October 9, 2005

Defending Miers, digging a deeper hole.

Kate O'Beirne made a pithy statement about the Miers nomination on "Meet the Press" today. The specific issue was the lack of judicial experience, and they'd just run a tape of Justice Scalia sounding positive about having "people with all sorts of backgrounds" on the Court.
MS. O'BEIRNE: The lack of judicial experience is not fundamentally important here. I agree with Justice Scalia. Look at Robert Bork in 1987. Robert Bork, of course, remains a hero to the conservatives. Nobody knew his personal views on any issues. Nobody asked his personal views on any issues because he had well-stated, well-understood views on the Constitution. Because Harriet Miers doesn't have those, surrogates of the White House are pointing to her personal opinions, which she shouldn't be bringing onto the Court, and to the fact that she's an evangelical Christian, which some supporters of the president find persuasive. We shouldn't care about what her personal creed is. We want her to be faithful to the Constitution. But they can't make those arguments on her behalf because she's expressed over the years no interest in or opinions on any of these constitutional issues.
Yes, this is a fundamental problem. Those most vocally opposed to the Miers nomination are strong social conservatives. But the attempt to win them back repels people who care about the proper functioning of the courts. In fact, early on the show they had Dr. Richard Land, of the Southern Baptist Convention, defending the Miers nomination, and he was saying things like this (when asked why he wasn't concerned that Miers would become "another Souter"):
Because I trust the president and this president is not those previous presidents. George W. Bush, if he's anything, is a man of his word. And if there's any issue that he's earned the trust of conservatives on, it's this issue. ... He picked a person he's known for 15 years, and I believe he picked her because he knows her that well and he knows that she will vote the way he would want her to vote.

MR. RUSSERT: In fact, there was a conference call on Thursday, originated by the White House, someone who claims to have been on the call has shared notes of that with the People for the American Way who've now put it on their Web site. And it has under Dr. Richard Land, you say, "I am from Texas. George W. Bush is from Texas and Harriet Miers is from Texas. And in Texas, we have two important values, courage and loyalty. If Harriet Miers didn't rule the way George W. Bush thought she would, he would see that as an act of betrayal and so would she." Is that accurate?

DR. LAND: It is. It's substantially accurate. I didn't say that those were the only two values. But those are two very important values. And if someone is disloyal, if someone betrays a trust, in Texas, they're right down there with child molesters and ax murderers. And I'm absolutely convinced this president believes absolutely in his heart, and this is not David Souter. George Bush 41 didn't know David Souter from Adam's cat until John Sununu introduced him. The president has known this woman. She's been intimately involved in the selection process for the last five years.
So, great, huh? If Miers doesn't go on the Court and vote the way George Bush wants her to vote, she's on a level with an ax murderer, according to the governing Texas values that are meant to reassure us.

43 comments:

Simon said...

The Scalia interview (which will run tommorow night on MSNBC, and if anyone can video tape it and send it to me I will be more than eternally gratefull, just shoot me an email) is being mischaracterized. From the snippet I saw on one of the Sunday shows, Our Hero didn’t really defend Miers, he merely made the point that there isn’t anyone on the court now with private practise experience, that it can be valuable, and that the politicization of the nomination process has made it almost impossible to put someone on the court. Of course, Scalia has also previously made the point that it is exceedingly difficult to get people confirmed to the court who have paper trails. I think it's a stretch to say that his remarks amount to a defense of Miers, rather than a truism that some of the complaints about her are overstated. They certainly are, but only to a certain extent, and the argument for her (which extends as far as "trust the President" and no further) is certainly overstated.

That having been said, I only saw a snippet, so maybe in context, he WAS defending her at some level. We shall see tommorow night. Even if he turns around and calls for her immediate confirmation by acclamation, I will not be gutted; I have disagreed with Justice Scalia before (Tyler Pipe Industries, 483 US 232, for example), and I look forward to continuing to disagree with Justice Scalia for many years yet.

downtownlad said...

Judges are not supposed to be independent. They are supposed to follow the text of the Constitution, which means they have to vote the way the Republican party platform tells them to vote.

