1

Joe,
An overall good post but it seems like you have ignored some logical conclusions from Bush's campaign promises.

You write that Bush "did not promise to choose a nominee who... would overturn Roe... was like Scalia and Thomas... had defined views on the great legal questions of the day."

This assertion has some flaws, though. If you are nominating a strict constructionist you would be nominating someone who would overturn Roe, and by merit of his or her jurisprudence be like Scalia and Thomas. Because of the formulaic nature of seeking original intent it could also be safely assumed that the nominee would have views on major legal questions (even if he or she couldn't ethically say what they were.)

There was also an implicit understanding by those who voted for Bush that when he filled a Supreme Court vacancy he would put in the best qualified. Did anyone really think that Bush would nominate, say, a first year law student who was a strict constructionist? Of course not, because it is assumed - quite naturally - that a self-proclaimed conservative will put in people on their merits, which means the best qualified.

I'd close by saying that it doesn't follow that just because W isn't a good custodian of the Constitution George Will couldn't vote for him. Not knowing what went through his mind, it is equally plausible that Will cast his vote based upon other issues. Perhaps he thought that Bush would do a better job protecting the nation and through that secure the survival of the Constitution for future, more competent custodians. Put another way, Will would consent to a bad custodian now so that there could even be custodians later.

Just some thoughts at 4 am.

2

It would appear that your reference to the 2004 debate, though accurate, is not pertinent. The many references to Bush's "repeated" campaign promises to nominate strict constructionists modeled after Scalia and Thomas refer to the 2000 election, not 2004.

Regardless, I'm glad in this post that you moved from your myopia on Roe tactics and turned your attention to the deeper strategic need to appoint a strict constructionist. The concern I have with Ms. Miers is that I'm not aware of written work by her demonstrating a strong grounding in constitutional law and a clear understanding of the proper role of the courts. Conversely, Justice Roberts met that criteria superbly.

Appeals to trust President Bush ("put not your trust in princes") or testimonials from friends about Ms. Miers won't suffice; Ms. Miers will have to find some other way to demonstrate her competence for the position which can give us confidence that her principles of jurisprudence will endure over the long-term.

3

Which promise? Affirmative action for Evangelical Christians?

Or perhaps, to "change the tone" in Washington.

Yeah he changed the tone. Wait til you see the indictments from Fitzgerald.

Aside from the fact that there is no such thing as a strict constructionist (what part of "born" do you folks not get when it comes to the 14th amendment?), especially on your so-called "life issues" (which, as I've stated before, are really pro-death issues), why should you want the constitution interpreted so it satisfies the theological demands of one group of sects in one religion?

4

what part of "born" do you folks not get when it comes to the 14th amendment?),

What part of "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." do you not understand when if come the 10th amendemnt? Since the power to requlate or restrict abortion (which was not unknown at the time of the founding) was not specifically delegated to the US, nor prohibited to the states, the power to regulate abortion should fall to the states or the people. A possible exception could be the transporting of a minor across state lines to procur an abortion (deals with interstate commerce).

your so-called "life issues" (which, as I've stated before, are really pro-death issues),

Oh, well that clears it up.

why should you want the constitution interpreted so it satisfies the theological demands of one group of sects in one religion?

Of course, this makes the assumption that only evangelicals and Catholics are opposed to abortion. An assumption not grounded in fact. I expect better from a member of "the reality based community".

5

Joe,

Finally a little bit of sanity on this issue.

I have a sinking feeling in my gut. Miers will be much more like Scalia and Thomas than Roberts will ever be.

And then a lot of us will look back and ask ourselves, why all the hubbub over Miers but zip over Roberts?

Here's my wager: In the end we conservatives will wish Bush would have chosen 2 Miers instead of a Miers and a Roberts.

Here's to hoping i'm wrong.

6

To be honest, I haven’t heard much sense of betrayal from conservatives towards the president’s choice. Just anger and disagreement. There’s a sense that he’s not playing straight with us.
Miers could be a very good candidate. But there’s no real reason to believe that right now. The President passed over a long list of very qualified candidates to pick an unknown. Her degree or lack of judicial experience aren’t the problem. But on top of those things, we have no other information to tell us how she thinks issues through.
What I find more disturbing have been the defenses I’ve heard for her nomination. The President’s has been “Trust me.” I would really really love to, but as much as I support Bush on many issues, but not on all. As Will pointed out, Bush signed a law that he himself said was unconstitutional. Maybe his reasons here are trustworthy, but we don’t know because he won’t tell us.
The even more disturbing reason I’ve heard is that Miers would be a good candidate because she’s an evangelical Christian. I certainly wouldn’t want someone prohibited from the position for her religion, and neither should that be the reason she does get it. She should get the job if she’s qualified for the job. That doesn’t mean voting the right way. It means thinking through the issues according to good principles and voting the right way for the right reasons, and being able to articulate that reasoning well.
Jonah Goldberg wrote the other day, “Personally, I think conservatives must be the defenders of excellence and standards, even when that is inconvenient to other conservative ends.” And he’s right. Would we accept this kind of nomination if a president from the other end of the political spectrum had made it?

7

What part of "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." do you not understand when if come the 10th amendemnt? Since the power to requlate or restrict abortion (which was not unknown at the time of the founding) was not specifically delegated to the US, nor prohibited to the states, the power to regulate abortion should fall to the states or the people. A possible exception could be the transporting of a minor across state lines to procur an abortion (deals with interstate commerce).

