The Washington Post makes available the full text of a 1993 Harriet Miers speech that has the cyber elites in a bit of a frenzy today.
Virginia Postrel, for instance, notes:
For whatever reason, the president has picked a woman who not only has no constitutional or judicial experience but even in her business practice has demonstrated no interest in the law as anything other than a source of billable hours. At 60 years old, she appears never to have had a substantive conversation about law or policy with any friend. She comes from a closed and cronyish legal and business culture and appears to have gotten ahead through a combination of networking, nose-to-the-grindstone diligence, and willingness to do her law firm’s management, rather than legal, work.
Her selection is an insult to women, to evangelical Christians, and to corporate lawyers. Is this really the best these groups have to offer to U.S. Supreme Court?
(h/t Daniel Drezner)
And here’s Ramesh Ponnuru, writing at the Corner:
There are a lot of ways to connect the themes of judicial usurpation and legislative abdication [a theme addressed in Miers’ speech]. You could adopt the argument that legislatures are to blame for not reining in the courts (an argument which I think is generally sound). You could go on to note that legislatures have not sought to reclaim their powers because they are perfectly happy to see the courts get the blame for tough decisions.
That’s not the argument Miers makes. The argument she makes is that the courts can’t be blamed when they are forced to step in to resolve problems that elected officials have failed to resolve (e.g., the problems of school funding and low-income housing siting). That is a very standard argument, usually associated with liberals. Eliot Spitzer, for example, often argues that it is necessary to pursue anti-gun policies through the courts because legislatures have failed to act. But it’s hard to see how the courts are to distinguish between a) a legislative “failure to act,” b) a legislative decision that there is no problem demanding solution, or c) a legislative decision that solving any problem would create new and greater problems. Any act of judicial usurpation can be described as a reluctant response to the legislature’s failure to enact what the judges wanted them to enact.
Miers may have modified or reversed her views since then, but the speech strikes me as an example of the kind of mindset that one does not want in a Supreme Court justice.
[My emphasis]
Precisely so. Miers is certainly correct to scold the legislature for punting on certain issues. But she goes beyond that, and therein lies the problem. In fact, I’ll take it one step further than Ponnuru and argue that such a judicial philosophy as the one revealed by Miers in her speech necessitates judicial activism inasmuch as it relies for its force on knowing just when it is appropriate and necessary to make an end run around a legislature—which in turn relies on extra-legislatively selecting those issues that need redress. This is the judicial thinking of a philosopher king and a judicial pragmatist. And given what we know about Miers political impulses, one can reasonably ask just how much she’d differ from O’Connor on Grutter, or Powell on Bakke.
Speaking of which—K-Lo highlights this bit from the Miers speech, which I find particularly troublesome:
We undeniable still have a justice system that does not provide justice for all as provided by the Pledge of Allegiance. One justice for the rich, one justice for the poor. One justice sometimes for minorities, one for whites.
Uh, does this strike anyone else as an eerie iteration of the “Two Americas” theme favored by Democrats during the 2004 election season? Because if so, it seems to me that Bush has missed a golden opportunity to name John Edwards to the Supreme Court.
I mean, no wonder Susan Estrich is coming to the aid of Miers…
****
More here and here and here.
Whoa, I didn’t know she was a strict constructionist of the Pledge of Alligiance! If she can convince the IRS of that bit about forgiving our debts I am all for her.
The Pledge of Alligiance?
This is beyond moonbat shit here.
…As provided by the Pledge of Allegiance???
Well, isn’t that special?
B Moe, ya beat me to it. What is up with the invocation of the Pledge of Allegiance seemingly as a source of law?
Either that’s some loose Harriet shit, or she’s more whack ass than my worst nightmare.
This nomination has gone from looking like a political calculation with some unexpected and unfortunate friendly fire, to a complete and utter cluster phuck of FUBAR proportions.
This isn’t just an insult to committed originalists anymore. This nomination is an insult to thinking humans of every political stripe. I feel sorry for Harriet, but she doesn’t belong anywhere near a seat on the Supreme Court.
“Jonathan” Edwards?
Please stop and let me off this trainwreck……
Damn. I hate it when I’m wrong.
The benefit of doubt I extended to Miers is hereby retracted.
Pledge of Allegiance indeed.
I think Virginia’s work on Miers is the best in the blogoshpere. She takes Bush’s standards and arguments for the nomination (that Miers is a top corporate lawyer with good political skills) seriously, investigates the claims and finds them pretty empty. It would be interesting to hear Beldar and Hewitt address her more directly.
Mighty big of you, James.
I’ve been wondeering for some time why a conservative should get behind Miers’ nom when you’ve got people like Estrich supporting her.
Indeed. One of the justifications traditionally given for the decision in the Griswold case (which held state laws banning the sale of contraception to married couples unconstitutional) is that state legislators would be too embarrassed to vote in favor of repealing such laws. No one wanted to be known as “pro-condom.” Hence, the reasoning goes, the Court had to step in and do the legislators’ dirty work for them by invalidating the statute.
Hard to imagine a more anti-democratic line of argument than that. There’s a word to describe the idea that hard political questions should be settled by an insulated, unaccountable high authority. It’s called “monarchy.”
I write all this stuff for myself. In case you’re wondering why none of the legal bloggers (other than Patterico and Pej) seem to take anything I say seriously.
The elitist bastards.
