Robert Bork, on the nomination of Harriet Miers—and Bush’s “conservatism”—in today’s WSJ “Opinion Journal”:
With a single stroke—the nomination of Harriet Miers—the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement […]
There is, to say the least, a heavy presumption that Ms. Miers, though undoubtedly possessed of many sterling qualities, is not qualified to be on the Supreme Court. It is not just that she has no known experience with constitutional law and no known opinions on judicial philosophy. It is worse than that. As president of the Texas Bar Association, she wrote columns for the association’s journal. David Brooks of the New York Times examined those columns. He reports, with supporting examples, that the quality of her thought and writing demonstrates absolutely no “ability to write clearly and argue incisively.”
[See here and, for a rebuttal, here]
The administration’s defense of the nomination is pathetic: Ms. Miers was a bar association president (a nonqualification for anyone familiar with the bureaucratic service that leads to such presidencies); she shares Mr. Bush’s judicial philosophy (which seems to consist of bromides about “strict construction” and the like); and she is, as an evangelical Christian, deeply religious. That last, along with her contributions to pro-life causes, is designed to suggest that she does not like Roe v. Wade, though it certainly does not necessarily mean that she would vote to overturn that constitutional travesty.
There is a great deal more to constitutional law than hostility to Roe. Ms. Miers is reported to have endorsed affirmative action. That position, or its opposite, can be reconciled with Christian belief. Issues we cannot now identify or even imagine will come before the court in the next 20 years. Reliance upon religious faith tells us nothing about how a Justice Miers would rule. Only a commitment to originalism provides a solid foundation for constitutional adjudication. There is no sign that she has thought about, much less adopted, that philosophy of judging.
[My emphases]
For more on evangelicalism and the judiciary, see this interesting piece by the Weekly Standard publisher Terry Eastland, in which he notes:
The problem for Bush a week after announcing his choice of Miers stems from the fact that it is entirely possible for someone to hold moral (or religious, for that matter) views that are deemed conservative, yet to approach judging in ways that are at odds with the judicial conservatism that the president himself says he wants in a jurist. That is why what people most need to know about Miers is how she thinks about the law and the role of the courts—a question not easy to answer given the nature of her legal career and the brevity of her encounters with federal constitutional law. The president is asking conservatives –i ncluding the evangelicals among them—to trust him as to Miers’s fitness in all respects for the High Court.
See also “Questions about a Questionnaire”.
Continues Bork:
Some moderate (i.e., lukewarm) conservatives admonish the rest of us to hold our fire until Ms. Miers’s performance at her hearing tells us more about her outlook on law, but any significant revelations are highly unlikely. She cannot be expected to endorse originalism; that would alienate the bloc of senators who think constitutional philosophy is about arriving at pleasing political results. What, then, can she say? Probably that she cannot discuss any issue likely to come before the court. […] What we can expect in all probability is platitudes about not “legislating from the bench.” The Senate is asked, then, to confirm a nominee with no visible judicial philosophy who lacks the basic skills of persuasive argument and clear writing.
And herein lies the biggest problem for conservatives who have expressed concern over the Miers nomination: the Senate hearings aren’t likely to tell us much of substance (though Beldar disagrees); and I haven’t seen a nominee yet who doesn’t distance him or herself from judicial activism by promising not to legislate from the bench. So when is the proper time to discuss the relative merits of a nominee if not in advance of these hearings, which, rather than serious, rigorous inquiries, have become showcases for grandstanding Senators to appeal to their constituencies, touch on personal hobby horses, and create media soundbites?
Again, I believe the debate conservatives and mainstream Republicans are having over the Miers nomination is a healthy one, particularly insofar as it throws into relief the divisions in political philosophy within the Republican Party, separating out the political pragmatists who run the Party from the hardcore legal conservatives who make up the ideological base.
In an interview with Sean Hannity last night, Rush Limbaugh noted that he believes Bush simply misread that ideological base on the issue of judges, believing that the nomination of an evangelical would be adequate code for the kind of socially conservative justice he assumed many in the Party wanted. But as I myself have been arguing for a couple weeks now (and it’s not often I am in vocal agreement with Limbaugh, who—to his credit, is proving to be less of a Bush cheerleader than I’d always taken him to be), the legal conservative base is decidedly NOT a crew that is looking for results-oriented justices, and I suspect that they look to the incoherence they find in several of Bush’s positions and extrapolate that out to Miers, whom Bush himself has claimed follows his political philosophy, which is nothing if not tinged with political pragmatism.
Does this mean that in a different context Miers wouldn’t shed that political pragmatism for judicial restraint and fealty to the written text of the Constitution? No, not necessarily. But when all we have to go on is the word of a pragmatic President who insists that his nominee is just like he is—and his Administration has found their way clear to signing McCain Feingold, supporting affirmative action in Grutter, and tacitly backing the local governments in Kelo—well, that’s asking a bit too much of those who’ve been waiting years to see an openly conservative jurist make his or her case for ascension to the Supreme Court.