Why would it fall to the states then rather than individual perrogative?

Again thanks for reminding us that Bush botched up the Dread Scott ruling. First of all the Constitution did say that people could be property (the original text even included a clause saying an amendment to outlaw slavery couldn't even be introduced until around 1810 or 1812 or something). Second the 14th amendment guarantee of equal protection was not enacted until after the Civil War. A Justice committed to 'originalism' or even 'strict construction' would have had a hard time dissenting from the Dread Scott ruling back then.

8

ucfengr

the power to regulate abortion should fall to the states or the people.

And the court decided it fell to the people...

Next question...

Of course, this makes the assumption that only evangelicals and Catholics are opposed to abortion.

No, it makes the assumption that a few sects in one religion want special rights.

I don't think that Bah'ais are being that vocal about it...and most of 'em wouldn't vote Republican for other reasons...

9

"Why would it fall to the states then rather than individual perrogative?

Again thanks for reminding us that Bush botched up the Dread Scott ruling."

It's hard to take this serious with the poor spelling.

"...the assumption that a few sects in one religion want special rights."

True, the sects of secular humanism want company in their misery.

10

Shipwrecked If you are nominating a strict constructionist you would be nominating someone who would overturn Roe, and by merit of his or her jurisprudence be like Scalia and Thomas.

I’m not sure that’s necessarily true. A justice could be both a strict constructionist and a staunch advocate of stare decisis, the idea that judges should defer to precedent when precedent does not come into conflict with the Constitution.

There was also an implicit understanding by those who voted for Bush that when he filled a Supreme Court vacancy he would put in the best qualified.

Why do you think there was an “implicit understanding?” To my knowledge, GWB has never promised to support the “best qualified” candidate for anything.

Of course not, because it is assumed - quite naturally - that a self-proclaimed conservative will put in people on their merits, which means the best qualified.

I’m not sure why you think that conservatives think that people should be judged solely on merit. That is a meritocrat, not a conservative.

The many references to Bush's "repeated" campaign promises to nominate strict constructionists modeled after Scalia and Thomas refer to the 2000 election, not 2004.

I was unable to find the source of these campaign promises from 2000. Do you have any references?

Civil Truth Regardless, I'm glad in this post that you moved from your myopia on Roe tactics and turned your attention to the deeper strategic need to appoint a strict constructionist.

Obviously, I would rather have someone who would overturn Roe and also hold a strict constructionist view of interpretation. But forced to choose, I would go with justice over judicial philosophy.

Eric and Lisa I have a sinking feeling in my gut. Miers will be much more like Scalia and Thomas than Roberts will ever be.

Prepare to be disappointed (or elated depending on what that first sentence meant). Sen. John Cornyn, who knows Miers well, says that she is “not a Scalia or a Thomas” but will be a good judge anyway. I also talked to a very high-profile Republican leader from Texas who told me that Miers is basically a “liberal Democrat” who changed parties in order to keep from losing political power when Texas went Republican.

I think there is about a 75% chance that Miers will be a disappointment. Not as bad as O’Connor or Souter, perhaps, but still a disappointment. The point of my post, though, is that it is still too early to tell.

Boonton A Justice committed to 'originalism' or even 'strict construction' would have had a hard time dissenting from the Dread Scott ruling back then.

Exactly. Sometimes I think the people who claim to want a “strict constructionist” have no idea what that term means in application.

Take, for example, Minnesota v. Carter in which the issue whether the Fourth Amendment, which protects individuals from unreasonable searches and seizures, protects a defendant who was a temporary guest in the home of another person. Scalia said that "[t]he right of the people to be secure in their . . . houses . . . against unreasonable searches and seizures" did not apply to visitors because is was not their house. The police could bust into a house and conclude that anything illegal found belonged to the temporary visitor and would be fully within their rights to do so.

11

“Exactly. Sometimes I think the people who claim to want a “strict constructionist” have no idea what that term means in application.”

But just because strict constructionism wouldn’t solve all problems, does that mean it’s a bad thing? If a law is immoral, or contrary to the interests of society, it’s up to the legislatures to change that, not the courts. The court’s only job is to enforce the laws that are on the books. I don’t want a judge who will change society even in the directions I like. I want a judge who fairly enforces the law, and a legislature that does it’s job in writing good law and repealing bad.

12

That conservatives like Tony Blankley, Ann Coulter, and George Will are sniffing over Miers' nomination shows how elitism afflicts those on the Right, who always complain about it on the Left. D.C. is full of snobs.

The simple truth is that the Constitution is simple, i.e., it was written to be easily understood by the American people, not decipherable only by an effete, black-robed oligarchy. Legal brilliance is wonderful, but an understanding of American history founded upon a reliable moral foundation is more wonderful. In fact, if anything, a Supreme Court justice's job ought to be to untangle and simplify what lower courts either could not straighten out or, as is often the case, twisted beyond redemption.

I think Bush chose Miers in order to knock his opponents' knees out from under them. They're befuddled by someone who worships at an altar rather than the Bar. Thus if they attack her, since there's not much legal paper trail, it will amount to an attack on millions of Americans who share her ethics, religious experience, etc.