For example, the Constitution clearly delegates power to the states. So Supreme Court Justices should decide with the state over the federal government. Except, of course, where those state laws contradict the Republican party platform. So on those issues, such as medical marijuana and assisted suicide, the proper thing to do according to original intent, is to side with the federal government over the states.

It's all very simple.

Ann Althouse said...

Simon: I didn't characterize Scalia as supporting her.

Simon said...

Ann-
Sorry, I guess I just misread that through the lines. A lot of outlets - Newsmax even has it on their frontpage - are characterizing Scalia's comments as a defesne.

DTL-
You're being silly. As far as Raich is concerned - I assume you're referring to Raich, at any rate - both Justice Scalia (concurring) and Justice Thomas (dissenting) put forth compelling arguments for their mutually opposed views on the case. I believe that Justice Thomas' dissent was "right" in this case, but Scalia's concurrence made a pretty decent case that the regulation could be sustained under

As regards the right to die case, I haven't followed this all that closely, but from my understanding of it, at issue is not whether there is a right to die in the state constitution (as was the question presented in Cruzan) or the Federal Constitution which can be judicially enforced against the states (which there certainly isn't), but rather, whether a state law can trump a duly-enacted and constitutionally valid Federal law.

If I'm mischaracterizing the current case, I apologize in advance.

alikarimbey said...

May be this analysis by Rick is what Bush knows about HM. But, then why was he against the Michigan ruling by SC?

http://electionlawblog.org/archives/004203.html

AKB

Troy said...

If only Texas values were governing...

The "evaneglical Christian" thing says 2 things. One it can be seen as basic shorthand to pro-lifers, but more importantly -- to those of use who are evangelicals (and it is a large group)... saying she's a Christian means she has principles of trustowrthiness and loyalty and honesty. Ideally -- when a Christian says "I will do my best to uphold the Constitution" she means it and will do so. "Evangelical Christian" -- assuming she's sincere (and that's what all the community, church, etc. stuff conveys) -- speaks volumes to a large section of his base.

He needs to be more explicit in comunicating her personal qualities to non-evangelicals.

I don't think she's qualified for the job, but "evangelical" communicates volumes of positive information to me -- some of it relevant some of it not to the job at hand.

Hell -- Jimmuh Carter is an evangelical Christian -- and he's the summum malum of Presidents.

I disagree with Kate O'Bierne that her personal creed is irrelevant. It has all the bearing in the world on how she'll uphold her oath of office and is insight to judicial temperament. If a post modern relativist holds to no absolute truth -- how can he be expected to be an originalist? etc. etc.

Wade_Garrett said...

Every time Richard Land opens his mouth, my skin starts to crawl. Every Texan is honest and keeps their word, except, presumably, George Bush, who raised taxes, Tom DeLay, who professes innocence, Ann Richards, who claims she's not a lesbian, and the residents of the liberal stronghold of Austin, who claim not to be Satan's minions on earth.

Wanda said...

"to those of use who are evangelicals (and it is a large group)... saying she's a Christian means she has principles of trustowrthiness and loyalty and honesty."

Well, of course you're going to see such a statement as a positive thing, and exemplifying the best qualities of your denomination. If instead I'd been told "She's a good Catholic," I'd be able to mentally fill in a background for her too, mostly composed of everything I like best about Catholicism. But this simply can't be conveyed to anyone outside one's own group. It amounts to saying, "She's got the most admirable qualities in the world...just like us. She's got the highest ideals and principles in the world...ours." It's meaningless to outsiders, and it doesn't matter what denomination uses the argument. It just doesn't work. I think it's lucky that it wasn't used to support John Roberts, because it wouldn't reassure anyone except Catholics.

Brent said...

Simon,
I had the privilege of meeting Scalia this past August when he spoke at Chapman University. In his speech he continually ridiculed the notion of "all-knowing" egghead judges. Without belaboring my discussion points with him, I believe that he would have no real problem with a Miers-type.