In a similar vein, Bork writes:
But that is only part of the damage Mr. Bush has done. For the past 20 years conservatives have been articulating the philosophy of originalism, the only approach that can make judicial review democratically legitimate. Originalism simply means that the judge must discern from the relevant materials—debates at the Constitutional Convention, the Federalist Papers and Anti-Federalist Papers, newspaper accounts of the time, debates in the state ratifying conventions, and the like—the principles the ratifiers understood themselves to be enacting. The remainder of the task is to apply those principles to unforeseen circumstances, a task that law performs all the time. Any philosophy that does not confine judges to the original understanding inevitably makes the Constitution the plaything of willful judges.
By passing over the many clearly qualified persons, male and female, to pick a stealth candidate, George W. Bush has sent a message to aspiring young originalists that it is better not to say anything remotely controversial, a sort of “Don’t ask, don’t tell” admonition to would-be judges. It is a blow in particular to the Federalist Society, most of whose members endorse originalism. […]
[…] Finally, this nomination has split the fragile conservative coalition on social issues into those appalled by the administration’s cynicism and those still anxious, for a variety of reasons, to support or at least placate the president. Anger is growing between the two groups. The supporters should rethink. The wars in Afghanistan and Iraq aside, George W. Bush has not governed as a conservative (amnesty for illegal immigrants, reckless spending that will ultimately undo his tax cuts, signing a campaign finance bill even while maintaining its unconstitutionality). This George Bush, like his father, is showing himself to be indifferent, if not actively hostile, to conservative values. He appears embittered by conservative opposition to his nomination, which raises the possibility that if Ms. Miers is not confirmed, the next nominee will be even less acceptable to those asking for a restrained court. That, ironically, is the best argument for her confirmation. But it is not good enough.
Another good point, and one I’ve reluctantly raised myself: should the Miers nomination be quashed, would Bush reward conservatives for what he is sure to see as their distrust and perfidy? Or will he turn around and nominate his buddy Alberto Gonzales, who has the distinction of being one of the potential nominees likely to be even less popular than Harriet Miers? And if so, will legal conservatives be as vocal in their concern as they have been with Miers?
Valid questions, all. And only time will tell, I suppose.
Overall, Bork’s piece is a bit too forceful for my tastes—after all, I believe the President was acting in good faith initially, not hoping to torpedo the conservative movement. But it is clear to any who wish to see clearly that opponents of Miers have strong and principled reasons for their reluctance to embrace her, and that they will not be bullied into silence by attempts to demonize them or to write them off as fringe “far right” kooks who hate women and colleges outside the Ivy League.
****
(h/t Terry Hastings; more here and here; and Hugh? Well, not so pleased…)
Hugh really has been quite precious throughout this thing.
And I say that as one who thinks supporting Miers is the distasteful but necessary thing to do. But Hugh skirts the line too closely to intellectual dishonesty for my money.
Hewitt baffles me. If he’s an originalist and a conservative why is he digging in his heels so strongly for a nominee who is not demonstrably either? For that matter, if judged by his actions, Bush does not seem all that conservative yet Hewitt argues Miers must be conservative/originalist because Bush nominated her. Hewitt has no argument beyond “Trust Bush”. Still. Bork lists some of the reasons some conservatives have for their doubting Bush and Hewitt’s response is dismissive of all that but unreasoned. I’m reading Hewitt less as an analyst here and more as pro bono lawyer for Miers. An advocate. But for what exactly?
One of the (only) bright spots in all of this, is that the entire Miers and Roberts debates have been completely centering on whether or not they are “strict contructionists”. Very little, if any, debate as to whether this is the approprate judicial philosophy for Supreme Court judges.
When was the last time, anywhere, in all of this mess that you heard intense debate about regarding the US Constitution as a “living document”? (OK, I don’t spend any time in the left wing echo chambers, so I might have missed a bunch. In any event, any such discussions aren’t breaking out into the open that I can see.)
Maybe the center of this debate has shifted a lot further toward originalism than many of us have noticed or are willing to admit.
Well, Hugh, whenever I‘m whipped into a great frenzy, I don’t murmur, I can tell you that much.
Great-frenzy-whipped persons like myself are more typically accused of “screeching” or “shrieking” or “bellowing.” Maybe “vociferating” if the accuser is a real schmo.
If anything, it wasn’t forceful enough. Who really cares what the President’s motivations are? This isn’t show friends, it’s show business. He’s not pulling the levers of government because we like him. If his official acts are inconsistent with our philosophy of law and government, we ought to say so.
When Hewitt says that Bork is being “intemperate,” what he really means is that he is being “impolitic.” Hewitt is a politician-apologist, after all.