13

what part of "born" do you folks not get when it comes to the 14th amendment?),

"I've noticed that all the folks in favor of birth control are careful to be sure they themelves are already born." -- Will Rogers (from memory)

14

It’s not elitism, unless it's elitist to insist on merit. I wouldn’t care if she went to college, had judicial experience, or anything else, so long as there was some indication, be it in papers written, speeches made, jobs performed, that she is knowledgeable and competent to interpret and defend the constitution.

If you’re right, that Bush is using a lack of paper trail to force her opponents to focus on her religion, that’s awful too. Her religion shouldn’t be a factor. Only her competence to do the job.

I repeat, how would you feel about this nomination if Clinton, Gore, or Kerry were president and were appointing a friend with no relevant experience, about whom you knew nothing, and argued that you simply needed to trust them?

15

I find it ironic that for all Bush's expounding on the importance of appointing a strict constructionist - someone who would interpret the Constitution in the way the Founders intended - he has chosen to select his nominee in a way profoundly opposed to the Founders' intent. If this were 1790 and a president was appointing his political advisors to the Supreme Court, the Founders would be running for their muskets. Hamilton essentially says as much in the Federalist Papers, in which he describes the "advice and consent" clause as specifically designed to prevent this sort of bald-faced cronyism.

Jim: "The simple truth is that the Constitution is simple, i.e., it was written to be easily understood by the American people, not decipherable only by an effete, black-robed oligarchy."

What is this, a joke? The Constitution in not simple; in fact, it's extremely complicated and often deliberately obscure, not to mention its frequently terse and archaic phraseology. And it was certainly not "written to be easily understood by the American people." For pete's sake, it was written by a tiny intellectual elite at a time when the majority of the American people were functionally illiterate. (Also, I'm not sure you understand what the word "effete" means, although I do enjoy the idea of a Constitution written to be understood only by mincing, effeminate dandies.)

The point is that it takes a brilliant legal mind, preferably with a history of scholarship on Constitutional issues to balance the complex concerns involved in, for example, defining internet property rights based on a document written before the discovery of electricity. Also it helps to have, at some point, been a judge. Judy Miers has not, nor has she litigated on Constitutional issues, nor written seriously on Constitutional law. In fact, outside of taking the required ConLaw courses in law school, there is nothing to suggest Judy Miers has any experience at all on this subject. That should be the only issue of any concern to anyone, regardless of ideology or political affiliation.

16

Darrell:

If you’re right, that Bush is using a lack of paper trail to force her opponents to focus on her religion, that’s awful too. Her religion shouldn’t be a factor. Only her competence to do the job.

I agree it should not be a factor. But I think it's the real factor for many on the Left, and I think Bush is forcing them to be more open about it.

Stavrogin:

Please, I know exactly what "effete" means, or I wouldn't use it. I was going for the "effeminate dandy" mental picture. But I don't know what "Stavrogin" means, except perhaps smart, with a dash of condescension. And I disagree that the Constitution is nearly as difficult to decipher as you claim, although I admit to oversimplifying in my own statement.

And who is Judy Miers?

17

Hewitt's an embarassment. As I mentioned on my own blog, if Bush peed in a Schlitz bottle, Hewitt would be the first to declare it Dom Perignon.

But how do you figure that Roberts is somehow evidence that Bush is sticking to his word? And where do you get the notion that Roberts is a strict constructionist? Would that be the same Justice Roberts who explicitly rejects that label (as well as "originalist") and says "I think I'd have to say that I don't have an overarching, uniform philosophy"? Let's not forget, that justice was ALSO selected because he had made few public statements on any important issues.

He's hardly evidence yet that Bush has kept his promises.

18

Take, for example, Minnesota v. Carter in which the issue whether the Fourth Amendment, which protects individuals from unreasonable searches and seizures, protects a defendant who was a temporary guest in the home of another person. Scalia said that "[t]he right of the people to be secure in their . . . houses . . . against unreasonable searches and seizures" did not apply to visitors because is was not their house. The police could bust into a house and conclude that anything illegal found belonged to the temporary visitor and would be fully within their rights to do so.

On the other hand it also provides for people to be secure in their 'persons' and things which would imply that you can't be subject to unreasonable searches and seizures just because you happen to be somewhere besides your house.

The simple truth is that the Constitution is simple, i.e., it was written to be easily understood by the American people, not decipherable only by an effete, black-robed oligarchy. Legal brilliance is wonderful, but an understanding of American history founded upon a reliable moral foundation is more wonderful. In fact, if anything, a Supreme Court justice's job ought to be to untangle and simplify what lower courts either could not straighten out or, as is often the case, twisted beyond redemption.

The evidence offered in her support is that she goes to a Church that some people here like (talk about elitist). What indicates that she has an excellent grasp of US History?

If you’re right, that Bush is using a lack of paper trail to force her opponents to focus on her religion, that’s awful too. Her religion shouldn’t be a factor. Only her competence to do the job.

I agree it should not be a factor. But I think it's the real factor for many on the Left, and I think Bush is forcing them to be more open about it.

Some on the right are trying to have it both ways. They want to use the fact that this woman happens to go to a particular Church and appears to be serious about it as the MAIN argument in favor of her being appointed to a serious position with lifetime tenure. Yet whenever a conservative is criticized for going overboard with his religion the cry is 'religious discrimination'. You can't have it both ways, if discrimination based on religion is wrong then so is discrimination in favor of a religion. Imagine this was Bill Clinton and he nominated a black woman and the only thing offered in her defense is that she's black and a woman. That would be affirmative action of the worse sort but what is this?