Troy,
as I tried to explain in an earlier Althouse comments post ("A good excuse for withdrawing the Miers nomination?") the evangelical part of the base is ALL THE White House REALLY HAS TO HAVE to win this one. It would be nice to explain the nomination satisfactorially to the other parts of the base, and I'm certain that they are working on it, but THE TRUTH IS, the only part of the base that really matters this time (I'm sorry if that offends) is the evangelical faction (not even the wider "born-again" or the widely ridiculed - and seemingly de-bunked - "values voter" are necessary this time).

All it takes for evangelicals to make us happy on the Court is the right vote on the right issues. Evangelicals, including evangelical intellectuals, don't place any priority on super opinions - just get us to the right action. Not "ends justify the means" - but right-directed thinking".

I can be wrong only if Miers does not stay the nominee, but again, Bush has already done the math - Evangelicals will provide whatever pressure necessary to the Senate if bush wants her.

In other words, to every conservative that doesn't like the Miers nomination - this time, you really don't matter.

Simon said...

when a Christian says "I will do my best to uphold the Constitution" she means it and will do so.

EVERY Supreme Court Justice believes they are doing their best to uphold the Constitution. Justice Breyer does not get up in the morning and contemplate how he can best undermine the Constition of the United States today; sincere belief that you are doing the right thing is meaningless. John Kerry believes - and I suspect many other catholics also believe - that there is no disconnect between his faith and his commitment to keeping legal the annual murder of a little over a million children every year.

Just saying that a person is a particular religion, or that there are good reasons to believe she will do the right thing is as meaningless as saying that you know she will have the same judicial philosophy in twenty years. She has offered no evidence that she HAS a judicial philosophy today, so how can she possibly commit to having the same one in twenty years?!

Simon said...

Brent,
As much as I envy your opportunity to even attend a Scalia lecture, let alone meet him, I don't necessarily agree. I think Scalia's point - and I say this with some confidence, as he really only has one speech that he makes when doing these law school tours, albeit with minor variations - is that he has a problem with Judges who claim the omnisciense to prescribe for society the right thing to do. The thrust of his criticism of that sort of Judge is not their intellectual firepower, but the end to which it is put: the usurpation of power by the judiciary from the legislatures.

Scalia has a problem with Judges taking questions off the democratic stage which the Constitution leaves there (Roe, Roper et al), and putting them on the democratic stage where the Constitution forbids (Craig, Kelo, et al). I don't think he intends a defense of mediocrity.

Ann Althouse said...

Simon: There is an argument there, though, that interpretation is easier when you're playing it straight. So if you put a reasonably competent lawyer on the Court and she's got strong character, she'll be able get things right.

Wanda said...

Brent: I understand that you must be excited to have one of "yours" finally on top, but you'd better keep the "you don't matter - we do" triumphalism talk quiet if you can. And if your reading is correct, you'd better hope that Harriet Miers really is the second coming of Robert Bork, because if she's anything less, and the rest of the Right sees that they taken a hit *because of you evangelicals*, your branch of the Right will find themselves outside the big tent and foraging for corn husks in the wilderness for the next 30 years. Evangelicals will never be allowed anywhere near the important power centers ever again, especially if the Right splits and the Democrats capitalize on it. Evangelicals only count because the Right is big; if it splits, you may find yourself dominating a splinter branch, but one that will have no likelihood of ever running anything again.

Brent said...

Simon,
you can be completely right in your last post and still not matter in this debate.
The math is that evangelicals ARE the true base of the Republican party (by the way, the vast majority of evangelicals DO NOT consider Jimmy Carter, Al Gore, or either of the Clintons to be "Evangelicals" - they are considered to be just born-again Christians) and though the numbers don't always add up on every issue, this one does:

1 vote away from undoing or at least weakening Roe and
1 vote away from protecting traditional marriage values

- in 3 weeks the base will begin to "taste victory", and believe me, if you didn't read the LA Times Friday article on the ability of Dobson's organization alone to mobilize phone banks, you're in for a shock. this will not be "Justice Sunday" - evangelicals were only partially motivated on that issue. Stay tuned.

Wanda,
your post is correct in every way, except that for Roberts, there were not enough Catholics in the base to make a difference if necessary.
there are enough evangelicals in the base to make a difference here if necessary.

Brent said...

