Reacting to this Richard Bennett post, which argues that the Miers nomination is less about overturning Roe (which dubious decision the Right relies upon to maintain the indignation that fires up the base) than it is about appointing to the court a judicial activist whose opinions on certain key issues will steer the court to the right (he suggests the Schiavo case is the social right’s new litmus test), Cathy Young writes:
But why does anyone think that Harriet Miers will rule on the basis of her “religious credentials” rather than follow the law? Aren’t the religious conservatives who now seem to be pushing this notion actually promoting a noxious stereotype about “people of faith”? Reality check: Judge George Greer, the Florida judge who originally issued the order to withhold artificial nutrition and hydration to the undead body of Terri Schiavo, is a deeply religious conservative Christian.
Meanwhile, John Fund reports that two personal friends of Miers’s, both sitting judges in Texas, personally assured James Dobson and other religious right leaders in a conference call that Miers will vote to strike down Roe v. Wade if she has the opportunity. [see here for a different take – JG]
My own hunch is that Miers is a pragmatist, not an ideologue, and that she will sorely disappoint the theocons who have bought into the “she’s one of us” brand of identity politics.
[…] My hope is that she will get confirmed, and will quickly show herself to be a member of the independent judiciary—not a loyal sevant to any leader or movement.
Just call me Ms. Rosy Scenario.
Well, one of the reasons certain people are pushing the idea that Miers will allow her religious views to color her judicial temperament is because the White House, in a bald and desperate maneuver to shore up support for the nomination, hinted as much when they started touting her evangelical background—a move that upset many legal conservatives and even some social conservatives who felt the move condescending.
But in short, let me note that I think both Young and Bennett are correct. And it is precisely because they are both right that the Miers nomination is so juridically problematic.
That is, I think Ms Young is absolutely right about Miers being a pragmatist. But whereas Cathy seems to think pragmatism will mark Miers as an independent thinker and an effective jurist, as those of you who’ve been following my posts on the Miers nomination know, my own feeling is that it is precisely such pragmatism (in that it is properly a political philosophy) that provides the greatest worry for legal conservatives with regard to a Miers appointment, and that which in the end will allow for the very kind of rulings on particular social issues that people like Richard Bennett fear (though I personally believe she’ll prove to be liberal on a number of key issues like affirmative action and Title IX, while she’ll prove most “conservative” by strongly favoring the Executive branch in rulings regarding the President’s war time powers).
In that way, Miers is not far removed from O’Connor—and so she is, under a certain understanding of the nomination process (the one favored by Democrats), the perfect replacement pick: she is the “swing vote” the Dems demand; but on certain issues, the President is convinced she will reach a particular conclusion and will (pragamatically) work backward to assemble a legal justification for it.
As I’ve argued all along, the problem with Miers’ record is not that we don’t know how she’ll vote on particular issues (when Roberts was nominated, I criticized Ann Coulter and others for demanding to know such things); rather, the problem is that we have no way of teasing out a judicial philosophy from her record, which means we must rely on Bush’s word, and on whatever we’re able to glean from her political record.
Bush assures us he knows Miers and has hinted that she shares his political viewpoints—something he assumed would hearten his base, because he incorrectly identified that base on judicial issues as social conservatives of the Dobson school. But the people fighting this nomination are those who aren’t interested in an outcome-based judiciary. Instead, they are interested in someone who will reach favorable (to the conservative cause) decisions based on a specific judicial temperament and way of reading and interpreting the Constitution that will necessarily lead them to those decisions.
In short, they want intellectual vindication.
Richard Bennett’s theory is interesting, but it gives the White House way too much Manichean street cred, while at the same time suggesting it is as duplicitous as the Kos Kidz dream it to be.
No, I think it much more likely that Bush believed conservatives would understand the need for a stealth pick—and that they would accept Miers with a wink and a nod because she is an evangelical.
He guessed incorrectly. Which doesn’t mean Miers won’t be confirmed: unless the Dems come out strongly against her (and give dubious Senate Republicans cover for voting against her), I believe she will be. But it does suggest that legal conservatives are no longer willing to be told that their judicial philosophy is something that needs to be disguised.
One issue that bothers me is that the business community likes her because she is a “pragmatist.” Um, some of the most mucked up decisions by SCOTUS come in areas such as ERISA law, environmental law, bankruptcy law… basically all the pure statutory interpretation questions. We don’t need a “pragmatist,” we need someone who will force Congress to draft better laws by limiting their rulings in these areas to specifically what the statutes say, instead of creating implied causes of actions or other patchwork remedies, all while tiptoeing around other issues that leave gaping questions open and promise more litigation. I associate that approach with the “pragmatist” O’Connor, always looking to balance things and worm around the text. Miers strikes me as someone who will do pretty much the same thing. So the business community apparently wants more vague laws and more litigation, all in the name of pragmatism. Wonderful.