Let's imagine Jim's response above being applied in the hypothetical Clinton nomination; "Republicans only care about keeping down blacks and women, therefore by appointing someone whose only qualification is being black and a woman I have forced the Republicans to be more open about it".

Above we have Jim preparing for the second line of defense....being a SC Justice is a job for an idiot therefore her lack of demonstrated judicial wisdom is really a qualification!

19

Texas Senator John Cornyn, who knows her well, confidently asserted that "She is obviously not a Scalia or a Thomas."

Yeah. Senator John Cornyn of Texas.

He would never mislead the public about something like this.

20

Jim

You got me. Evidently, after reading dozens of articles on both Harriet Miers and Judy Miller I've now started conflating their names. Beg pardon.

It's not just that the Constitution is difficult to decipher, although to understand, say, the Establishment Clause, one does need to know what 18th Century intellectuals meant when they used the word "establishment". But yes, in general all one needs to understand the Constitution is to be relatively well-educated and intelligent. The difficulty comes in interpreting the document and applying it to current legal issues. "Strict constructionism" sounds easy, but it requires, among other things, an in-depth knowledge of the Founder's political ethics and the zeitgeist of the late 1700's. My point is not that Miers doesn't have the required skills - she coulod turn out to be some kind of Supreme Court virtuoso - it's just that thus far she's given no evidence that that's the case, (Bush's claim that he "knows her heart" notwithstanding). Positions on the highest court in the land are simply too important to be given to people who *might* do a good job. Demonstrated competence is required.

"I was going for the "effeminate dandy" mental picture. "

Of course. Everyone knows erudition isn't for real men. After all, what's the risk of appointing an incompetent to the Supreme Court compared to the risk of obeisance to limp-wristed foppery?

"Stavrogin" is the principle character in Dostoyevsky's excellent, stunningly precient and sorely overlooked novel "Demons" (unaccountably mistranslated as "The Possessed" by Constance Garnett and in some subsequent editions.) In Russian "stavrogin" suggests "cross-bearer", which is meant as a grim irony - the character himself being a messianic, but also demonic, figure. I'm sure you can see the appeal.

Cheers.

21

For what it's worth, my take on much of the opposition is from a view that the SCOTUS nominees should all be "all-stars" of the legal community (legal review articles, top of class, top scholastic bona fides, etc), and much of the dissent from lawyers (lawyer-groupies) comes from being let down in this respect by Miers.

While it is certainly true that a certain (high) level of legal expertise is required, it has not been demonstrated that Miers lacks this. The real questions is whether or not after you pass the "minimum" entry requirements pertaining to legal expertise, which is more important to balance character or legal brilliance.

22

Jim comments are actually both elitist and arrogant. I may not agree with someone who has spent 30 years studying theology but I will not presume to tell him I know more theology than he does. Nor will I do the same to someone who has spent their life memorizing the Koran.

Pretending those people have accomplished nothing from their efforts and my wisdom is automatically equal to theirs in the subject simply because I'm "an everyday man" is the height of arrogance and elitism.

No one says people like Scalia on the right or people like Tribe on the left have excellent legal minds because they were born to the right family or because they are somehow automatically great. They say that because those people have demonstrated an excellent command of the law and legal argument developed through years of study and effort. It's elitist to think someone who has done neither can just waltz in and do an equally good job by just being 'folksy' and applying 'common sense'.

23

Joe Carter wrote:

Sometimes I think the people who claim to want a “strict constructionist” have no idea what that term means in application.

And Shipwrecked wrote:

Because of the formulaic nature of seeking original intent it could also be safely assumed that the nominee would have views on major legal questions (even if he or she couldn't ethically say what they were.)

I noted here, however, that "original intent" is a pretty meaningless concept; e.g., it's not clear that "the constitution as originally interpreted" meant that it was orignally meant to be interpreted in the future the way it was originally interpreted.

There's no smoking gun that says so folks. And that's why even Scalia, Mister Original Intent himself, is often caught in his opinions pulling stuff out of thin air.

Boonton:

Bush's main concern is not for the anti-life-humans-are-equal-to-zygotes-and-the-brain-dead crowd, but to make sure he can keep Gitmo and Abu Ghraib going and not be indicted as a sitting president for the Plame affair.

As I said before, it's a Bush seat, not an "Evangelical" seat, actually.

Ken:

I won't go into the Freakonomics authors' responses to Bill Bennett here. But look 'em up.

It's not just that the Constitution is difficult to decipher, although to understand, say, the Establishment Clause, one does need to know what 18th Century intellectuals meant when they used the word "establishment". But yes, in general all one needs to understand the Constitution is to be relatively well-educated and intelligent.

Ah, then there's the 2nd Amendment...which requires one to understand the role of "militias" in American society, and the debate by the framers as to whether or not we should have a standing army...to bad that original intent (guns OK for ordinary folks to form militias, almost no standing army) was lost in the mists of time...

24

fyi -- thought I'd remind everyone what I had been saying on an earlier thread: the only facts that really matter in courts of law in this country are those based on a scientifically established reality (as opposed to the supernatural).

