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To: KMAJ2
My statement was a generic statement, not an attribution of my position.

Your #194 was a list of reasons the criticism and/or critics of the Miers nomination are "marginal," "wrong," and/or "weak."

Your opening paragraph describes attribues of fringe groups - in particular citing that fringe groups of the leaft and right are dogmatic, "speaking hollow platitudes" and having "a lust for power as their driving force."

Do you think that describes those who seek a nominee for SCOTUS who has specific opinions that strongly suggest they ascribe to judicial restraint?

You go on to describe a political spectrum, from left to right, where the majority of people are somewhere in the middle. Without coming out and saying it, the spectrum seems to be defined in terms of issues advocy. This isn't your list of issues, it's mine: "Should we go to war with [fill in the blank]?" "Should gay marriage be legitimized?" "Should abortion on demand be legal in all cases? (e.g., rape, incset, minors, parent consent/notification, etc." "Is affirmative action to be the law of the land? What about the nature of 'takings' for public use?" Those are all contentious issues, but I think you misunderstand the nature of the social battle as it plays out against those issues. Speaking for myself, the "far right" folks who do not like this nominee are pointing out a critical difference between issues advocacy and process advocacy. And most of the pro-Miers camp is not demonstrating comprehension of the process advocacy argument.

It isn't that SCOTUS will decide these issues one way or the other. The dogmatic Constitutionalist holds that SCOTUS should not be involved in those decisions, one way or the other. Does that make the Constitutional dogmagtist "far right," or "far left"?

You go on to describe the value of incrementalism, probably meaning in issues advocay and legislation, but in this context the notion of accepting incrementalism has the effect in my mind of a justification for settling for less than Bush's promise of a Justice in the mold of Thomas or Scalia.

You say that those who stigmatize Bush as not a conservative on the issues (recall the distinction between issues advocacy and process advocacy), and list advances made on issues, moving them toward traditional values. You even refer to the bullet items as "issues." You also list a number of issues (there's that word again) where his position is contrary to what conservatives generally stand for. And you conclude that on balance, Bush is conservative on the issues.

Regarding the Miers nomination in particular, you admit the nomination is confusing. Hah! It certainly is. But it is clear from your writing that you have not grasped the distinction between issues advocy and process advocacy, and the gap between how SCOTUS now plays into our Constitutional fabric, vs. how a dogamatic Constitutionalist (Thomas, Scalia to a lesser extent, Rhenquist) believes it should.

You also speculated on GWB's motivations for making this pick (leaving out the crony motivation) - that the nominee be pro-life (there's that issues advocacy thing again) who is acceptable to the DEMs. You speculate that in a masterful strategy, GWB anticipated the possibility of rejection, and under that cloud, he can "nominate that conservative we all want and weaken democrats ability to fillibuster." It isn't clear if you are into issues or process advocacy with your "that conservative we all want," but my hunch is that you are thinking in terms of issues outcome when you say that. As for this nomination somehow weakening the DEMs, or strengthing GWB's hand, I just don't see it.

You close with the thought that attaches "trust in Miers" based on the quality of GWB's past judicial nominees.

After all of that, you assert "My statement was a generic statement, not an attribution of my position." I don't care where you personally stand. I am rebutting your defense of the pick.

You do err in citing Griswold as a totally bad decision if it had been kept strictly to the topic that brought it about, contraception. Now, if you wish to break it down to some of the writing in the decision, you have a much stronger case, especially regarding penumbras and emanations. Roe is unequivocally bad law, irregardless of the moral outcome. It equates abortion as contraception, which is a very serious flaw.

This illustrates a confusing of issues advocay with process advocacy; and the shallowness of your understanding of how SCOTUS opinions operate over time. The Court -MUST- give the reason why a certain decision was reached, and it is that reason or rationale that cab be used to advance a liberal social agenda on an issues advocacy basis.

A simple example at home. You tell your kid to go to bed at 8PM. "Why?" comes the question. You answer, "Because you are tired." THe next day, you order your child to bed at 8PM, and the child says, "No - I'm not tired." The reason given is more important than the outcome, and the same is true as SCOTUS steps to handle (or not) the hot button social issues advanced by the liberal left.

The point in my statement was not that conservatives rally around her because she is pro-life, but that democrats will oppose her because she is pro-life.

Democrats deliberatly make this an argument over issues advocay, and the people fall for the trap every time. The DEMs use the issues advocay angle to whip up public sentiment, and too, to avoid a discussion on the merits of process advocacy. Why should the Court make the FINAL decision?