ONANIST!
Look. Let’s just get her an operation; a connectadicktome, change her name to Harry and put her where she belongs – Senate Minority Leader.
Then GWB can nominate a real originalist to SCOTUS>
CronyJobs.com
It even has an application you can fill out…
We need a lot more of what Ramesh refers to as choice “c.” Whatever happened to that great conservative bromide, “Don’t just do something, stand there!”? Just because someone famous or especially loud and obnoxious is shrieking that there is a problem doesn’t mean that there really is a problem, much less a problem that we need judges (or legislatures) to “fix” immediately.
Goddamned utopians.
Turing word: say
Abso-freakin’-tively, Jeff. The Court’s job is to interpret and apply the laws, not decide what they should be. That’s why we elect legislators.
Not complicated, but some folks don’t seem to get it.
SB: somewhat
the Pledge of Allegiance? THE FRICKING PLEDGE OF ALLEGIANCE?
::Faints::
Charles Austin: “We need a lot more of what Ramesh refers to as choice “c.â€Â
Brilliant men.
That violates the first law of bureaucracy though:
If it ain’t broke keep fucking with it until it is.
Has anyone but me noticed that it’s been a week since Beldar’s blog was updated? Has he run out of arguments?
Jeff,
I think you are being way too nice by comparing Meirs to O’Connor. By what we’ve seen of her, Meirs makes O’Connor look like the Conservative that everybody hoped she’d be.
TW: went – pop! went the weasel (I know, I did it on purpose).
Harriet Miers is just as smart as anyone on this comment thread, so I don’t fully understand the justification for the condescending snark.
The Pledge of Allegiance: She wasn’t alluding to it in a legal brief for a court case. She was making a speech to a civic group.
And what was she talking about? “Liberty and justice for all”. She was talking about the dual system of justice for the rich and the poor. O.J. gets away with murder, courtesy of his dream team. Working class John Doe is pressured by an assistant D.A. to cop a plea and serve time without the benefit of his constitutional right to a jury trial.
Oh, but we don’t want anyone on the Supreme Court who’s concerned about due process—that just sounds too liberal. Ms. Miers must be a closet moonbat, right?
Uh, no.
Uh, does this strike anyone else as an eerie iteration of the “Two Americas†theme favored by Democrats during the 2004 election season? Because if so, it seems to me that Bush has missed a golden opportunity to name John Edwards to the Supreme Court.
Sorry, she’s not a closet moonbat. She’s just a closet Dem, in your view, because she’s concerned about a dual system of justice for rich and poor.
What’s your position on this, Jeff? Do you think our criminal justice system is up to snuff for our low-income citizens?
Getting strange error messages from your trackback system. I linked from Patterico’s ledge is getting more crowded
Miers Withdraws! Miers Withdraws! The Giants Win the Pennant! The Giants Win the Pennant!
Well, she withdrew her nomination. Rest easy.
That said, I had an interesting converstaion with someone who works at the Cato Institute, found out that Bush had asked four people prior to asking Meirs, all declined his offer. Of course this is a hearsay conversation so take it for what is is worth however, since our Policially Correct culture insists the nominee be female who will be willing to step up to the plate?
I have to wonder how many paper-trailed Conservative female candidates will be eager to endure the war the Conservative movement is demanding?
Judicial confirmation is politics, and politics ain’t beanbag. It only takes one who is willing to endure it.
That said, I’m pretty sure that the “gotta nominate a woman” crap might have had something to do with any difficulty he may have had in finding a potential nominee.
How happy do you suppose Thurgood Marshall would have been to accept his SCOTUS nomination, had he been told he was, in effect, a token choice?
Re: Harriet Miers’ dropping out
This is a sad moment for the Supreme Court.
Ms. Miers was an excellent pick. She could have been an even better justice than John Roberts.
President Bush didn’t misoverestimate Ms. Miers. He misoverestimated the smarts and the decency of some of his conservative supporters. He didn’t lose this one in my book—the anti-Miers gang did.
I respect the right and the duty of everyone to express their opinions and dissent. But the attacks on Ms. Miers quickly turned into a feeding frenzy that had a tenuous grip on the facts.
Hopefully the anti-Miers crowd will shoot straighter on the next controversy, but I can’t say I’m very confident about that right now.
You might want to post your comment here, Matthew.
For the record, I believe I’ve been quite fair and quite reasonable in forming my opinion about Ms Miers. And I’ve been honest, too. Your comment, on the other hand—accusing Miers critics of engaging in a feeding frenzy, suggesting that they aren’t too bright or too honest—is typical of the response of the Miers supporters.
And that’s a shame.
Jeff,
Thanks for directing me to the new thread.
If you can take stock of what you have written and conclude that you have commented intelligently and honestly, then I have no quarrel with you.
I have great respect for your integrity, humor, and smarts.
Of course, I do strongly disagree with your analysis of Ms. Miers’ qualifications and judicial philosophy.
I don’t think the Miers’ critics are dumb or dishonest. But I do think that some normally very bright people did allow a combination of peripheral issues, red herrings, and the general negative momentum of the debate to override their best judgement and their better angels.
Instead of giving Ms. Miers’ a fair shot, too many people decided to quash her nomination with all the influence and rhetorical skill at their disposal. With all due respect, I think that’s the real shame here.
Still love you and your blog though!
i have no clue what you are talking about