To the extent that a judge's religious beliefs are expected to matter in a judge's decision making, that judge is a disease on the system and should never be allowed to hold a judicial position again.

http://www.stcynic.com/blog/archives/2005/10/barbara_forrests_testimony.php

Remember a few days ago, when John West of the Discovery Institute was trying to discredit Barbara Forrest by quoting, in a highly distorted fashion, from a pretrial hearing on the defense's attempts to have her barred from testifying? West claimed that the judge had "skewered" Forrest, when in fact all he had done was distinguish what types of quotes she could offer from ID advocates in her testimony based on some technical distinctions in the rules of evidence.

On Wednesday, Forrest took the witness stand and according to folks who were watching, it was the defense attorneys who were skewered, having their objections overruled time and time again. They tried repeatedly to object to her testimony and the judge continually overruled them, and in desperation they ended up making a huge deal out of the fact that Forrest is a member of various humanist groups. Richard Thompson, head of the Thomas More Law Center, tried to raise the fact that she was a member of the ACLU, Americans United for Separation of Church and State, and the New Orleans Secular Humanist Association during questioning. This tactice, called "muddying the waters", works well when speaking to churches (the mere mention of the word "humanist" is enough to conjure up images of satanists eating babies), but in a court of law? Not a chance. The judge admonished them not to get into irrelevant side issues.

Do you see how our system works? Do you see why a judge's religious beliefs can not be allowed to matter?

I hope so.

25

Joe, From googling, I found myriad references to Bush having promised in the 2000 campaign that he would appoint judges in the model of Scalia and Thomas. It seems to have been general knowledge then and then and then as well as now and now. Gore stated this in his first debate with Bush, and Bush did not directly refute him. However, I was not successful in finding a direct quote of Bush.

In any case, I think this is a moot issue at present. Bush had chosen his nominee, and we must deal with that reality on its merits.

26

Joe- It's clear that you are nothing but a die-hard new media apologist. For Hugh.

The guy says some nice things about you a couple of years back and you're still carrying water for him today? Have you no sense of decency sir?

27

Elder,

I have no choice -- I'm locked into a contract. In order to get my name mentioned in "Blog" (six times, but whose counting) I had to sign a non-criticism clause in which I can't say anything critical of Hugh until 2007.

28

Sell out. Remember the old days Joe, when it was all about the music?

29

I was also very disappointed and unfortunately, it is not getting better. When I went to Miss Mier's church website, i was atleast hopefull it would be a true conservative christian church...but it is NOT..........I first associated their baptismal regeneration with the Church of Christ and when I read NT Church......i knew it had to be related to the Stone-Cambell movement. I was raised in the Church of Christ and graduated from one of its Universities.It is a cultish church and truly believes it is the ONE TRUE Church..Yet today, I realized it is The Christian Church.this church broke away from the Church of Christ long ago over instrumental music. Miss Miers is a member of the church that now has instrumental music. Unfortunately, it is also the church that has gone totally liberal and probably most of its members are democrats. One of their callings is SOCIAL JUSTICE and they are also a member of The National Council of Churches.not a good sign. Although the Church of Christ is more conservative, it also has alot of democrats. They see no conflict with being christian and voting for pro abortion candidates..etc. I am truly born again now and attend a conservative baptist church. I really think that somehow the roots of her church should be known. here is a website...http://www.disciples.org/ I feel like calling Dobson and Jay sekalo at home.......

Personally, I don't care if the Justices are catholic, baptist or athiests as long as they love our constitution and are not judicial activists.

So now, i'm left with Bush stating "Trust me...she's a christian"???????????

I wish she would withdraw her own nomination for the good of this country....

30

This is the first time since W was elected that I've seen real division in the conservative ranks. That's a bright spot in my liberal day.

Even though the conservatives who are angry at the President's choice would prefer a judge that I would dislike, I do appreciate the fact that they are angry over an appropriate issue. With all the people out there who have clear records of distinquished service and contributions to legal thought, how could anyone make the claim that W's choice was the "most qualified person available"? She's not even in the top 1000. Isn't this nomination the equivalent of putting Brown in charge of FEMA?

31

Alexandra, your comment seems like satire but I'll respond as if it is a statement of true belief.

You write:

One of their callings is SOCIAL JUSTICE and they are also a member of The National Council of Churches.not a good sign.

Come again? Are you really saying that someone who belongs to an organization that believes in social justice is somehow a problem?

32

It is a cultish church and truly believes it is the ONE TRUE Church. ...

Miss Miers is a member of the church that now has instrumental music. ...

I am truly born again now ...

...must ... resist ... snark ... pressure ....unbearable ... can't ... withstand ....

AREHAHGHHGDGHDGDGSSFdfhsgghsgsf!!!!

33

I am no whiz at judicial appointments, but the fight that GW's nomination has created is intriguing to me. The argument doesn't seem to be about a known failure to align with a strict constructionist view, but it seems to be strictly over the unknown.

It seems strange to me that we would trust the President to make national security decisions without us knowing the details, but this nomination would create such a fuss. I know it is not a direct parallel, but interesting none the less.

All this does make me fondly reminiscent of Ronald Reagan's 11th Commandment: "Thou shalt not speak ill of a fellow Republican."

