Posted on 10/24/2005 4:41:12 PM PDT by Checkers
This is a long post, because it was composed on the long flight back from Italy where my wife and I spent a week of vacation.
Much to my wife’s dismay, I have been thinking about (at length) and occasionally writing about (in brief bursts) the nomination of Harriet Miers. I am convinced that this is a huge moment not just for the president, Ms Miers and SCOTUS, but also for the GOP and consequently the country. If you believe, as I do, that the country’s safety cannot be attended to by Democratic presidents or majorities in the Congress –not by design, but by sheer incompetence and fecklessness-- then any political event with the capacity to significantly degrade the political strength of the president or the Congressional majorities has to be thought through very carefully indeed.
I fully understand the risks of a new SCOTUS justice who reaches the wrong decisions, or even the right decisions by the wrong path expressed in opinions that live on to influence and/or bind future judges. I have written about that at length in previous books, in articles and on this blog, and of course I teach ConLaw and have for a decade to smart students who have to pass Bar Exams that test the subject frequently. The “hapless toad†case that caused Chief Justice Roberts some minor inconvenience was my case, brought by me on behalf of my landowner client, and the argument that we made –that the Commerce Clause simply cannot support the application of the regulatory penalties by federal agencies acting under the federal Endangered Species Act—did not prevail at the D.C. Circuit and was refused a hearing by SCOTUS much to our disappointment.. The folks alarmed by Kelo, for instance, have no idea –literally no idea—of the injuries done to private property rights by the ESA and other statutes across the nation every day.
I am also aware of the narrowing scope of protection accorded the robust free exercise of religion in the country, and have repeatedly appeared on behalf of churches and religious schools to attempt to stop the relentless demands of secular elites against their new plans for building, their architecture of worship or their anomalous meeting hours. Secular hostility to faith is deep and getting deeper, and the Justice Scalia-led, and Justice O’Connor-resisted scaling back of the Free Exercise Clause is a serious problem the equal or greater than Kelo.
I am also a serious pro-lifer, and believe that like Lochner, Roe was not only wrongly decided, but must also be reversed, just as Casey must be reversed. Of the 45 million unborn children who were not born because of Roe, it is impossible to say how many would have been protected by legislatures legislating on the issue as opposed to courts issuing decrees. But the number is in the millions.
There are other crucial issues as well. The wrongly decided Bollinger ruling, which continued the modern court’s refusal to heed Justice Harlan’s dissent in Plessy, is among them. I spent a lot of time campaigning on air and in person for Proposition 209 when the question of the State of California’s use of race and gender to award benefits or inflict penalties came before California’s voters. The reasoning of the wrongly decided Bollinger, which upheld my alma mater’s use of race in its admissions process must be absolutely rejected just as the people of California rejected similar reasoning when they passed Prop 209. Lower courts cannot do these things. Only SCOTUS can undo its mistakes.
There are plenty of obscure but pressing SCOTUS issues as well, from the meaning of the 11th Amendment to the Brentwood decision which proclaimed as “state action†the rulings of a mixed private school/public school athletic association, thus in a stroke radically escalated the opportunities to constitutionalize ordinary disputes best mediated at state and local levels.
The SCOTUS, even under an energetic new Chief committed to upping the caseload, will only get to at most a hundred or so decisions a year. If Justice Miers serves, as did Justice O’Connor, until she is 75, she will cast about 1,500 votes every one of which has huge significance.
And I haven’t even mentioned Bush v. Gore. Much less the GWOT.
So it is obvious why so many have reacted so strongly. The stakes are only higher on issues of national security.
Given these stakes, though, I was surprised, and remained surprised, at how quickly the assault on the nominee began, and how it escalated in intensity and rhetorical excess as the weeks have passed. There are a hundred motives for these attacks, but those from my friends in the conservative movement have been motivated primarily though not exclusively by the concern that Miers will get these crucial issues wrong, and yet another opportunity to redirect the SCOTUS towards its intended role will be lost.
Does anyone among the conservatives really not believe that President Bush has a different concern? Of all the charges from the right that are disappointing, the most disappointing charge that the president abandoned his principles to promote a “crony,†The left believes it, of course, but they also believe he went to war knowing there were no WMD and at the behest of Halliburton.
