From The New York Times:
Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee, and several Democrats on the committee said Sunday that they were considering calling James Dobson to testify on what he has been told about Harriet Miers, the president’s Supreme Court nominee.
“If Dr. Dobson knows something that he shouldn’t know or something that I ought to know, I’m going to find out,” Specter said Sunday on ABC’s This Week. “If there are backroom assurances, and if there are backroom deals, and if there is something which bears upon a precondition as to how a nominee is going to vote, I think that’s a matter that ought to be known by the Judiciary Committee and the American people,” Specter said.
Dobson, the influential founder of the conservative evangelical group Focus on the Family, has said he is supporting Miers’ nomination in part because of something he has been told but cannot divulge.
He has acknowledged speaking with Karl Rove, Bush’s political adviser, about the president’s pick before it was announced.
On Tuesday, Dobson said, “When you know some of the things that I know  that I probably shouldn’t know  you will understand why I have said … that I believe Harriet Miers will be a good justice.”
Paul Deignan of Info Theory has been pushing the interesting—though fringe—theory that Miers is in fact a stealth pro-choice nominee, running Miers’ associations and her personal ambition through game theory to arrive at his intriguing take:
Empirically, Harriet Miers is most likely to have a judicial philosophy on abortion consistent with those which she associates herself. When Ms. Miers does pry herself away from work, she “spends Washington girls’ nights out with the likes of Secretary of State Condoleezza Rice and former Agriculture Secretary Ann M. Veneman”. Secretary Rice describes herself as a “pro-choice evangelical” while Ann Veneman is also pro-choice. Like Laura Bush and Barbara Bush, the women that surround Miers are uniformly pro-choice in their judicial philosophy. It follows that there is an increased expectation that Ms. Miers is also effectively pro-choice, a judicial philosphy also shared by Alberto Gonzales, the man whose name the president initially floated for the position.
I find this argument dubious. For one thing, the wink and nod Bush keeps using to assure his “base” has to be tethered to something he knows for certain about Miers, and I think it quite likely that he’s been banking on the capital her pro-life stance carries with the social con base (and pro-life Democrats) to galvanize support.
But as I noted elsewhere, I don’t believe a vote against Roe that is simply a vote against Roe — and not, say, part of a coherent judicial philosophy that would have also led her to vote against Grutter or Kelo or Raich—is enough to appease many legal conservatives and small government libertarians and classical liberals, because what they want is a judiciary that functions as it should — not one that functions only to their advantage.
Patterico makes much the same point today is his response to Paul Mirengoff’s piece in the Weekly Standard (which argues, in effect, that conservatives should support Miers because she does not “fall outside the mainstream,” an argument that suggest that the left’s ability to frame the terms of the debate is nearly complete, insofar as conservatives are now being forced to hide their federalist tendencies just to enter the arena of acceptability). Writes Patterico:
Paul is saying that, even though there is a genuine distinction between political ideology and the ideology of judicial conservatism, the public isn’t going to understand this distinction. As a result, voting down Miers will provide a precedent for rejecting conservatives in the future on the basis of political ideology.
This strikes me as naive. Does Paul think that Democrats are going to vote for the next Antonin Scalia? The halcyon days of someone like Scalia sailing through the Senate with overwhelming majority support are over, my friend. That all ended with the defeat of Robert Bork in 1987. The idea that we need to cave on this nomination now because fighting it would set a bad precedent is reminiscent of the arguments used by those who supported the Gang of 14 deal.
I don’t find this a convincing argument. True conservatives should not be afraid of their own shadows. We are not pursuing political ends, and we shouldn’t surrender our principles now on the fear that Democrats are going to twist our position in the future and use it to vote against staunch judicial conservatives. They’re going to do that anyway. Let’s get the good people in now, while we have a chance.