34

Larry, I for one think you're doing quite well. Did you switch to decaf? ;-)

35

Dave Thomas posted this recently to Pandas Thumb:

Supreme Court nominee Harriet Miers has ... given 10 percent to 12 percent of her earnings — “if not more” — to the evangelical Valley View Christian Church in Dallas, where she has been a congregant for about 25 years ... according to Judge Nathan Hecht of the Texas Supreme Court, who has dated Miers. This Newsday article has the details.

What has this to do with Panda’s Thumb? A lot!

It so happens that the “Useful Links” page for Miers’s Valley View Christian Church links prominently to the Creation Evidence Museum, run by Dr. Carl Baugh, a creationist who is so far out as to have been strongly criticized by Answers in Genesis and the Creation Science Foundation. Baugh is perhaps most famous for his fakey “Paluxy Mantrack” footprints, specifically the “Burdick Print,” and his fossilized human finger.

A YEC on the Supreme Court? Connect the dots, people … connect the dots.

http://www.pandasthumb.org/archives/2005/10/harriet_miers_a.html#more

I recall reading in the NYT yesterday that there was some sort of schism happening in Miers' church where a bunch of folks -- including Miers and Hecht -- were going to branch off and form another congregation where the preacher had "less control" over the church vibe. Or something like that.

36

Joe,

I don't think it is too early to tell. Never underestimate the power of the Lord over a converting heart.

From polipundit.com

"4. Miers’ paper trail: abortion

4.1: In 1989, she contributed $150 to Texans for Life. 95% of those who contribute to pro-life groups seek to reverse Roe v. Wade; there’s no reason to think Miers is an exception.

4.2: When she ran for Dallas City Council, she openly identified herself as pro-life. Her campaign manager has since called her “on the extreme end of the anti-choice movement".

4.3: She became head of the Texas Bar in 1992-93, and used her position to lobby against the ABA’s pro-abortion positions. She continued this lobbying late into the decade. There is no reason to doubt that this was powerfully rooted in her own pro-life political views.

4.4: She gave money to Bentsen and Gore in 1987/88 when she was still a conservative Democrat. Since 1990 she has made 13-14 political donations, and these donations have gone ONLY to 100% pro-life candidates.

4.5: In 2000 she gave money to Donald Stenberg, the Nebraska attorney general who defended Nebraska’s partial birth abortion law before the Supreme Court. As one blogger put it: “I didn’t know she had given to Sternberg [sic]. The only people who I know from around here who did that were the real activists.” Exactly.

4.6: Summary: this is the most extensive pro-life record of any nominee to the Supreme Court in recent years. Even Scalia and Thomas, who both rejected Roe, never had a record like that. Roberts certainly never did. Her on-record pro-life convictions are clear and undeniable."

I'd say that is pretty strong evidence of the type of person we'd like to see on the Supreme Court. Also, it is just the sort of behavior i'd expect from a Christian.

37

Miss Miers is a member of the church that now has instrumental music. Unfortunately, it is also the church that has gone totally liberal and probably most of its members are democrats

Is this serious or a satire? Getting a job as a bank teller requires showing you have been educated and have an excellent grasp of numbers. Getting a job on the most powerful court in the US requires showing that instrumental music isn't played at your church?

I'd say that is pretty strong evidence of the type of person we'd like to see on the Supreme Court. Also, it is just the sort of behavior i'd expect from a Christian.

You'll notice that Eric & Lisa's evaluation was mostly a laundry list of minor contributions with no actual writing of judgements or writing about judgements. (Gee, if evangelicals here insist we sell off gov't positions can't we at least demand a good price for them?) This job is to be a JUDGE remember...not control the Treasury at the PTA's bake sale.

38

Boonton writes (and Joe, you concurred?!):
A Justice committed to 'originalism' or even 'strict construction' would have had a hard time dissenting from the Dread Scott ruling back then.

Have neither of you ever heard of Abraham Lincoln's "Cooper Union Address", viz., the one that gained him the respect of Eastern, anti-slavery Republicans and so paved the way for his nomination?? Lincoln laid out a clear, strong ORIGINALIST case against the Dred Scott decision (in part by detailing every recorded vote of the founders, early members of Congress on the positions overruled by Taney's horrendous ruling).

Check it out and read the discussion in Harold Holzer's Lincoln at Cooper Union : The Speech That Made Abraham Lincoln President at Amazon. (Order a copy through Marketplace for a song! Also helpful for debunking some recently revived anti-Lincoln charges.)

In the 1850s the constitutional validity of the Dred Scott decision was questioned every bit as much as Roe v Wade today. Sorry, the "common" knowledge that Dred Scott simply upheld the U.S. Constitution (much less that there was agreement on this point) is . . . DEAD WRONG!

39

I found this nifty site that both ahs the speech plus this following summary:

The carefully crafted speech examined the views of the 39 signers of the Constitution. Lincoln noted that at least 21 of them -- a majority -- believed Congress should control slavery in the territories, not allow it to expand. Thus, the Republican stance of the time was not revolutionary, but similar to the Founding Fathers, and should not alarm Southerners (radicals had threatened to secede if a Republican was elected President).

http://showcase.netins.net/web/creative/lincoln/speeches/cooper.htm

You may be technically right that there was an Originalist argument against the Dread Scott finding that slavery was ok everywhere in the US yet Lincoln was hardly arguing an Originalist anti-slavery platform. He was limiting himself to the argument that the Federal Gov't had the right to prohibit slavery in the territories and new states. Note his conclusion:

Wrong as we think slavery is, we can yet afford to let it alone where it is, because that much is due to the necessity arising from its actual presence in the nation; but can we, while our votes will prevent it, allow it to spread into the National Territories, and to overrun us here in these Free States?