As you’ve been saying all along, Jeff, political considerations are entirely incompatible with juridicial considersations. Political pragmatism has no place in legal reasoning.
We need more judges who, like Bork, have the ability to disregard political pragmatism altogether. The state of American law would be better for it.
I was really talking about the tone, Phinn—because is gives fuel to critiques like Hewitt’s.
I think most of Bork’s points were on target.
I don’t think we should tiptoe around pundits who resort to calling people who disagree with them “a crowd … inflamed into a great frenzy of head-nodding murmuring.” I’ve gotten into comparable flame wars over at Washington Monthly. If anyone is getting into an ugly, personal twist over this, it’s Hugh.
There was nothing personally offensive or demeaning in what Bork said. He said she is “not qualified to be on the Supreme Court,” “has no known experience with constitutional law,” and has demonstrated no “ability to write clearly and argue incisively.”
These conclusions are objectively sound. Moreover, they all bear directly on the quality of work we can expect from Miers, in the context of the governmental function she will be expected to perform.
This is part of what bothers me so much about this nomination and the reaction to it (and the reaction to the reaction)—everything in politics has become so personalized. Personality politics apparently now cuts both ways, both in terms of personal attacks (for those we oppose), and personal approval (for those we are told to support).
I do not support a law or policy or governmental act because I like the person advancing it. No more than I oppose a policy because I dislike the person advancing it.
That’s what infuriates me about the whole “trust me” defense that Hewitt & Co. have been peddling. NO!!! We’re not personal friends! This is government! This is law! This goes way beyond you and me, way beyond anyone’s need for political alliances with this group or that group.
Long after all the political-practical concerns are forgotten and replaced with a new set of political-practical concerns, our children will have to live under the government and law that people like Bush and Miers help create. This is serious business. It transcends personality.
Legal reasoning is impersonal. It’s downright cold. That’s what makes it work. Bork understands that, which is why he would have made an excellent justice.
Stephen: Hugh has dug in his heels so deep because while he may be an originalist and a conservative, he’s a Bush sycophant first and foremost.
As an aside, what is the evidence that Hugh is an originalist/textualist?
We know he’s a conservative, but aren’t we merely assuming that he’s also an originalist/textualist?
To be clear, I haven’t tiptoed around the critics of Miers critics; I’ve placed the blame for the coarsening of this debate at their feet, and that’s where it belongs.
What I objected to in Bork’s column (and it was a very minor objection) was the accusatory tone he takes with regard to Bush’s conservative. Bush was up front about being a “compassionate conservative,” so he didn’t really hide that nod to liberalism and spending.
If you can read that sentence and still think that originalist/textualist isn’t a self-contradicting philosophy, you have done an Orwellian linguistic backflip that I can’t manage. How is using the Federalist Papers to interpret the Constitution any different than using Congressional floor debates to interpret statutes? Or is 1789 when originalism ends and textualism begins?
Does anyone know if Harriet Miers middle name is Quag?
i’m supporting bush on this, but not blindly. i clearly see the principled objection to miers. but, in the context of an all out assault from the left, which will lead into the 2006 and 2008 elections, i’m not enthusiastic about the right 1] allowing themselves to be seen as intolerant and uncompromising and ‘far-right’ and 2]questioning bush’s sophistication and judgement with regard to SCOTUS. THAT has legs. why not question his judgement in general, bork seems to. and coulter-will-krauthammer-malkin. the GOP is easily characterized as ‘corrupt-arrogant-poweraddicted-uncompromising-intolerant-overly hawkish’. so we play that to extreme? it makes boxer’s observations seem positively mainstream. it’s not good for the elections to call the leader unsophisticated and question his judgement. future elections are reason to get behind bush on this, because they include future picks. the GOP has ‘own-goaled’ and the dems have their first real momentum in a long, long time.
I’ll say up front, I haven’t made a decision about Ms. Miers and don’t know enough about her to form a valuable one, yet.
After reading Judge Bork’s article, I will concede to him and others that indeed Ms. Miers may not be an ‘originalist’ with respect to constitutional law. I recognize that there is strong and principaled opposition to her by conservatives based on this lack of knowledge of her legal philosophy.
Bork says in his article that
. I haven’t read any of Ms. Miers’legal writing, so I don’t know if I agree with Judge Bork.
However, that being said, I’d like to make two observations that I’ve noted in all of the discussions heere and elsewhere about Ms. Miers over the last week or two.
First. Isn’t this worry by conservatives, and judicial ‘originalists,’ about her judicial philosophy the flip side of the coin to the democrat left’s judicial litmus tests? I don’t agree activist judges or with the democrat’s politicization of the judiciary, but aren’t we now doing the politicizing the this issue too?
Second. Ms. Miers is hardly the first nominee for the Supreme Court that has no substantive record. Let’s look at the late Chief Justice Rhenquist.