Patterico is right. Miers may not fall outside of the mainstream, but then, who cares? All that matters to me is that she show fealty to the Constitution and put aside all personal ideological impulses in order to interpret the document faithfully—and that she be able to show that she would just that. And, lacking a judicial rack record, I’m forced to look at the record she does have, which thus far suggests to me that she is more in the mold of O’Connor and Gonzales than she is in the mold of Thomas or Scalia.
And this has been my criticism of Miers all along, that that I don’t know that she would separate out her personal political beliefs, and that, because I’m forced to rely solely on the President’s word (and Miers’ as well, come the judicial hearings), I’m uncomfortable with the choice—especially considering the number of choices that were available to the President that would have met the conditions of demystifying the Court and putting forward a reliable and sound textualist. Because the President’s suggestion the Alberto Gonzales meets that criteria is, I’m afraid, enough to allow me the luxury of questioning his judgment on these matters.
Again, it might turn out that Harriet Miers is the most conservative Justice ever. But that is incidental to the process, which has become about politically maneuvering and stealth placement rather than a full airing of issues and a debate on how the judiciary should function.
As with the issue of race in this country—an issue that has kept conservatives afraid to open their mouths, to the point where the White House was unwilling to back Bill Bennett (another telling mistake, and one that didn’t inspire much confidence in their scruples, to be honest)—the issue of judicial philosophy should be spoken about candidly and debated openly. Let Chuck Schumer explain to the American people how his insistence that he must know the outcome of a decision before he votes on the person likely to assure that outcome is any different than, say, fixing a fight. Let Dianne Feinstein explain to the American people how, sometimes, the Supreme Court just does things for our own good that we wouldn’t do legislatively—even if the Constitution tells us that we should be deciding on these things legislatively.
I welcome the debate. This country has devolved into a soundbite culture; should we ever wish to rescue it, we need to show its people the courtesy of trusting them to rise to the occasion and join the debate.
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More, from John Fund.
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update: Fund talks to Hugh Hewitt: “Six bombshells await us about her, including one on her Texas Lottery Commission work” (h/t Ardolino)
That’s a big assumption with no verification. Bush cannot run again even if he wanted to. If he was concerned about the base, why push Gonzales? His father sure didn’t mind the pro-life base well.
I don’t see what Bush has done to put himself and his credibility at risk. He certainly does not even go so far as to promise to inquire (well short of the litmus test that all Dems promise their base).
Face it. GOP Presidents haven’t been faithful to the pro-life base. Only a fool would continue to wish upon a star.
Finally, note that I am only saying that Bush is effectively pro-choice, not strictly pro-choice. A pro-life president would move the national debate in the pro-life direction, not just utter token phrases of support here and there.
I’ve been staying away from the Miers thing..all the rending of garments and gnashing of teeth, and I really don’t know anything about her except that she’s been GW’s leagel beagle for years and he trusts who he knows.
But I’ll say one thing… We can thank McCain for the prospect that even a President with a majority in both houses is stymied because it now takes 60 votes for confirmation, not 51.
Like ANYONE, not just GW, is going to send anything BUT “stealth” candidates under such circumstances.
McCain even breathes about running in ‘08 and I’ll personally stump for any one that opposes Cap Queeg.
Some of my biologists friends thinks that she is a pro-creationism/ID nominee, and that’s the insider info Dobson has. Scientists can be a little loony, though.
AHHHHHH! GOOD GOD! Guess what I found! It’s the Say Anything Girl!
Her name is Flavia. What can I say? The circle is now complete.
Oh, and that dude from the Say Anything blog stole her picture and just put it up on his site. I’m guessing she doesn’t even have a blog!
/sarcasm
//Sorry for hijacking your post, Jeff.
Well, Paul, the problem we’re having with Miers is one of verification, though to be honest with you, I don’t care where she stands politically on Roe; I’m more concerned with how she reads and interprets the Constitution.
But I think it’s a bit naive to think that Dobson would be throwing his support behind Miers without knowing that she’ll back his social agenda in some way. Sorry, but what you call “a big assumption with no verification” I call an educated guess based on what I know of the parties in question. Bush purportedly lives in terror of nominating another Souter. Which is why I think Miers is likely to be staunchly conservative on certain issues, and O’Connor-esque on others. For Bush, she’s the perfect candidate because she mirrors him politically; but for me, she’s likely to be a judicial activist who leans right.
