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Thursday, October 13, 2005

The Problem with Harriet

I've read a lot of columns on Harriet Miers over the last week or so, but none of them really hit the nail on the head when it comes to my personal problem with Harriet Miers. I think I've finally come across one that does.

In the linked article, Andrew Cline points out that the "Souter Problem" is an issue with the Miers nomination, but it is not the key issue. Overall, I think Miers is likely to vote as a politically conservative lawyer from Texas would generally be expected to vote, but that isn't really the issue.

The bigger issue is that we don't know how she might approach a legal decision, and in particular, we don't know whether she would approach a constitutional decision as a judicial conservative. If she's confirmed, the core of her job will be to provide guidance to the lower appellate and district courts as to how cases on similar, but different, facts should be decided. She has never sat at a district court or appellate court bench at the federal or state level. Is that a disqualifier? I think not. Would it be preferable? Would a person who has actually been forced to apply the vague rules laid out in prior precedent be likely to have valuable insights into how a given legal standard might be improved? Generally, yes. As far as we know, Ms. Miers has never spent a great deal of time weighing the interplay of intricate constitutional issues. Intricate constitutional issues rarely come up in the kinds of matters generally handled by a downtown corporate lawyer in Dallas, Texas. Given that the most important aspect of the job of a justice is weighing these issues, would a person who has spent a substantial portion of his or her life weighing and analyzing these issues be preferable to a person who has not? Generally, yes.

This judicial conservativism issue is bigger than Harriet Miers, just like our constitutional structure is bigger than any Supreme Court justice. A judicial conservative understands this fact, but our confirmation process has made it almost impossible to determine whether a nominee is a judicial conservative. During the Roberts confirmation, Joe Biden made some good points regarding what has come to be known as the "Ginsburg Rule". Under the Ginsburg Rule as interpreted by Roberts, a judicial nominee is apparently not under any obligation to answer any question that may impact or reflect on a decision he may be asked to render from the bench. I think the Ginsburg Rule collapses into absurdity if it is applied too broadly, and I think Roberts at least ran the risk of doing so, as Biden complained of on numerous occasions. The senators are asked to vote on the propriety of the President's nomination, and I think the senators have a right to some real answers as to that nominee's thought processes. No, they aren't entitled to a specific decision based on a specific set of facts, but I think they are entitled to answers regarding, for example, the nominee's opinion as to the best and worst reasoned prior decisions. For example, if I were a senator, I'd like to know whether a nominee agrees with the Lopez decision. How does Lopez reconcile with Wickard v. Filburn? How does Raich reconcile with Lopez? Was the Kelo case rightly decided? Why or why not? What is the proper scope of the Establishment Clause? The senators and the public are entitled to know these answers. I really believe that.

If open and honest debate on a nominee's views of the Constitution makes the nomination process more difficult for the White House, I'm sorry. The President has a job to do. He has an obligation to do it well and to nominate the BEST candidates, rather than the ones who will be the easiest to confirm. Bush is in that White House because of the combined efforts of literally tens of millions of people, many of whom supported him based largely on his commitment to nominate justices "in the mold of Thomas and Scalia." That pledge can only be reasonably understood as a commitment to nominate judicial conservatives rather than political insiders. We deserve for the President to make good on that pledge. If we rallied behind him in 2000 and 2004, why does he think we wouldn't rally behind him when the rubber meets the road?

UPDATE:

It's 3:47 am, and I can't get to sleep because I am SO COMPLETELY FUCKING PISSED OFF at George W. Bush.

A leftie posted on David Frum's blog raised a good question: Why should we expect much better from W? Isn't Harriet Miers really a judge "in the mold of George W. Bush?" I submit that's a good question. Taken at the age of 40, Miers' resume was absolutely stunning compared to George W. Bush's. Other than Harriet Miers, no one I can think of has asserted that W is the smartest person they know. Bush ran a few business into the ground before pulling together the buyout of the Texas Rangers with some money from big donors in the early 90s. What W brought to the table there was being the son of the President. Bush and the other owners grew the Rangers largely on the backs of the local taxpayers, who built their stadium for them. A few years later, W's the Governor of Texas. His number one attribute was not being Ann Richards, and she would've beaten him if she hadn't made the monumentally stupid decision to veto a concealed carry bill. In Texas. Idiot. So, Bush is smart enough to not veto the concealed carry bill. Next thing you know, he's running for President. Near as I can tell, he got the GOP nomination by virtue of not being John McCain (who is just...wierd). Then he barely wins the presidency by virtue of not being Al Gore (who is even wierder than McCain). Four years later, Bush wins a second term pretty much by virtue of not being John Kerry (who's right up there with McCain & Gore on the wierdness scale). And now here we are. From my perspective, Bush is good at giving speeches with the right conservative talking points, but awful on delivering any actual conservative substance outside of his tax cuts. The rest of his policies have either been Democrat-type policies or basic pork.

As a side note, I've heard some on the left submit the war in Iraq as an example of a "conservative" Bush policy, but foreign policy has never really been a clear left-right issue, and going to war in Iraq certainly wasn't being clamored for by the conservative base. Although vigorous retributive military action against identified enemies (e.g., WWII, Afghanistan) has long been a tenet of American conservative principles, preemptive wars of liberation (e.g., Iraq) have not. Bush took the lead on Iraq, even though others expressed serious concerns about both the policy and the strategy. Bush and Rumsfeld slashed troop deployment levels over the objections of their generals, and our troops and the Iraqi people are still paying the price. If we manage to succeed in this endeavor, we will have replaced a secular tyrant with a democratic government in a nation chock full of Islamic radicals. This may not be an improvement. If we fail, we will have replaced a secular tyrant with a new Taliban. This is definitely not an improvement.

At any rate, there is not much in the makeup of George W. Bush which would lead anyone to believe that he's a conservative president "in the mold of Ronald Reagan." He's not even "Reagan lite." If Reagan were a tall glass of Guinness, George W. Bush would be a short glass of Hawaiian Punch. I don't know who wrote Bush's speeches promising justices "in the mold of Thomas and Scalia," but I seriously ddoubt it was George W. Bush. Whether it was or not, W has conclusively established that whatever those words meant to him at the time, they meant something very different to his supporters.

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