The concern pre-nomination was “not another Souter.†When Judge Edith Clement’s name surfaced just prior to the unveiling of Chief Justice Robert’s nomination, there was much “another Souter†muttering. So now the president picks the anti-Souter, the person he knows best from among all the candidates, a gun-owning, anti-abortion, White House participant for all four years in the GWOT, and immediately the assault begins? Miers was compared to Caligula’s horse, and denounced by luminaries on the right as unacceptable because they do not know her. This is nothing like any reaction to a nominee in memory. And if there is any precedent for the president’s own supporters to turn on a SCOTUS nominee in such a fashion, I am unaware of it. In fact, I am trying to recall a single instance of any high profile nominee ever being treated in such a fashion by members of the nominating president’s own party.
The objections to Miers fall into three categories: That she is not competent to sit on SCOTUS, that she is not reliable and will “grow†into another disappointment, or that the president missed a rare opportunity to either remake the SCOTUS or engage in a necessary battle with Senate Democrats over the judicial nomination process.
I will pass over Senator Leahy’s concerns –and those of many other senators if unnamed sources are to be believed— about Miers’ competencies. Really. While they get to vote, do we really believe that Patrick Leahy, Joe Biden, Ted Kennedy, Dick Durbin and Dianne Feinstein have any idea what they are talking about? Can any defender of Roe, for that matter, really be thought of as other than an unprincipled commentator? There are some serious ConLaw students among the senators, and John Kyl and John Cornyn come to mind. There are others. Senator Hatch certainly has the ConLaw chops where sober conservatives are concerned. Hatch and Cornyn support Miers. Kyl’s opinion will carry great great weight –and, btw, great, great risk. Watch that senator from Arizona closely. (And continue to ask where the other Arizona Senator, father of the 14, is.)
The majority of commentators who are not lawyers –there are many—are simply not equipped to judge Harriet Miers’ competence. Mark Levin is a big exception. As is Judge Bork. But against these two are arrayed Professor Graglia and Dean Starr. There is disagreement among the ConLaw superstars. Perhaps lesser mortals in this field should wait for the hearings?
Some haven’t because they are concerned about reliability, even though the president’s belief in Miers’ reliability --not in result, mind you, but approach—is rock solid. To doubt Miers’ reliability, you have to doubt the president’s reliability, and not just generally, but on the matter of judicial nominations, on which his record has been superb. This is no easy thing to work up to. So the hunt got under way for evidence –any evidence—of Miers’ unreliability.
David Brooks brought us a gallery of her worst sentences ever written. John Fund brought us rumors of scandals yet to come, beginning with something at the Lottery that could end up bringing back the Texas Air National Guard controversy ([perhaps even with the undead Dan Rather?) Others found her support for a resolution urging private affirmative action in large law firms to be proof positive of her unreliability on Bollinger. (This last charge strikes me as among the most irresponsible, as objection to unconstitutional state action easily co-exists with private parties’ decisions to take race into account in awarding benefits, or otherwise there would be no historically black colleges or universities. This is one area where non-lawyer critics of Miers simply have to at least be willing to entertain the possibility that their certainty is wrong, though not their concern over Bollinger.)
Because of punditry’s and new media’s power, there has now developed among the conservatives a deep and ever widening split, which “went critical†with George Will’s and Robert Bork’s intemperate columns of the past few days. I use the phrase “intemperate†because, objectively, they were. Both men tried not merely to persuade their audiences that Miers’ nomination shouldn’t be approved, but also –unsuccessfully judging by my mail—to read anti-anti-Miers people out of the conservative movement. There is a new Tests Act, it seems, for membership in the conservative movement: You have to work for the rejection or withdrawal of the Miers nomination. This reminds me of the “splitters†chorus in The Life of Brian. Great conservatives both, Will and Bork, and the latter has actually suffered for the cause.
But American conservatism is deeply suspicious of aristocracy, even among pundits. I have even seen warnings that the GOP is becoming “populist!†God forbid that, like TR, we actually excite the public’s imagination and approval and keep our majorities intact.
In fact, it is nothing short of astonishing, that Robert Bork would lead a campaign to Bork a different GOP nominee, or that George Will would denounce anti-anti-Miers people as degraded partisans incapable of understanding conservatism. This would be funny if it were not political tragedy, and not for the president, Miers, and her defenders, but for the vast and lasting damage being done to Will, Bork, and the GOP’s new majorities and its new media in the process.
