Monday, October 17, 2005

Miers update

Richard Bennet has an interesting theory on Harriet Miers:

Bush doesn’t care about abortion, and neither do the bibliocons. They understand that even if the Supreme Court was to strike down Roe, the states would legalize it anyway, and they’d lose their moral authority. It’s one thing to say that five men in black robes are imposing their personal views on you, and quite another to be faced with the certain knowledge that the people hold values that define you as outside the mainstream. So it’s best if Roe stays intact and the conservative movement has the issue to complain about.

The real problem that bibliocons have with the court showed up earlier this year in the great shouting match over the corpse of Terri Schiavo. All along the bibliocons and paleocons had been telling us they were fed-up with activist judges getting involved in state and local issues where they didn’t belong, but suddenly they were all over the courts for refusing to be activist with respect to the family and the State of Florida. So it became clear that the right wants the mirror image of what the left wants, an activist bench that is willing to impose its personal values and beliefs on the rest of us.

Looking for judges who have that sort of orientation is a hard search, because the conservative team that the right’s been grooming since Roe (Luttig, McConnell, Olsen, et. al.) is all about judicial restraint, and none of them can be relied upon to jump into the breech on Schiavo-type cases and do the right thing by the right. So Bush had to ignore the conservative farm team and draft a close personal friend with the proper religious credentials and the requisite lack of judicial hang-ups.


John Cole thinks Bennnett may be on to something.

But why does anyone think that Harriet Miers will rule on the basis of her "religious credentials" rather than follow the law? Aren't the religious conservatives who now seem to be pushing this notion actually promoting a noxious stereotype about "people of faith"? Reality check: Judge George Greer, the Florida judge who originally issued the order to withhold artificial nutrition and hydration to the undead body of Terri Schiavo, is a deeply religious conservative Christian.

Meanwhile, John Fund reports that two personal friends of Miers's, both sitting judges in Texas, personally assured James Dobson and other religious right leaders in a conference call that Miers will vote to strike down Roe v. Wade if she has the opportunity.

My own hunch is that Miers is a pragmatist, not an ideologue, and that she will sorely disappoint the theocons who have bought into the "she's one of us" brand of identity politics.

Meanwhile, Eric Muller replies to my post on whether the criticism of Miers on the grounds that her career has been primarily in the private sector is fair or snobbish. Eric believes that the real issue is that Miers "has spent her professional life pretty much wholly outside the sorts of legal conversations that are common among top government lawyers." Former Bush assistant Matthew Scully disagrees. Meanwhile, Juan Non-Volokh heretically suggests that expertise in constitutional law is not the be-all and end-all of qualifications for a Supreme Court justice:

My point is not the constitutional law is unimportant for prospective Supreme Court justices. I just think that those of us who teach and write in the area are inclined to exaggerate its importance on the Court. I care about a prospective justice's approach to constitutional interpretation as much as the next legal blogger, but it's hardly the only question I consider important in considering a nominee. Indeed, I would argue that a Supreme Court with a wider array of experience would be better than one made up of nine experts in constitutional law. Experience as a prosecutor or criminal defense attorney is likely makes a prospective justice more qualified to consider criminal procedure cases than a unified theory of federalism, representation-reinforcement, or judicial review of legislative action.

I find this argument persuasive. Maybe it's just because the piling-on makes me want to root for Miers. My hope is that she will get confirmed, and will quickly show herself to be a member of the independent judiciary -- not a loyal sevant to any leader or movement.

Just call me Ms. Rosy Scenario.

Update: Via Andrew Sullivan, an interesting juxtaposition, at Info-Theory, of two conflicting quotes from Texas Supreme Court justice Nathan L. Hecht, one of the "Friends of Harriet" who participated in that speakerphone conference with leaders of the religious right.

From John Fund's account:

What followed, according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"

"Absolutely," said Judge Kinkeade.

"I agree with that," said Justice Hecht. "I concur."

And from an October 5 article in the Pittsburgh Post-Gazette:

But Justice Hecht also said he couldn't predict how Ms. Miers might vote on a challenge to Roe v. Wade.

"If you're asking, 'Is she going vote to overrule Roe v. Wade, or Lawrence v. Texas [a 2003 decision striking down Texas' law against same-sex sodomy], I don't know that you can ask anyone that because you don't know until you are there."

Will the real Justice Hecht -- and the real Ms. Miers -- please stand up?