Wanda,
Why should evangelicals be quiet in the base when every other faction delights in riduculing them as the retarded but sweet baby sister. Do the math:if evangelicals leave you are right that there will be no power base for us.

BUT, if evangelicals leave, to Quote Hugh Hewitt's incredibly prescient 2004 book "If It's Not Close, They Can't Cheat": if they (the evangelical part of the base) leaves the Republican Party as we know it today will completely cease to exist, and will enter most certainly an extended wandering in the desert.

Evangelicals don't frankly care about every issue and certainly don't agree on every issue - we know we're being played by the power brokers and will go along when practical. BUT, on the main issues that we do agree on - watch out.

We will take the 30 years if we can get 2 more pro-life and pro-marriage votes on the Court, because then can do what we do best - local changing of hearts and minds, even without the Republican Party.

So no, we will not be looking to leave, but you as well had better hope that we don't, because it will be the end of YOUR power base as well.

Wade_Garrett said...

Brent,

Possibly because so many Evangelicals act like retarded baby sisters.

I have a lot of friends who are evangelical Christians, so I am going to try to be careful about how I phrase this. Take the creationism v. evolution debate. The creationist view of the beginning of the planet earth is mainfestly wrong. Faith isn't sticking up for long-disproven superstitions and ignoring science. Faith is about questions we CAN'T answer. And until evangelicals, who claim to be so religious, figure that out a lot of us 'egg-heads' are going to look at you in that way.

Harriet Miers' only qualifications for the Supreme Court seems to be that 1) she passed a bar exam 2) President Bush trusts her to deliver votes along the Republican party-line. To argue that she will be a good justice because she will deliver favorable votes on abortion and issues concerning gay people is to indulge in the absolute worst sort of ends-driven jurisprudence that leading conservatives have criticized for 40 years.

Brent said...

Terrence,
Say what you will - the point again
this time, this fight: you are irrelevant.

Brent said...

Terrence-
By the way, you talk about your evangelical friends the way Klan members talk about some of their best friends being black.
In other words,you are a bigot.

Kevin Murphy said...

I'm hardly a social conservative, given that I have no real issue with abortion (other than disliking Roe), and support gay marriage. Yet I oppose Miers on three grounds:

1. I belive the President when he says she IS a social conservative.

2. She's unqualified. A justice is a voice, not just a vote. No sock puppets need apply.

3. Her attitudes on the matters I do care about (e.g. federalism, speech, economic freedom) are probably more in line with the President's than I care for. Bush's "conservatism" doesn't seem to range much further than Dobson's.

Wade_Garrett said...

Brent,

Firstly, I am not a bigot and I don't have to explain the reasons why.

Secondly, why is it that every time the Republicans feel the need to win an argument, they invoke the racism of the other side? President Bush compared Roe v. Wade to the Dred Scott on national television. When Senate Democrats threaten to filibuster in response to conservative-ideologue judges who are clearly out of the judicial mainstrem, Republicans run adds stating that 'the tactic once used to defend slavery is now being used to prevent the President from fulfilling his Constitutional duties.' When somebody who has read a fifth-grade science textbook points out that pretty much every accredited scientist in the world believes in Darwin's theory of evolution, they're called anti-evanglical bigots.

Well, I've got news for you. Sure, the filibuster was used to defend slavery, but then the U.S. Constitution, the Congressional 'yea' vote, the Congressional 'nay' vote, and the Presidental veto were all used to defend slavery. So by that rationale, when Rick Santorum votes 'yea' to a military appropriation, he is using a tactic once used to defend slavery.

Brent said...

Kevin,
Unqualified?
Under what statute or amendment?
Less qualified than others - certainly.
But "unqualified"?
By whose authority?

Wanda said...

"So no, we will not be looking to leave, but you as well had better hope that we don't, because it will be the end of YOUR power base as well."