I can’t keep count of the e-mails denouncing me or denouncing NationalReview.com, the center of the anti-Miers movement. I think I am slightly ahead in terms of the target of wrath, but many are just opportunists seizing the moment to denounce me for not seeing Tom “Tommy Bombahama†Tancredo as the future of the GOP, or refusing to heed Pat Buchanan’s new found love for the GOP he abandoned, what, five years ago?. There is plenty of anger all around, and for plenty of reasons. The implicitly anti-evangelical tone of much of the Miers criticism, coupled with the refusal to defend her pro-life views from the assault now underway from the left has raised a very legitimate question for all commentators: Do you really want Roe reversed? Where is that result among your priorities? The suspicion is growing that the GOP elite is really reconciled to abortion on demand but unwilling to announce as much for fear of the political consequences.
If Miers is rejected by the Senate –a remote, remote possibility now that she is being denounced by abortion-on-demand absolutists-- and her successor nominee is either blocked on grounds of their hostility to Roe or, once seated, joins the O’Connor-Kennedy-Souter absurdity from their joint opinion in Casey, the conclusion will be inescapable that just as a moment arrived when a pro-life evangelical approached SCOTUS with a set of values that would favorably influence her to think through the enormous tragedy of abortion, she was shot down by conservative elites more concerned with issues other than protection of the unborn. It would be helpful if opponents of Miers would be careful to outline their views on Roe/Casey in the coming days, and perhaps even an argument on why a different nominee would have been preferred and confirmable on this set of issues.
I do not believe that reliability in decision-making is a sound basis for selection of a nominee for the same reason I don’t believe in close questioning of nominees on specific issues likely to come before the SCOTUS: The rule of law depends on the legitimate belief that the justices and judges are not indifferent to argument. I have lost in court, and have never liked it, but always hated it less when a decision came from a judge whom I genuinely believed had done his or her homework and heard me out. I think a practicing lawyer like Harriet Miers will understand this, as did the Chief Justice –also with a long background in practice—and that she will successfully resist such questions even if it costs her votes.
Thus I don’t know and don’t expect to know, and I doubt the president knows, how Miers will vote on the next Roe/Casey case, and I hope she resists as did Chief Justice Roberts repeated attempts to get her on the record as being already decided and thus indifferent to the facts and arguments that will come her way in such a case.
Which brings me to the last, and actually most compelling of the arguments mounted by the anti-Miers caucus.
Not surprisingly, it arrived first from Bill Kristol. I hate to disappoint my e-mailers who are defending me and denouncing the anti-Miers crowd, but Kristol is easily the smartest conservative writer at work today. (If Libbey or Rove fell to Fitzgerald’s vision, the president or vice-president would be well-advised to summon Kristol. Reminder: Kristol was a great chief of staff to the unfairly beleaguered Dan Quayle.)
Bill’s early argument, since echoed by the most responsible of the Miers’ critics, is that the president missed an opportunity of unique and crucial importance: To force SCOTUS back to its intended role via the appointment of a Judge Luttig or Judge McConnell or a similar credentialed originalist, who, working with the new Chief and Justices Scalia and Thomas, would carry Justice Kennedy with them, and who could then divide up the work or refashioning American Constitutional Law into a coherent, originalist framework. (Please, please, please reverse Lemon and move toward coherence, if only for ConLaw professors.)
In the alternative, this school reasons, the battle over a Judge Luttig or Judge McConnell nomination would, even if unsuccessful, polarize the electorate around an issue favorable to the GOP in 2006.
This is a powerful argument, but it depends ultimately on political judgment, which depends ultimately on facts which most of us do not have access to. And not just facts about whether the Gang of 14 is reliable if a Luttig or a McConnell is sent to the Hill, but also facts about whether crucial votes in crucial states would be affected by two successive white male nominees. This is not an issue easily polled, as it comes down to anticipating rhetoric and races across far-flung states. But I think Karl Rove may be trusted on such matters, even in the absence of clear-cut polling data.
Some anti-Miers writers have argued that it is always wrong to take gender into account when a president nominates for SCOTUS. To which I reply: That’s not what Ronald Reagan thought.
And it isn’t what any serious proponent of conservative majorities in the Congress should believe, or any supporter of continued GOP tenure in the White House post-W. (Imagine Hillary’s stump speech rhetoric on SCOTUS if two, new white males had persuaded three other Justices to strike at Casey?)