14 comments:

protein wisdom said...

I think you're right about Miers being a pragmatist. And I've been writing all along that such is the greatest fear legal conservatives should have wrt a Miers appointment. After all, this way the knock on O'Connor.

The problem with Miers' record is not that we don't know how she'll vote on particular issues (when Roberts was nominated, I criticized Ann Coulter and others for demanding to know such things); rather, the problem is that we have no way of teasing out a judicial philosophy from her record, which means we must rely on Bush's word, and on whatever we're able to glean from her political record.

Bush tells us he knows Miers, and has hinted that she shares his political viewpoints -- something he assumed would hearten his base, because he incorrectly identified his base on judicial issues as social conservatives of the Dobson school. But the people fighting this nomination are those who aren't interested in an outcome-based judiciary. Instead, they are interested in someone who will reach favorable (to the conservative cause) decisions based on a particular judicial temperament and way of reading and interpreting the Constitution and case law that will necessarily lead them there.

In short, they want intellectual vindication.

Richard Bennett's theory is interesting, but it gives the White House way too much Manichean street cred -- while at the same time suggesting it is as duplicitous as the Kos Kidz dream it to be. No, I think Bush thought the social conservatives who he believed made up his base would understand the need for a stealth pick -- and that they would accept Miers with a wink and a nod because she is an evangelical.

Anonymous said...

It's been suggested elsewhere that Miers' nomination isn't about Roe at all: it's about loyalty to Bush. He acts like he's appointing his personal vote to the bench, getting his person inside to do his dirty work, something I have to think is attractive to someone who is president only by being appointed as such by the conservatives of SCOTUS. I can't help but agree. So what Miers might actually do based on her own opinions is irrelevant. She will do what Bush tells her to do lest she displease him

Richard Bennett said...

There's a big difference between Judge Greer's religiosity and that of Miers. Greer is a mainstream Southern Baptist, just like Jimmy Carter and Bill Clinton, somebody who knows how to compartmentalize his religion so that it doesn't intrude on his job. But Miers is a born-again, one of the people who put religion and loyalty above principle. She strikes me as the anti-Greer.

Cathy Young said...

Richard, is there anything in Miers's past career to indicate she is an ideologue of this sort?

Phinn said...

Maybe it's just because the piling-on makes me want to root for Miers.

Ah, the voice of peurile spite. Lovely.

Richard Bennett said...

Yes, the born-again conversion. It's one thing to be a normal religious person, but that whole born-again thing is at a whole different level. akin to a nervous breakdown.

Cathy Young said...

That sounds like quite a sweeping generalization to me, Richard.

Richard Bennett said...

No doubt it is, but I've known enough born-agains to be comfortable with it in the absence of any evidence that Miers has a judicial philosophy per se.

peter hoh said...

I agree with the Bennet theory that savvy GOP operatives don't want to see Roe overturned.

However, the way Pat Robertson and others are selling this nomination makes it hard for me to believe that the court (with Bush appointees) could decide to uphold Roe without the GOP facing a backlash from the evangelical wing. Reagan and Bush the Elder got away with appointing judges who later affirmed Roe, but I don't think it will fly this time.

The evangelical wing will feel betrayed, and that will cost the Republicans.

peter hoh said...

Conversely, the court overturns Roe, and then the legislative process is unleashed. The bibliocons may see early victories in some states, but in the end, abortion will be legal in most states (if not all), and that will disillusion much of the evangelical base. They may turn against politics for a while.

Either way, I think that it will be hard for the GOP to exploit the abortion card much longer.

Revenant said...

I'm not sure what the basis is for saying abortion would remain legal at the state level if Roe vs Wade was overturned.

Certainly it would in some states; perhaps even most. But there are certainly states with pro-life majorities, and it seems reasonable to believe that abortion would be made illegal in those states.

Besides, demographics indicate that the portion of the country which is pro-choice will shrink in the coming decades. Add in the damage done by the Supreme Court overturning Roe vs Wade (there is a major propaganda advantage to having the SC on your side) and pro-lifers could be in a very good place ten or twenty years from now.

peter hoh said...

If there's a major propaganda advantage to having the SC on your side, why has the pro-life minority wielded so much power over the last 30 years?

Why do I think that most states will move to keep abortion legal? Because the pro-life side will splinter into the ones who want all abortions banned and those who want to allow for some exceptions.

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