Jeff,
That was my primary concern (that Miers is a crony with no credentials as a strict constructionist). Since this is obviously true, we still have to address the problem that there are plenty of people who will blindly trust a rumor for partisan reasons (wishful thinking) rather than sort through the facts. Thus the Birds of a Feather analysis.
I could trust Roberts because it is easy to see he has a consistent judicial philosophy that is well established. Miers–no way. She has O’Connor written all over her.
On Dobson. What’s to say he isn’t a sucker? If the evidence was so rock solid it would not need to be hidden. Last I read he was still praying about it. In any case, I don’t take hidden assurances to others as my reason to suport or not support someone. This is supposed to be a democracy and I will insist on treating it as one for as long as I have breath to shout, “Suckers!”
If Bush wanted to nominate a strict constructionalist he needn’t look far: Luttig, McConnell, Garza, Owen, Clement, Jones, Pryor, all are fine. The fact that he hasn’t is more reason to be suspicious.
I am suspicious. I’m just more suspicious of her on affirmative action and other “compassionate conservative” stances than I am on abortion, which, as I say, doesn’t even concern me, provided she looks at the law. Have to see where she is on stare decisis, I guess.
I’m just sad about what this constant abortion fighting has wrought. How much of our political process does Roe v Wade chew up? How much money do special interest groups (including politically-minded newsources) make over the fighting?
We’ve got a political atmosphere where there is either an ugly show down or a stealth nominee. Neither is, in my opinion, for the good of the country but only for the good of the ideologues.
I’m exhausted by it.
It’s ironic, perhaps, but I think a filibuster might actually help demystify the process and return it to normality by forcing Americans to pay attention.
I’m not sure it’s such a bad thing, to be honest. As it is, the process is being held captive in a way by a 14-person group who holds the ultimate power; they can decide who is “in the mainstream.”
This is the thing. With Democrats it’s ALL about abortion. With Repubicans it’s all about a lot of things. Some of us care more about property rights, others gun control, others abortion.
but with the Dem’s it is all about abortion. Every damn time.
And it is exhausting.
Well, we should all learn by now that this will go on and on and on until Roe gets sent back to the penumbra from which it emaniated.
And it will only get worse.
Why are you all agonizing about Miers? If there really is such a “solid conservative base” in the Senate, as Rush Limbaugh keeps saying, then rejecting her nomination is virtually guaranteed, right?
(Oh; you mean that the “R” behind some Senators’ names doesn’t stand for “Right Wing”?…)
It will get worse at first. But the thing is, the people never decided this. They never got to debate it. It was just decided by 9 men and that was that.
We on the pro-life side want the debate. We want to present our side, and let the pro-choicers present their side and let the people decide.
People ask me, “So what if the people decide to have the same kind of law?” (I don’t believe that would happen, but anyway…) At least I would know that this was a decsion that the PEOPLE made. I may not like a lot of laws, but if the people voted on it or voted for people to further that law, then that is democracy. I have to live with what I disagree with because of freedom.
Does that mean I would stop trying to change people’s mind or change the law? No. I will always do that. Fight the good fight. But it wouldn’t be the FOREMOST issue for both parties.
Sometimes I wonder what the political landscape would be like if there was no abortion to deal with.
Once again, I am far from crazy about the Meirs nomination. But there are three things that Bush has the inside info on that we don’t.
1. Arlen Specter coming back to bite him on the ass. From what I’ve seen him say publicly, I wouldn’t be surprised if he told Bush privately that he would do his best to not allow any of the expected nominees to make it through the confirmation process. The man is an idiot, and no one should put this past him.