Consider the effect on the GWOT if a Democratic Majority Leader begins to order up hearings on all the alleged GOP wrong-doings, including Katrina response, Plamegate and the bogus indictments of Tom DeLay. I have lived that D.C., and forgive me if I don’t think it wise to pursue objectives that might take us back to the days of Iran-Contra hearings and October Surprise speculations backed up by subpoenas, or even the Leahy-chaired Judiciary Committee which blocked John Roberts’ nomination to the D.C. Circuit not for months but for years.
The continued assault on Miers brings the prospect of Democratic resurgence closer, and the anti-Miers people who deny this put their wishes ahead of facts and hard experience.
Three SCOTUS nomination processes have resulted in withdrawal/rejections in the modern era: Fortas, Haynesworth/Carswell, and Bork/Ginsburg. Each president involved either abandoned the effort or was obliged to compromise on essential issues, and all three were deeply damaged politically, as would be Bush by a Miers’ withdrawal/defeat. Conservative critics of Miers will not have the luxury of rejecting the responsibility for GOP setbacks, even enormous ones, if they succeed in their campaign against her.
But the results of their success will not be limited to the damage done to Bush. They have to consider the damage done to the GWOT by the loss of GOP majorities in either house of Congress, or of the presidency in 2008. It is simply not credible to reject as unlikely the reality of the consequences of weakening Bush at this moment. There is this pie-in-the-sky idea that, Miers defeated or withdrawn, the prident will nominate a Luttig or a McConnell, and a great battle will be waged and successfully so, and the GOP will go from victory to victory. Perhaps. I mean, it is possible. Really.
But it is much, much more likely that a defeat of the president, combined with the defeat on social security and the DeLay woes and the MSM’s incessant anti-Bush campaign will in fact birth a 2006 like 1986. It wasn’t pretty then. It isn’t inevitable now.
In fact the opposite is possible. Miers can win confirmation after a respectful, historically appropriate set of hearings. The president will have again demonstrated that perseverance matters not just in Iraq, but in domestic politics as well. There might be another vacancy in the summer of 2006, when a Luttig or a McConnell –or, yes, a Gonzales—would be nominated and the ensuing debate would frame the vote in November. A remade SCOTUS might begin the business of restoring Americans’ trust in their judiciary as modest but competent umpires, to use the Chief Justice’s phrase, of the law, not as a super-legislature, and the candidates of November 2006 might have proof of the merit of that approach to combine with proof of victory in Iraq in an appeal to not only stay the course but boldly proclaim the wisdom of the course.
The GOP’s majority could increase in the Senate by a net of two or three, we might have a Senate without Lincoln Chafee but with Rick Santorum, we might add two to five seats in the House, we might get fences and carrots along the border, a permanent end to the death tax, two more easily confirmed SCOTUS nominees, another 60 to 100 appellate judges confirmed, more tort reform, drilling for oil where drilling makes sense, strong support for Israel, a disarmed North Korea and a hesitant Iran –or even a democratic Iran to match a democratic Syria—and many other wonderful things as well.
But not if we intentionally cripple the leader of the party over a nominee who is competent, of excellent character, and deserving of a fair hearing and not a pre-decision based in other than the reality of who she is and how she answers.
Many of the arguments against Miers are simply bogus, part and parcel of a neoBorking of a fine public servant and accomplished member of the Bar as well as the White House staff in a time of war. The best arguments against Miers are political, and on that basis, can be rejected as unpersuasive after pause and serious consideration, and provided that Miers acquits herself well in her hearings.
Republican senators should immediately begin to be part of the solution to this problem, not abettors of its worsening. They need to defend the nominee of the president that brought them their majority, and to insist that those who are giving them wheelbarrows full of advice take a little in return on the subject of how to deal with disappointments within majority parties.
It's nice to read something from an ADULT with a BRAIN.
The only defense for the nominee I can think of is, "trust Bush." Is that a sufficient defense?
Hugh makes some great points, thank goodness without the usual insults.
However, I still don't think she should have been nominated.
She has no paper trail, she's 60 years old, and were not even sure how conservative she is.
Given the alternatives, it was a sad, sad, nomination.
wife’s
Is there a reason I get funny symbols like above?
Did you bother to read the article?
If so, why are you asking the question.
He lays out reasons why the nomination is sound.
Yes; and sad that so many Repubs are losing theirs because of the Miers nomination.
Get some sleep Hugh, Harriet is formulating an exit strategy as we speak.