Ah, Nancy. Yum yum.
Careful with that axe, babe…
Wo-man. Whoa-man.
“Hello everyone, I am a park ranger and I will be leading you on the tour. All of the park rangers here at Alcatraz were at one time guards, myself included. My name is John Johnson, but everyone here calls me Vicky. Will you please follow me.”
Now I shall go weep for all the hilarious movies Phil Hartman didn’t live to make.
Now that Fund has dropped his bombshell about that Whitehouse-arranged call to assure the evangelicals that Miers will “absolutely” vote to overturn Roe, do you still think she’ll be confirmed, Jeff?
Seems to me that notion will offend two different groups: Democrats as a whole, and conservatives who are looking for, as you put it, vindication and congenial outcomes based on a proper reading of the Constitution, itself based on a a correct judicial philosophy, not a political predisposition.
It’ll be interesting to see where the Dems go with this, Bill.
I think many of them (including Jeralyn Merritt) think Miers is the best they can hope for. So maybe (borrowing Richard’s thinking) the Dems are less concerned with the overturn of Roe as they are with keeping the issue a point of difference.
We shall see. Fund’s revelation puts the Dems more on the spot. Thankfully, legal conservatives registered their complaints before they knew either way—which speaks well of them, I’d suggest.
Tony Giardino: Excuse me sir, I’m with the San Francisco police department, this is official police business. I would like to commandeer this vehicle!
Charles Grodin (Commandeered Driver): No.
Tony Giardino: What do you mean, “no”?
Charles Grodin (Commandeered Driver): I happen to know for a fact that you have no right to commandeer my vehicle.
Tony Giardino: Please, can I commandeer this vehicle?
Charles Grodin (Commandeered Driver): No.
Tony Giardino: You’re just not going to bend on this commandeering thing are you?
Charles Grodin (Commandeered Driver): No.
What the hell is “pragmatism” anyway, in the context of a Supreme Court legal opinion?
Isn’t that supposed to be the one place in the entire government where practical concerns are set aside so that principles can be examined, explained and applied? Isn’t that what they are paid to do, their whole reason for being? Isn’t that the source of their basic credibility? Isn’t that the source of the legitimacy of their power?
“Pragmatism” seems to be a euphemism for “disregarding the principles that you claim to hold so that you can make a ruling that serves some other, undisclosed purpose.”
Pardon me whan I say that I’m pretty fucking sick of living under illegitimate legal opinions masquerading as law.
Bill —
Here’s more on the Fund revelation from Patterico and Beldar.
Isn’t W the most Manichaean president ever?
Heh. “So Charlie tells us you’re a bitcher!”
Hey, I’m a big So I Married an Axe Murderer fan myself.
Check the update on my post for the latest twist on the Fund bombshell.
“HEEEEED! Pahnts, NOW!”
Hmmmm.
If she does turn out to be another O’Connor, you’ll be able to hear conservatives shrieking from 5,000 miles away.
I almost wish it would happen so I can enjoy a bit of schadenfreude. I expect the number of people screaming at Hugh Hewitt to number in the tens of thousands.
So with Bush being able to fill two Supreme Court seats we just end up with a push?
Dammit!!!!! No wonder conservatives are agitated. This will probably be the only time for a very long while that there will be any hope of changing the legal course this country has been on since FDR punked SCOTUS to get his New Deal.
The longer the decisions that the activists on the bench have made stand, the harder it is going to be to even contemplate reversing them. Not to mention the demoralization that comes from thinking that it’s just going to be business as usual when it comes to Constitutional interpretation.
So Miers might vote to overturn Roe, well whoopty-freakin’ do. As if that one decision is the sine qua non of the opposition to judicial activism.
Jeff, I’d be willing to put more credence in the “call doesn’t mean anything, it’s just personal opinion from judges that don’t really know,” except I think that is blather. I think it is pretty obvious the call was set up by Karl Rove, in order to present those two opinions as being dispositive as to what Miers will do with Rove. It doesn’t matter that Patterico and Beldar can find deniability. So what? But the purpose of the call was not to tell Bush’s religious backers that nobody can or does know how Miers will rule on Roe. It was to tell them that these two judges did know. And, not incidentally, to tell them that Bush himself knows.
Could be, Bill. Though I’m still not sure how she would actually vote, assurances notwithstanding.
Of course, it doesn’t really matter to me. What matters is how she gets to her decision legally. Some interesting discussion here.
Harriet Miers, who wound up in the middle of a political firestorm after President Bush nominated her to the Supreme Court in 2005, is rejoining the Houston-based law firm of Locke Liddell & Sapp.
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Nikimathew
http://www.shepelskylaw.com