2 and 3. McCain and the gang of fourteen. There is absolutely no way Bush could win even the “nukular” showdown with McCain’s arrogant ass planted directly in Bush’s path. Don’t kid yourselves. McCain is the boss on the gang, and he has never had much use for the Constitution (McCain-Feingold, anyone?). Once Bush has lost the “nukular option”, it is probably lost forever and there would be little hope of Bush getting ANYONE confirmed who is not at least as left as O’Connor. The Democrats have tried mightily to change the rules, and, as far as I can see, McCain is right in the thick of it. How could ANY Senator of concience try to cynically PREVENT a return to the two hundred+ years of unwritten Senatorial tradition? Too bad we can’t get a “take-over” on Ginsberg and a few others.
I am itching for the fight as much as anybody, but I have long since learned that Bush (Rove) is no political dummy. Even though I feel let down, or even betrayed, by this nomination, the reality is that we know nothing about the REAL “behind the scenes” politics that are in play.
I just have to guess that Bush sees an unaffordable loss if he goes into this fight knowing that his troops are likely to dessert him when the heat is turned up. I can’t bring myself to believe that the man who has nominated such excellent Appellate candidates would sell us down the river on a whim.
Yes, I am pissed, but I have to believe that there is more going on here than meets the eye.
Blaming the Senate for a nomination that Bush has not put up is a gutless lie, esp. after the painless Roberts confirmation.
Put up a good nominee. Stealth is not tolerable and neither is a crony–the worst of all worlds.
Eeek! Dean, that’s scary. I had just assumed that Dobson got the “anti-Roe guarantee card” and was happy.
I don’t understand conservatives who want to support this nominee simply because they think she will vote their way on the political issues of the day without a settled, consistant judicial philosophy. Judicial activism is a problem from the right or the left. The republicans’ stated abhorrance of judicial activism is what attracted many libertarian types like me. The “but she’s a pro-life evangelical, so she’ll vote with us” defense really chaps my hide.
Word is fall–as in why did I fall for it?
But I guess my problem is that it is still like playing soccer on a baseball diamond with football referees. You’re right, the power shouldn’t be with 14 Senators over judicial appointments. The discussion shouldn’t be via filibuster over judicial nominees. Then we end up having the debate about whether Roberts released enough documents or whether Miers is friends with Dobson, and never debate the real issue that we all know is at the heart of the matter.
Legislators have the power to make the proposals for laws. Bring it on. Have the real debate on the floor of Congress. Do we want a constitutional right to privacy? Do we want a constitutional right to an abortion? Should we make it illegal to have an abortion after 26 weeks? What do they really think their constiuents want, and how can they legislatively get us there?
But in my opinion they are abdicating their power to the judicial branch, hoping to place (or block) the judge that will pull the hidden right out of the constitution like a pig rooting for truffles. Maybe they are all too afraid of losing the battle (and the $$ that goes with it).
Basically, this disaster is fallout from the McCain-led ‘Gang of 14’ deal earlier in the year. Tony Blankley hit it on the nose.
I don’t want a sock puppet or a caped crusading social engineer of any political persuasion on the bench. I want an excellent, experienced judge! There’s no good reason for this to be such a byzantine process, as some have suggested it is, nor a hypocritical farce, as it’s starting to look from the outside.
Dobson has secret knowledge of why she’ll make a good justice? That’s rather like that bizarre episode during Watergate, when Senator Hugh Scott claimed secret knowledge that would clear Nixon, but wouldn’t say what.
Myself, I think Miers has some compromising polaroids of somebody in flagrante delicto with a dancing armadillo.
Turing = such, as in Wouldn’t be the weirdest such thing that’s happened in Washington…
A fascinating post today by Jack Balkin, a lefty law professor at Yale, which I wrote about.
Balkin cites a new book by two political scientists that gives numerical evidence of an intuitively obvious point—that judicial nominees with excellent credentials can often get the votes of even ideological opponents but that nominees with mediocre credentials basically get the votes of ideological supporters and almost no one else.
The consequence is a stealth nominee has to have excellent credentials. Miers, with minimal qualifications, will lead senators to weigh more heavily the ideological considerations. She becomes very vulnerable as a result.