I agree--it's extremely nice! Do you have a link to something like that?
http://www.freerepublic.com/focus/f-bloggers/1508069/posts
Hugh Hewitt and Harriet Miers: Jumping the Supreme Court Shark
RedState.org ^ | 10/24/2005 | Blanton
Posted on 10/24/2005 3:32:25 AM PDT by KentTrappedInLiberalSeattle
Hugh Hewitt has jumped the shark. I do not know that I will ever be able to entertain an argument of his seriously again. Suspicion was raised when Hugh backed Arlen Specter for Chairman of the Judiciary Committee. Suspicion is confirmed with Hugh's unyielding defense of Harriet Miers. Hugh has ceased to be a conservative pundit and is now a shill for the administration. While critics of the Miers nomination are willing to give her credit for much, Hugh has apparently ignored all objectivity and closed his eyes to all concerns so that he can be an effective pimp of the Bush administration. Today, Hugh writes:
"I see many on the web are exercised about Harriet Miers' support for affirmative action in the private setting of support for resolutions of the Texas Bar urging quotas in hiring at private law firms. It is not a policy with which I would agree either, but it also not a matter of constitutional law, unless under Brentwood the action of the Texas Bar in urging private firms to set strict goals has converted into a state action. Don't know what Brentwood is? Or the state action doctrine? Not many people do. But those that don't ought not to be confusing ConLaw with the private decisions of private firms while agruing that this policy makes Miers suspect on Bollinger. Now, if she supported a soft line on the Bollinger cases, that would be a legitimate area of concern, but not the Texas Bar resolutions."
First, Hugh must be discounting the numerous reports that clearly show Miers, Spellings, and Gonzales backed the administration splitting the baby in the University of Michigan affirmative action case. In fact, on Ken Melhman's blogger conference call, he was asked about Miers' position and did not dispute that Miers backed the White House's amicus brief in the case, which was widely seen by conservatives as a failed response. The Justice Department wanted to set a clear line on the matter, but when the brief went to the White House, enough water was added to make the amicus meaningless.
There is, however, a larger point of why Hugh has jumped the shark. He says we should give no weight to Miers' support of affirmative action in her position with the Texas Bar. It was, after all, a personal action and a "private setting." How then can we square this with Hugh's support of Miers?
Hugh's support seems to be, beyond trusting the President, based on the fact that people who know MIers say she'll be right on life, she'll have a conservative judicial philosophy, and that she is personally conservative and evangelical. This makes no sense. If Miers is personally supportive of affirmative action, Hugh believes that will not affect her judicial philosophy. But, because we're told Miers is personally conservative, Hugh believes her judicial philosophy will be just what we want. I dare not even contemplate the pains Hugh will go through to explain how personal support of affirmative action and a conservative judicial philosophy mess.
While Hugh should be applauded for unfailingly supporting the administration, pardon the rest of us if we do not want to go along. Thus far, Hugh has managed to cast aspersions on arguments George Will, Judge Bork, and most of National Review. While I can certainly give credence to the idea that we should wait for the hearings to make up our minds, Hugh has gone beyond that and in so doing has lost credibility on the subject.
Were Hugh Hewitt in Rome, he'd have been the first in line to champion Incitatus for the Senate.
LOL!!!!
A giant leap here thinking Blue States would not have legal abortion....
>>>Of the 45 million unborn children who were not born because of Roe,
"wife’s
Is there a reason I get funny symbols like above?"
They show up in the "print-friendly" version of Hugh's article. I copy-pasted without changing-correcting the text.
Hugh should talk to his webmaster.
Poor Hugh hitched his wagon to a dead horse and rode off Credibility Cliff.
..."the conclusion will be inescapable that just as a moment arrived when a pro-life evangelical approached SCOTUS with a set of values that would favorably influence her to think through the enormous tragedy of abortion, she was shot down by conservative elites more concerned with issues other than protection of the unborn. It would be helpful if opponents of Miers would be careful to outline their views on Roe/Casey in the coming days, and perhaps even an argument on why a different nominee would have been preferred and confirmable on this set of issues...
I would not be a Pubbie Senator who voted against Miers unless I was ready to retire.
"It's nice to read something from an ADULT with a BRAIN."
Yep.
Doesn't say much for some of the clowns who posting on this thread.
Did they even read the post by Hugh?
BTW, I am not strenuouly opposed to the nominee. But to defend her, I would like some substantial ammunition.
"The only defense for the nominee I can think of is, "trust Bush." Is that a sufficient defense?"
Did you read Hugh's post?
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