Lincoln would have been on very shakey ground if he wanted to mount a serious argument that the Founders intended the Constitution or the Bill of Rights to ban slavery. Dred Scott actually incorporated an interesting piece of logic from the Lincoln speech you cited:

[Lincoln]Demanding what they [slavery supports] do, and for the reason they do, they can voluntarily stop nowhere short of this consummation. Holding, as they do, that slavery is morally right, and socially elevating, they cannot cease to demand a full national recognition of it, as a legal right, and a social blessing.

Nor can we justifiably withhold this, on any ground save our conviction that slavery is wrong. If slavery is right, all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away. If it is right, we cannot justly object to its nationality - its universality; if it is wrong, they cannot justly insist upon its extension - its enlargement. All they ask, we could readily grant, if we thought slavery right; all we ask, they could as readily grant, if they thought it wrong. Their thinking it right, and our thinking it wrong, is the precise fact upon which depends the whole controversy. Thinking it right, as they do, they are not to blame for desiring its full recognition, as being right; but, thinking it wrong, as we do, can we yield to them? Can we cast our votes with their view, and against our own? In view of our moral, social, and political responsibilities, can we do this?

In other words slavery was either unconstitutional or private property. Dred Scott ruled that if slaves are property a state or territory cannot simply dissolve a citizen's ownership of his property because he passes through it. Like Lincoln, Dred Scott took the argument to its logical conclusion...if slavery was moral then the only logical thing to do is demand it be legal through out the US. If wrong then it should not be legal. Lincoln was only willing to accept 'containment' out of necessity.

It's interestingly if you want to adopt the analogy to abortion then Lincoln's argument carries weight. Either abortion should be outlawed throughout the US or it should not. It doesn't follow that every state should 'decide for itself' anymore than a state should decide slavery or genocide 'for itself'.

40

So let's take a step back. Lincoln was willing to contain slavery out of necessity to keep the Union together. His primary purpose was necessity...not correctly reading the Constitution no matter what the consequences. His behavior during the Civil War in regards to civil liberties confirms this. He took the sensible position that it doesn't really matter what the Constitution says if there won't be any union left to preserve it.

Lincoln, though, was not sitting on the Supreme Court and he never took the oath that a S.C. Justice does. If you accept Lincoln's logic on one hand (slavery is either right or wrong, if right it should be legal everywhere, if wrong nowhere) and also accept that the Constitution did not outlaw slavery then Dred Scott is a logical ruling. At best you would fall back only to Lincoln's 'containment' strategy.

41

Fyi, here's more wingnuts mocking the Supreme Court:

Let me tell you this from the perspective of someone who litigates cases regularly in the Supreme Court of the United States. I'm involved in three three cases at the Court this Term, and believe me: I want Harriet Meirs up there voting on these critical cases.

That was Jay Sekulow in a conference call to the White House re the Miers nomination.

Why would Jay Sekulow want Harriet Meirs on the Supreme Court for those "critical cases"?

Has Harriet Meirs demonstrated a profound ability to understand the exceedingly complex legal arguments that Jay Sekulow plans to make?

Or is Jay Sekulow referring to some other trait of Harriet Meirs that Jabberin' Jay would find "useful" to his "cause"?

Fyi -- if you want to find a human being who has contributed mightily to the morphing of Christianity from a serious religion to an empty and meaningless historical curiosity, Jay Sekulow should be at the top of your list.

42

Required reading:

http://www.aclupa.org/downloads/WA100505.pdf

This is the transcript of Barbara Forrest's testimony before the court in Dover regarding intelligent design and creationism.

As you read it, ask yourself how the court proceedings would be expected to differ if it was presumed that deities (or at least the Judeo-Christian deity) "exist" in the same way that my coffee cup "exists."

And then ask yourself if that sort of legal system if the sort of legal system you want in this country.

This last question is important because that is the sort of legal system that the Johnsonite Christians are asking for.

43

Boonton,

"You'll notice that Eric & Lisa's evaluation was mostly a laundry list of minor contributions with no actual writing of judgements or writing about judgements. (Gee, if evangelicals here insist we sell off gov't positions can't we at least demand a good price for them?) This job is to be a JUDGE remember...not control the Treasury at the PTA's bake sale."

There is a reason for that. I actually think the more divorced from practicing law a person is the better judge they'd make. So for the Miers nomination it is a step in the right direction, although, not far enough.

I'd like to see other proffessionals nominated to be supreme court justices and do not for a moment believe that our constitution is that complicated. Doctors, business professionals, university teachers, scientists, etc should all be viable candidates for the supreme court.

Those with too many years in legal practice get too mired down in hogwash.

44

Eric and Lisa --

Just curious, did you ever read Heinlein's The Moon is a Harsh Mistress?

He explores the terrain of plebian judges in that one quite thoroughly, as I recall.

45

Boonton writes:
You may be technically right that there was an Originalist argument against the Dread Scott finding that slavery was ok everywhere in the US yet Lincoln was hardly arguing an Originalist anti-slavery platform. He was limiting himself to the argument that the Federal Gov't had the right to prohibit slavery in the territories and new states.