Miers is going to have to give a lights out performance in the hearings and provide conservatives with something solid to sink their teeth into to get them to rally around her.

Anybody who falls for that is naive about the role of SCOTUS in our system of government. My first objection (by now, not my only one) is against the notion of "trying to sneak one by" where I want the nominee to have judicial impulses that resemble Thomas'. I express this objection in my vanity essay, "Uncertainty," the Nominee.

Certainly, her ability plays a prt in this, but setting ability aside for the moment, I have many reasons (based on her answers to questions, her history and the like) to seriously doubt she understands the difference between issues advocay and process advocacy, or in the alternative, she understands the difference, but sees the Courts as justified in rendering FINAL decisions on social hot button issues.

if Bush's track record on judicial nominations weren't as good as it is, I would be against her now. I do not cloud the issue by diverting to other issues I have disagreed with him on that are irrelevant to judicial nominations.

The past picks illuminate nothing regarding this pick, for a couple reasons. First, each pick stands or falls on its own merits. Each nominee is a unique individual with a unique belief set. Second, all of the previous nominations forwarded by the WH (pretty much limited to the nominations for the Circuit Courts of Appeal) included as part of the criteria for being on the list, that the candidate have something specific in their record, that strongly suggested the candidate was someone who ascribes to judicial restraint. ... [lots of snippage - go read]

27 posted on 10/19/2005 1:37:10 PM EDT by Cboldt

And you do raise his past performance, but that serves mostly to put some heft behind the urging, "trust him."

I would like to see the question asked "What do you think of citing penumbras and emanations in reaching decisions ?" I also want to know her opinion on citing international law.

Roberts answered the Griswold question well, distinguishing between the majority gave in their rationales. That is a process advocacy approach, and doesn't fall into the issues/outcome trap.

Miers was a bad pick on many levels. It's bad on principle, it's bad for the political fallout, it's bad because GWB has damaged his own credibility. COntrary to your view, I think this pick has weakened the GOP's ability advance a COnstitutionalist, if GWB decides to nominate one.

Signed,
Elitist, sexist, cynical, ignorant, nitrous-oxide-huffing, looting, "church lady" hating, clown-car-driving bozo.

209 posted on 10/22/2005 5:35:58 AM PDT by Cboldt
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To: Cboldt

You certainly do engage in a litany of verbosity, as I am wont to do on many ocassions. Where I see the divergence, between you and I, is you see process and issues advocacy as black and white, a solid line dividing the two that cannot be crossed. I contend that one cannot simply make such a claim because if flies in the face of reality.

My defense, as you call it, of the Miers nomination only extends to her having a hearing, it does not go any further. Hopefully you were able to gather that much. Everybody knows what they say about opinions, we only have past events and precedents to base those opinions on. You clearly put more weight on your perceived evidence from Miers past, while you know very little of her personally. I am willing to concede Bush knows her better than I do, as such, I put more weight on his past judicial nominations and ability to discern their philosophy and positions. That weight ends at the hearings, it is then that Miers must provide the substance and insights that verify Bush selecting her.

Your initial response singled out only my reference to rallying around. I merely pointed out that your analysis misrepresented the words written. Pro-life was only referred to when talking about democrats 'rallying against' her, conservatives rallying around her was tied to her performance in the hearings. Granted, there will be some close minded conservatives that will continue to denounce her no matter how well she performs. Are you one of them ?

While my own verbose initial posting that you seek to critique is an amalgam of differing thoughts and issues, you seek to intertwine it into one stew, if you will. Bush as a conservative and the Miers nomination are separate.

You continue to mix issues when referencing incrementalism to the judicial nomination process, that is simply a diversionary rebuttal. Incrementalism is a wide sweeping tactic for re-shaping society, not something nailed down to single issue orientation. It is how the democrats sent this country down the socialist path, they did not do it in one fell swoop. It will not be reversed in one fell swoop, either.

It appears that your whole response is based upon a foundational argument that process advocacy and issues advocacy are distinctly separate and diametrically opposed. Were this a debate on stage, such a position would not hold up under scrutiny nor would its supporting argument be able to be logically defended as an absolute truth. Reality has to creep into your argument somewhere, and the truth is that issues advocacy and process advocacy overlap in many more areas than they have exclusive and distinctly separate areas. Issues supercede process and process supercedes issues to varying degrees, depending on the subject and the opinion that one puts forth.


210 posted on 10/22/2005 11:50:57 AM PDT by KMAJ2 (Freedom not defended is freedom relinquished, liberty not fought for is liberty lost.)
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