Rehnquist worked as a law clerk for Justice Robert H. Jackson during the court’s 1951–1952 terms. He then moved to Phoenix, Arizona and was in private practice from 1953 to 1969. Rehnquist served as Assistant Attorney General during the administration of President Richard Nixon from 1969 to 1971. In 1972, Nixon nominated him to an associate justice position on the supreme court. His only ‘constitutional’ writing that I can find, he wrote as a clerk when the SCOTUS was considering Brown v Board of Education, upholding Plessy v Fergeson.
Is this any more illustrious than Miers?
I’m not a lawyer, so perhaps I’m not fully aware of all sides of the argument. I’m not going to pretend I have some pithy insight into her qualifications, I don’t, but many of the arguments both for and against seem rather flimsy and based more on politics.
No.
Howso?
Expecting someone to interpret the Constitution based on the text is only “political” because it is distinct from the interpretive methods that fuel the judicial activism conservatives abhor.
You made a good point and I’ll agree with your statement,
I too would like to see less judicial activism, whether it emanates from the left or right, as for instance in Gonzales v. Raich (2005), in which Justices Scalia and Kennedy departed from their previous positions as parts of the Lopez and Morrison majorities to uphold a federal law regarding marijuana. Something discussed earlier on this site in another post’s comments.
But Bork defined ‘originalism’ as,
I don’t think that anyone at that time foresaw some of the circumstances that these principles would be applied to today. I think that some of today’s issues require the justices to apply their principles in ways that were never imagined by our forefathers.
That doesn’t mean that justices should proceed to invent altogether new interpretations based upon their personal biases or popular political opinion and in effect legislate from the bench, but it seems inevitable to me that this is exactly what might happen, to a greater or lesser degree, when dealing with totally new issues that the law has never had to consider. The principles of originalism work well for most applications, but are like Newton’s laws, they work for all practical purposes, but break down at the extremes, large and small.
Again, I’m just trying to learn who this woman Bush nominated ‘is’, with regard for her fitness for the position that she’s been nominated for.
Are there more qualified candidates? Yes. Will she be an originalist or at least believe in judicial restraint as conservatives and libertarians do? Obviously, none of us can know. While Judge Bork makes some good points, his article seemed to me to border on polemic. I especially disagree with his statement,
People of principle are not going to hide their views because of this nomination. I think the court and the country has moved to the right in the last 20 years and will continue to do so until the right somehow ‘jumps the shark’ or otherwise looses the intellectual initiative that thay have had for the last half century or more and the pendulum of history begins to swing back. Even then, it will not swing back as far to the left as before unless we have all forgotten everything about the history of the last two centuries.
It’s simple—originalism and textualism refer to two different concepts. You have tried to meld them into a single term, but they refer to two distinct (though related) doctrines.
Originalism refers to the idea that the meaning of a legal term (a Constitutional clause, or a statute, for example) does not change over time. It simply means that the original meaning is stable, that judges cannot change it by fiat.
For example, if the power to “regulate commerce between the States” originally meant the power to tax or control goods if and as they crossed state lines, then it is improper for the Court to change that meaning to include the power to pass any law on any subject so long as it relates to any economic activity that might touch on or relate to interstate commerce. In other words, the original meaning of the clause was a specific grant of power, which was by definition limited in some meaningful way, and the Court re-defined it to be virtually unlimited. (This is why the scope of the federal government has grown exponentially at the expense of the states.)
Textualism is somewhat different. It is a doctrine that restricts the sources from which we should derive the meaning of a legal term.
This concept is derived from a well-established set of rules in contract law, which provides that the plain meaning of a written contract will be enforced without regard to what the parties to it say that it means. If the meaning of the document is clear on its face (i.e., there is no patent ambiguity), then the court will refuse to even hear any explanation from the parties as to its meaning. (Of course, it is somewhat difficult to define what qualifies as an “ambiguity” in the first place.)
Both of these doctrines stand in opposition to the kind of legal garbage we have seen over the years with ideas such as:
– “penumbras and emanations” (that are supposedly lurking in the Constitution), or
– “substantive due process” (which is the dumbest idea ever invented), or
– the “right to privacy” (which is a patently redundant, meaningless phrase that the Court invented out of whole cloth).
These ideas are neither part of the Constitution’s original meaning, nor are they apparent in the plain text. Thus, according to both originalism and textualism, these concepts are seen as illegtitimate.
Although these two doctrines reach similar results in some cases (as when they criticize the Constitutional blunders listed above), one can easily imagine a situation where an originalist approach and textualist approach could diverge. As Bork describes, an originalist judge may use sources outside the text to supply a meaning to a legal term, even though the analysis is geared toward discovering its original meaning. A textualist judge may refuse to do so, holding that the original meaning must be derived solely from the text.