Frankly, I was hinting at the exact opposite - at the moment, it's the non-evangelicals who are mad as hornets at Bush, and THEY are the ones who could leave. That would leave you folks in command of a broken party no longer able to win anything. Furthermore, I don't believe your grandiose assertions of how important evangelicals are to the Republican party. It's normal for people who are part of a small but intense group to over-estimate their importance. Moveon.org and DU are all convinced that they're the indispensible heart and soul of the Democratic Party too, and yet it's obvious to anyone outside their hothouse atmosphere that they're not. The Republican Party is very big and very diverse, and a minority is still a minority. Finally, you're not doing your cause any favors with all this pride and blustering about how it's all in the bag and everyone else can just eat your dust. The first posts in this thread started off listing all the positive things associated with being an evangelical. By now, all I can think is that Harriet Miers might be someone just like you.

Wade_Garrett said...

Brent-

If your standard is: "anybody not prohibited from holding office by a statute or amendment is de facto qualified," then yes, Harriet Miers is qualified to sit on the U.S. Supreme Court.

However, by this same standard, Carrot Top is qualified to be President of the United States and Jane Fonda is qualified to be Secretary of Defense.

Brent said...

Terrence,
I can appreciate you saying that you are not a bigot. No one likes to be called one.
You then proceed to stereotype all Republicans ("every time")and all evangelicals by inference as anti-Darwinists" - can you see the road you're going down here?

Let me give you a quick example. It is generally true in the egvangelical Christian Church (those that claim to be evangelical churches, not put-upon by the press or media)that the theory of evolution is questioned as to accurately explaining life's origins, especially when so much of it is presented in many (not all) "fifth-grade textbooks" that also come just shy of ridculing the creation story in Genesis (be careful Terrence - I own 3 such textbooks, one from 1988 that plainly chides "superstitions about how the world was created by gods").
That said, there is much that can be thoughtfully debated regarding origins. I, nor my friends, nor any of the leaders of today's evangelicals ridicule the belief system that leads someone to believe wholeheartedly what he reads in a textbook. And we do not consider those who want evolution only to be taught in science class as anti-Christian bigots. We do consider them to be "uniformed on the full issue". Do you see?
Uniformed does not equal anti-Christian.
That said, this issue, unlike abortion and untraditional marriage, does not have as wide a consensus any more than the proporer care and feeding of the filibuster does among Republicans (example: the gang of 14)

Wade_Garrett said...

Brent -

I wont say too much more, because this is Professor Althouse's blog, not mine. However, one can generalize ("Republicans like George W. Bush") without being a bigot. Similarly, the words "so many" do not mean "all." Do you really think that, when I said "Republicans ran an advertisement" I meant that ALL Republicans ran an advertisement? Give me a break.

Brent said...

Wanda,
I appreciate the bait you through out with words like "pride" and "bluster".
Nice try.
Here are the facts:
No one faction alone can completely steer the Republican Party at one time. There are as many competeing interests as there are groups, or individuals for that matter.
That said, while any single group could "leave" the Republican fold and do some damage, there are several groups that will leave it damaged beyond reasonable recovery - a shell of what it is, uynable to save as many as 28 seats in closely-held congressional districts. The overall largest in voting numbers of those groups is EVANGELICALS (shudder).
Every study done since 1998 supports it (even mainstream journalists have reported it: Barone, Rasmussen, Brooks, Pew). Most non-evangelicals don't want to believe it's the case. AND, most evangelicals don't know it! (Remember - this is not necessarily the "values" voter). But Bush (and Rove, and Gillespie, and Cheney, et al.) DO KNOW IT.

So, Wanda, Facts: can't live with 'em, can't live without 'em.

Don't worry - we won't be at everycorner on every issue - perhaps just the ones that matter eternally.

Goesh said...

- all this before the hearings even start. No President would have a dummy for his/her attorney. Will she hold up, will she be strong and concise, will she fumble the ball and be contrite? I wonder how many hours of mock hearings she is going through?

Wanda said...

Good. I was sure you'd notice.

Simon said...

Terrence,
President Bush compared Roe v. Wade to the Dred Scott on national television.

That has nothing whatsoever to do with racism - it is an entirely appropriate analogue. Both cases were decided on substantive due process grounds; you cannot distinguish Roe from Dred Scott other than in terms of whether you like the outcome. From a point of view of legal reasoning, they are both identical - they both found a right that doesn't exist in a due process clause.