Jeff: “All that matters to me is that she show fealty to the Constitution and put aside all personal ideological impulses in order to interpret the document faithfullyâ€â€and that she be able to show that she would just that.”
My sis is the lawyer, so forgive the beginner question. Certainly, strict constitutionalists can differ from one another in their judicial opinions, but isn’t the anticipated range of their opinions fairly prescribed on big hot-button issues and known well enough ahead of time as to constitute a de facto ideology? Justices showing strict “fealty” to the Constitution should have major problems with affirmative action, Roe v. Wade, Kelo, etc., and we know that. Seems that a reliable “sound textualist” would give most conservatives exactly what they want because the process for which we/they advocate is part of the conservative (libertarian/classical lib) ideological wish-list (check!), and because this process would yield political outcomes most conservatives hold to (check!).
Word is wrong. That can’t be right.
c —
It’s a chicken / egg question. I’ll turn it around and say that we want is that the Constitution be followed. If that’s a de facto ideology, that’s a product of the Constitution itself.
Is Miers really Shannon Elizabeth in disguise or are you talking about her “judicial rack record” for some other reason?
RWSparkle (I love that!!)
I agree. Although I’m more pro-choice than pro-life, your point stands.
I’ll see your chicken-and-egg and raise you a have-our-cake-and-eat-it-too, Jeff. With strict constitutionalist justices, conservatives would get the process they think is constitutionally correct for the SS to follow (political ideology), and they’d also get many/most outcomes they both want and have anticipated from this process (ideological politics). Or something like that.
Great post. You’re helping to keep the debate over Miers more elevated and on point by discussing judicial philosophy also by remaining a bit open to possibility.
I agree that the Supreme Court needs to be put in its place as the humble interpreter of what the Constitution says (in fact, remarkably little), rather than the as the Left’s popular deconstructor of what The Bill of Rights really means, in their experience as a husband and father, single mother, or black, homosexual former sharecropper.
But the problem is that confining the courts to their proper role is no longer politically feasible. Nearly half the electorate incomprehensibly insists that our two hundred year old Constitution demands the implementation of their new-agey, progressive social agenda. (Should not alleged “new circumstances” demand new laws, rather than new, non-democratically-approved interpretations of old documents?)
The Left has sold its soul to the judicial branch–having come to rely on the Supreme Court to implement its social platform and basically renouncing the democratic process. And with that expectation, judges and justices have been accepting that role–indulging in their unfettered power to dictate social progress, effectively asserting that, by their interpretation of the Bill of Rights and the equal protection clause, no political body but the courts can legislate morality. And considering human nature, when the power is there for the taking, it would require super-human restraint to resist molding the law in the image of your own predilections.
The fault for this disaster is more with Congress than with the Courts. Congress has been insufficiently jealous of its power to legislate. Because of this, much of the liberals’ social legacy teeters precariously upon each new Supreme Court nominee. Now liberal Senators paradoxically seek to assure themselves that nominees will continue to hold vast areas of social policy unreachable through the democratic process.
I think this high-stakes gambling of our freedom and democracy will continue so long as the electorate perceives of the Court as a liberal activist superlegislature. The only way to change this perception is for conservatives to play the game and make judicial activism as distateful for the Left as it has been for the Right. Pack the court with conservative votes and watch the Liberal politicians line up to give us a Civics lesson on the proper, limited role of the Court.
Then maybe we can find some bipartisan agreement on what constitutes a good Supreme Court justice.
Hmmm.
1. Miers has worked in the Bush campaign and has been associated with Bush, but she wasn’t his lawyer for “years and years”. She has been the President’s Counsel for 7 months. Prior to that she worked, and according to David Frum *failed*, for Andrew Card.
2. Whether or not Bush realises it, he has made a *personal* guarantee of Miers career to the conservative base. When he said in a speech that he knew her and trusted her. When his representatives pushed the meme that we should “trust” him because he knew her so well.