No, Lincoln's address did not argue that slavery was itself unconsititutional. Nor did I claim he was doing so. But the argument he DID advance --that Congress could prohibit slavery in the territories-- WAS very much based on an "originalist" method.

So, I still disagree with your original claim that A Justice committed to 'originalism' or even 'strict construction' would have had a hard time dissenting from the Dread Scott ruling back then.

In fact, there is much more to the 'originalist' critique of the Dred Scott decision. A starting point would be Justice Curtis's eloquent dissent.

Among other *constitutional* objections, he actually considered the "property" angle that you raise. He maintained that a state did, in fact, have to right to deprive an individual of a slave even as "property", so long as done under "due process of law."

In fact, Lincoln (and others, I'm sure) developed this argument. It appears in notes he prepared for his 1858 debates with Douglass (though that particular debate did not end up being held). I cannot find an original source right now, but here is the version currently posted in another forum:

The Constitution itself impliedly admits that a person may be deprived of property by “due process of law,” and the Republicans hold that if there be a law of Congress or territorial legislature telling the slaveholder in advance that he shall not bring his slave into the Territory upon pain of forfeiture, and he still will bring him he will be deprived of his property in such slave by “due process of law.” And the same would be true in the case of taking a slave into a State against a State constitution or law prohibiting slavery.

While it is true that, prior to the 13th amendment one would be hard-pressed to argue for a national ban on slavery on'originalist' grounds (though one could still fight for state laws to end it), there were widespread originalist arguments being advanced against the Dred Scott decision. The idea that somehow, Dred Scott rested on a solid constitutional footing, much less that contemporaries thought so is, as I asserted above, DEAD WRONG. In this regard it is not so different from Roe v Wade (except, perhaps, in the fact that there are who LIKE the outcome of Roe but agree that it's constitutional basis is absurd.)

46

There is a reason for that. I actually think the more divorced from practicing law a person is the better judge they'd make. So for the Miers nomination it is a step in the right direction, although, not far enough.

How about that Wheel of Chance they used in Mad Max:Beyond Thunderdome? It had Mel Gibson in it!

While it is true that, prior to the 13th amendment one would be hard-pressed to argue for a national ban on slavery on'originalist' grounds (though one could still fight for state laws to end it), there were widespread originalist arguments being advanced against the Dred Scott decision. The idea that somehow, Dred Scott rested on a solid constitutional footing, much less that contemporaries thought so is, as I asserted above, DEAD WRONG. In this regard it is not so different from Roe v Wade (except, perhaps, in the fact that there are who LIKE the outcome of Roe but agree that it's constitutional basis is absurd.)

I'm not going to disagree with you all that much bruhaha. I'm going to note though that Dred scott, if it was wrong on the Constitution, was not wrong because it was a 'grave injustice'. In fact, as you yourself noted, the injustice of slavery was tacitly supported by the Constitution or at best you could say the Constitution was agnostic on it.

I think it is ironic to note that if you read what Lincoln said you'll pick up the differences between Roe and Dread. For one thing the efforts of Lincoln and others before the Civil War to 'let the states decide' was a total failure as were efforts to 'contain slavery' that the Dred Scott ruling put an end to. If the ruling had gone the other way it may have delayed the Civil War by a few years but not many IMO. Lincoln was correct in that slavery cried out for a national solution and the only reason he wasn't pushing one in his speech was because he still thought there was a way to dodge all out Civil War.

Why should Roe be decided by the states? Seriously? If abortion is murder then you can't assert the states have a right to decide to decriminalize homicide against a class of persons within their borders. If abortion is a matter of individual autonomy over their bodies then why should the legislative gov't (whether it be Congress or the states) be able to violate that?

47

Senate Judiciary Chairman Arlen Specter announced today he will delay confirmation hearings for Supreme Court nominee Harriet Miers until he can locate some Senators who are intellectually qualified to question her on the finer points of Constitutional law.

48

Locate some Senators? Doesn't the Judiciary committee itself question her? Perhaps he means he needs to locate Republican Senators that he wants to the the bulk of the questioning for the GOP side. Since the GOP is hardly unified on her I would imagine the members would want to all come up with their own questions.

49

It was a joke Boonton. The fact is that the number one concern of the Judiciary Committee will be Meirs' "intellectual qualifications." But the fact is that those committee members; Biden, Kennedy, Leahy, Hatch, Specter, and Boxer all combined could not match the intellectual capabilities of Bork, and they turned him down anyway. If you witnessed the complete folly of Boxer questioning Roberts recently, you would know what I mean. When Kennedy was asked what questions he would ask Meirs to test her moral compass, he replied, "I dunno, I'll drive off that bridge when I get there."
BTW, regardless of whether or not he gets a reccomendation from the committee, it will still go to a full vote of the Senate.

50

You did not get Eric & Lisa's memo; any idiot can be a SC Justice so why can't idiots also serve on the Senate Judiciary Committee???

More seriously though Bork may have had better intellectual capacities than most that doesn't mean he would have been a good judge. While a lot of the cirticism of him was hysterical and over the top the fact remained that his philosophy was too far to the right for many. While you can be a brilliant extremist that doesn't mean you get the job.