Brent,
Whether we are relevant or not, that will not (and has not) stopped us from trying to influence those who are very relevant: GOP Senators. If evangelicals support Miers on no more basis than she will overturn Roe - a monstrously flawed judgementt though that case may be - they lose forever their right to complain about activist Judges. They will be left with one thing and only one thing to say about Judges: that guy is an activist judge for a cause other than ours. The public support the GOP's stand against activist Judges, on returning Judges to neutral arbiters of what the law says. It will not support, I don't think, activist judging with a different set of results in mind, any more than it supports activist judging with conservative results in mind. The complaint isn't legislating liberal policy from the bench - the complaint is legislating from the bench, period.

The reality is that once Roe is overturned, most states will criminalize abortion. Some won't. After a couple of elections, this situation will normalize, and most states will havea right to life. Pro-choice folks say that the majority suports abortion rights, but the amount of faith they have in this view is measured by how tenaciously they defend Roe. No pro-life majority, no need for Roe. But if some states do have a majority for choice, we have to go along with this, or at least, win the argument. My beef is that this is a democracy, not a judicial oligarchy. Liberal oligarchs, conservative oligarchs - there's no difference, and I don't want either of them

Sloanasaurus said...

Perhaps after interviewing all the relevant candidates, Bush was never able to trust anyone. So he decided to appoint himself and Texas via Harriet Miers.

It seems plausible enough to me.

How does one change political philosophies at age 61 without abandoning the group of people they hang out with. Do you think Harriet Miers will all of a sudden become cosy with the non-religious abortion loving folks inside the beltway. No way.

Simon said...

Sloan - She'll drift (cf. comments here. Justices who lack a firm anchor drift, period. Justices who are not firmly committed to process over results, drift. There are two process-oriented Justices on the Court - they have not drifted. Souter is not. He drifted. Kennedy is not. He drifted. O'Connor is not. She drifted. So will Miers.

Wade_Garrett said...

Simon,

Sure, Dred Scott and Roe both hinged on substantive due process. From a point of common-sense reasoning, it was a blatant attempt to conflate the Democrats with racism. So much of Bush's rhetoric consists of little codewords that certain audiences pick up on -- and those in right-to-life circles commonly use Dred Scott as an analogue to Roe v. Wade. For the rest of the public, it came across as Bush trying to paint Democrats as racist.

Also, Simon, there is a good argument to be made that Scalia is just as activist as any judge on the bench, only he's activist in a way that conservatives tend to favor. In my humble opinion his 'originalist' school of thought is mere smoke and mirrors. When the writings of Alexander Hamilton were cited in an oral argument to bolster the 'liberal' side of a lawsuit, Scalia responded by saying that Hamilton was drafting a Constitution, not interpreting one. In other words, I will attribute intent to the Founding Fathers when it supports causes in which I believe. In my opinion, Scalia is very result-oriented.

Brent said...

Simon,
The "drifting" analogy as well as your previous post to me presupposes that Miers is not committed to a bedrock foundation of Constitutional interpretation. That, I believe is the true "process" as you call it. I'm curious as to why you believe that a fundamental belief in, say "strict constructionism" which would lead one to believe that Roe was wrongly decided, would therefore lead to an "activist" overturning of a wrongly "activist" ruling?
I realize that is a generalization of a complex issue regarding interpretations. I simply do not agree that voting for someone who has a certain well-developed philosophy that would logically, in most cases, lead someone to a likely result makes someone an "activist".
If Roe is wrongly decided, then the basic principal of undoing the wrong is not "activist" - "stare decisis" be damned.

What scares most non-evangelicals that I have had discussions with on this issue (yes, very civil open-ended discussions) is that the Constitution being interpreted by its plain meaning will logically lead to more decisions that many non-belivers frankly admit to being
scared to death of: religious freedom will be less, not more curtailed, and moral issues will be decided by democratic means.

Yes, Simon, evangelicals are ready for Roe to go to the states - I know that's scary, but it is, dare I say it . . . fair and right in this Constitutional Republic. We are ready to debate one on one - the national fear is that we will win one on one.

Wade_Garrett said...