He made an absolutely unshakeable pledge for her good behavior. And this is something that I think everyone should either acknowledge or debate.
As for Bush not caring for what happens after he leaves office, that’s unlikely. Clinton has had a better career after the White House than during it. Bush had better hope like hell Miers doesn’t blow up in his face. The number of people looking to buy tickets to one of his post-White House speeches might be very very low.
3. What strikes me about Miers is that she has never done anything remotely conservative and her involvement with Grutter vs Michigan Law School is a serious O’Connor moment.
4. Everyone who is in favor of Miers should also understand they are going to take the blame, along with Bush, if Miers turns out wrong. If she is as goofy as O’Connor has been then we’ll have 30 frigging years to endure this sort of crap.
5. No Republican President will EVER AGAIN be trusted on judicial nominations to the Supreme Court.
Not fucking ever!
6. The Gang of 14 were able to pull their shit off because Frist, Bush and the rest of the GOP leadership didn’t even try to address the filibuster when they had the chance. That it came back to bite them, is their fault and they should be given absolutely no slack for it.
7. Say what you want about liberals and Democrats. But they’ve accomplished more as a minority party than the Republicans have as a majority party. They might be complete freaks, but they’re *effective* freaks.
And continuing to support ineffective gutless schmucks in the hopes, the hope, of eventually getting something done is the behavior of dogs.
Dogs will lick the boot when it has kicked them.
Are you a dog?
Um, if Miers had argued against ANY consideration of race in Grutter vs Michigan Law School, we’d debating which of Kerry’s nominees should get the nod. Ohio and several other states were that close.
Would Kerry go with a judicial unknown like Hillary, or someone reliable from the Ninth Circuit?
Perhaps Bush likes Miers because she’s not politically stupid.
George,
It always seems to come back to the Principles vs Possibles. Being pure but losing, to some, is most important.
Or the web meme that perfect is the enemy of good.
Attilla posted:
<that judicial nominees with excellent credentials can often get the votes of even ideological opponents>
I think the key word there is often, which is not the same as always. There’s a good reason why the word “borked” became a verb during the 80’s.
Lord knows Miers isn’t overly qualified. There are literally tens of thousands of lawyers, not judges, lawyers, the country over who can claim to be politcally connected without having committed any offense that would get them disbarred. (Those appear to be Ms. Mier’s chief credentials to me.)
But the venom from some of the folks on the deep right (NRO’s The Corner for example) has turned me off. And anyone who thinks that the folks at the corner, or for that matter most conservative commenters, are particularly bright only need remember the Katrina coverage.
Save for Jeff, most folks on the right butchered it, especially the folks at the corner. Rod Dreher, remember? So why should their reasoning have improved in this instance?
I’m willing to listen to her. Then we’ll see. But she certinaly has a lot of nothing on her resume to overcome.
The NRO, I’m not sure its worth paying much attention to anymore. That’s one of the “lessons” I learned from Katrina.
Hmmmm.
“Um, if Miers had argued against ANY consideration of race in Grutter vs Michigan Law School, we’d debating which of Kerry’s nominees should get the nod. Ohio and several other states were that close.”
Really? Care to prove that assertion?
Good point, Turner. I have vivid memories of exit polling in Ohio where Bush voters cited the Administration’s stance in Grutter as the deciding factor.
Yes, the same exit polling that had Kerry winning by 10%
Does anyone else find this quote amusing?
Hmmmm.
“Good point, Turner. I have vivid memories of exit polling in Ohio where Bush voters cited the Administration’s stance in Grutter as the deciding factor.”
Really? Got proof?
ed – To quote Foghorn Leghorn, “That’s a joke, son, a joke!”
Hmmm.
“ed – To quote Foghorn Leghorn, “That’s a joke, son, a joke!—
Ahh. Sorry. There’s been very little humor about this subject for quite some time now.
Frankly I have this terrible feeling that Miers is going to be confirmed and then immediately show her true nature to be liberal rather than conservative.