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?