Conservatives don't want gay marriage left up to the states, and that's not the only issue for which that is the case. They are so afraid of it that, with a straight face, they proposed amending the Constitution to prevent it from happening.

I think its naive to think that the Republicans want to overturn Roe v. Wade. If that ever happened, they would lose their biggest campaign issue. Consider how the Republicans had a chance to cut taxes for all brackets, instead of just select brackets. They did it so that they could campaign on the "we've still got work to do" theme, despite the fact that it was work they could easily have finished years ago. Who was going to stop them, the Democrats, who were in the minority of both houses of Congress? The President himself?

Sloanasaurus said...

Here is an interesting quote about Souter from the Times:

"...Of the justices on the current court, the one who forged the closest bond with Justice Blackmun was Justice David H. Souter. From their affectionate correspondence, the two Harvard College and Harvard Law School graduates appear to have been kindred souls. Not only were both meticulous, they also shared a love of the northern landscape..."

How wonderful for Souter and Blackmun! Can you imagine Miers hanging out with any of the liberal justices? I can’t.

I wrote more about it on the John Adams Society Blog.

Simon said...

Terrence - it really doesn't matter what Bush's intentions were in using it, he was still right. Roe was wrongly decided, and it was decided on exactly the same grounds as Dred Scott, Lochner, Adkins and so on. As far as Scalia's occaisionaly departures from originalism are concerned - he does occaisionally depart. No doubt about it. But to claim that this means there is something fundamentally wrong with originalism as a theory is like suggesting that the antics of Jesse Jackson or Pat Robertson constitute an argument against Christianity. People are fallible, including Nino.

Brent - if I'm understanding you correctly, I think you're asking me why I would conclude Roe was wrongly decided yet oppose overruling it. Let me make myself more clear if I had not already. Roe was an abomination. Not because I'm pro life, but because it was an attempt - successfull, it wold appear - to impose a moral choice on society by raw fiat dressed up in judicial robes. It was wrongly decided, and both it and its progeny should be overturned forthwith. Furthermore, there would be nothing activist about overturning Roe. See Less nebulous than you'd think, 9/23/05. I don't think there is substantial difference between our opinions on this issue.

As for people being afraid of a return to the original understanding, I agree that people are afraid, but they are afraid because the liberals have told them for years that we should be ruled by the courts. That is why the argument must be reframed to be a choice between judicial oligarchy or democracy. Put into those terms, the public will choose democracy. This is also another reason I'm mad at Bush's rose garden press conerence, where he yet again refused to actually confront and destroy the liberal idea of Roe as a shibboleth.

Lastly, you are correct, and as I noted in my 9:46 post, taken on merits, we will win. But to do that, we must stop shying away from the issue. We must not have stealth candidates who lack either convictions or the courage of their convictions. We must not have Presidents who say "I've not talked to Harriet about abortion", but rather, say "Roe was wrongly decided, it should be overruled, and the people should choose democratically whether they want abortion in their state". We should have nominees who will look Joe Biden in the eye and say, "Yes, Senator, Griswold was wrongly decided, and now I'm going to explain to you why." We need Justices who can write exceptional dissents such that even when we lose a case, the next generation of law students read the dissent and go "wow, Justice X was right - I'm going to go join the Federalist Society and help fix what's wrong with this country!" We must not pretend that the liberal Justices are dumb, we must realize that they are very smart and send Justices to do battle with them who are every bit as good if not better. We must win the intellectual argument. And Harriet Miers will be none of these things. If we are lucky, we might get five years of good votes out of her. Go back and look at O'Connor's record. At Kennedy's. They were both pretty good, for a little while. Understand that this woman is going to be on the court for more than twenty years. She'll drift. She's a mistake, and her name should be withdrawn, for the damage she will do to the Supreme Court, for the damage she will do to the conservative legal movement, and for the damage she is already doing to the GOP.

Simon said...

Conservatives don't want gay marriage left up to the states

What we want is irrelevant. What the Constitution gives is is what is relevant, whether a few zealots in the movement like it or not. The Constitution says nothing about marriage, heterosexual or homosexual, and the matter is therefore reserved to the states. Period. The same goes for abortion. There is no Federal constitutional right, there is no Federal power of action, it is a state matter.


