characters than the Legislature, or even the 2d. b. of it, who might hide their selfish motives under the number concerned in the appointment- 2 that in case of any flagrant partiality or error, in the nomination, it might be fairly presumed that 2/3 of the 2d. branch would join in putting a negative on it. 3. that as the 2d. b. was very differently constituted when the appointment of the Judges was formerly referred to it, and was now to be composed of equal votes from all the States, the principle of compromise which had prevailed in other instances required in this that their shd. be a concurrence of two authorities, in one of which the people, in the other the states, should be represented. The Executive Magistrate wd be considered as a national officer, acting for and equally sympathising with every part of the U. States. If the 2d. branch alone should have this power, the Judges might be appointed by a minority of the people, tho' by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States: and as it would moreover throw the appointments entirely into the hands of ye Nthern States, a perpetual ground of jealousy & discontent would be furnished to the Southern States.
http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s1.html
The founders were very leery of too much power in the legislature.
I'm sorry but this is just crap. I don't know if you noticed, but Madison wasn't the only one there. And you say I'm selective in my quotes? Further, all of that is totally beside the point once the actual Constitution was ratified. The only thing that matters is what the words say, and beyond that, I may be pursuaded by Madison, or then again, I might prefer Mason. They are dead, and we're alive, and it's up to us to look at the centuries of data and experience since they built this thing, and use our own brains to draw our own conclusions about what we want to do with it.
Again, you favor an even stronger executive, I prefer to weaken him, on all domestic concerns. We differ. It's ok. If you read ALL the framers' comments, you'll see there were grave differences. You can't say "the founders thought this" or that because they weren't a monolithic block. They disagreed on several mechanisms along the way.
But, I can easily fetch Hamilton, or Mason, or several others, and present wonderful contrary arguments with the same weight and appeal to authority you hope to gain from quoting Madison (even if you did try to gin it up to be all the founders.)
I like where in Federalist...I think it was 48, where Madison says the judiciary is not likely to usurp power; that their attempts would quickly fail. It has to occur to you when reading their theories that, as I am sure they expected, some were correct, some were not. So we each have to look for ourselves. But that is an aside to the simple fact that the Constitution gives the Senate unqualified advice and consent power. No strings.
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