I think its naive to think that the Republicans want to overturn Roe v. Wade. If that ever happened, they would lose their biggest campaign issue.

We'll take our chances. It's the right thing to do, it is a legal necessity that the case be wiped off the books, and a moral imperative to lead the movement to ban abortion Roe having been overruled.

Sloanasaurus said...

"...I think its naive to think that the Republicans want to overturn Roe v. Wade. If that ever happened, they would lose their biggest campaign issue...."

Don't you think its even bigger on the left. I guess the campaign issue would cancel itself out.

Brent said...

Terrence,
Let's take a deep breath and look at reality.

"Conservatives don't want gay marriage left to the states". Why not?
The country - not just conservatives - doesn't want gay marriage. The one state thatmandates gay marriage did so in a court - not through the democratic process.

A constitutional amendment on any issue is still part of the democratic process, and is constitutional- not court driven.

And finally, Terrence,
please don't continue to buy into the left's wishful thinking about Republicans not wanting to truly overturn Roe. While many Republicans - and numerous conservatives for that matter - support legalized abortion and probably do not want Roe overturned, there is a very strong majority of Republicans that do want it overturned. The political will is not always there, but when it happens in the court - the only place it can happen, Terrence, it will be the beginning of, as Simon pointed out, a whole new political state - to - state reality.

Wade_Garrett said...

Brent,

If we left everything up to state legislatures, we would still have de jure segregation in public schools, unrepresented criminal defendants, and any number of other social ills I will not take the space to list.

Often, the court is the only institution with the guts to act -- and once they do, people eventually come to see the wisdom of the court's decision. The gay marriage issue is a good one -- a vast majority of the legislature has been won over to supporting gay marriage, and anti-gay marriage forces are paying citizens $1 per signature to fill up petitions.

Simon said...

If we left everything up to state legislatures, we would still have de jure segregation in public schools

This argument is always trotted out, but it is based on a faulty assumption: that Brown was extraconstitutional judicial activism. It was not; the constitution plainly forbids segregation, as Bork and Scalia have ben at pains to point out. The reasoning in Brown may have been flawed, but the result was correct.


Often, the court is the only institution with the guts to act -- and once they do, people eventually come to see the wisdom of the court's decision...

Often, the King is the only person with the guts to act -- and once they do, people eventually come to see the wisdom of the King's decision...

Look, suppose the court was finding rights that you DON'T think are a good idea. Suppose they struck down the minimum wage because it violated a substantive due process right to freedom of contract. That right is no more or less supported by the text of the constitution than the right to an abortion, which is to say, it isn't at all. Presumably, you would not like the Supreme Court striking down the minimum wage. But, presumably, once they did, people eventually come to see the wisdom of the court's decision.

What you must realize is that once you start getting into the business of the Court saying which unenumerated rights are in the Constitution, you necessarily say to Judges, "govern us. Tell us what rights we have." Once you go there, the only difference between two wrong decisions is whether you like the result or not, and thus, thereafter, there is no way, none at all, to avoid a politicized judiciary.


a vast majority of the legislature has been won over to supporting gay marriage,

I don't normally care one way or another what happens with gay marriage - I was told in no uncertain terms by members of the gay community that they didn't want my support, and I have thus completely washed my hands of the matter, I am disinterested an uninterested in which side wins - but I can't resist this one. Statistical evidence, please. which legislatures, which members. By name, or by distict will do.

JSU said...

The conference call tape is actually worse: he doesn't just say "betrayal" but "deep personal betrayal". And talk of an unspoken agreement...

The hole just gets deeper.

The Exalted said...

doesn't anyone care about the statement "If Harriet Miers didn't rule the way George W. Bush thought she would, he would see that as an act of betrayal and so would she"????

she would place pleasing the president over her own honest and logical analysis of the constitution?

anyone?

as for scalia the so-called originalist, he is the most result oriented judge on the bench. reading the contradictory twists and turns of his incoherent philosophy in his dissents and opinions was the most amusing aspect to con law, in my opinion.

anyhow, if roe v wade gets overtuned, the GOP is going back to the wilderness. i hope it was worth it . . .