October 04, 2005

Miers: My Theory

Everyone who knows anything has already sounded off about Harriett Miers.

Now it's the turn of all of us who don't really know jack.

The WaPo says:

IN REPLACING Justice Sandra Day O'Connor on the Supreme Court, President Bush could have opted for ideological confrontation and an automatic confirmation battle. His nomination of Harriet Miers, his White House counsel, may save the country from that ugly outcome.
I think the only ugliness that the WaPo cared about was a repeat of the humiliation of the Democrats on the Senate Judiciary Committe; a Janice Rogers Brown would have finished the job Roberts started.

But seriously - here's what I think. Bush has driven the court a bit right in replacing Rehnquist with Roberts. Not much, but enough.

My hunch - and it's just a hunch, although it seems good enough for Hugh Hewitt - is that the President knows Miers well enought to know that, despite dalliances with the Democrats, she's reliably conservative enough in her legal views to be an improvement over O'Connor. He's learned a lesson from the failures of his father, who nominated a dark horse more or less unknown to him in David Souter.

With this, Bush:

  • Conserves political capital for the battles he's fighting right now - over the war and hurricane recovery
  • Moves the court incrementally to the right. Think about it; is a court with Roberts and Miers more conservative than one with Rehnquist and O'Connor?
  • Saves political capital for the battle over the Stevens seat, which may well open up later in his term, and will constitute a battle royale. Stevens, a paleoliberal nominated by Woodrow Wilson Jimmy Carter, is a seat the Dems know they have to keep rigidly left of center.
That's what I'm thinking at the moment, anyway.

Posted by Mitch at October 4, 2005 06:43 AM | TrackBack

Every time I have predicted that *this* time, with *this* issue, Bush will *finally* hand the Dems enough rope to hang themselves (and it won't take much at all), I'm disappointed. Betting on a Stevens replacement fight is just an elaborate and safe way to continue singing along with Annie: "It's always a day away."

I'm not going to be a TomorrowPublican much longer.

Posted by: Brian Jones at October 4, 2005 07:50 AM

Well, all this just proves is that Bush is a Republican. He's not much of a Reagan-style conservative, but he is president and gets to nominate whom he wishes, although frankly I'm underwhelmed with this nominee as compared to Roberts.

Posted by: nerdbert at October 4, 2005 08:07 AM

John Paul Stevens was appointed by Gerald Ford, in 1975. Jimmy Carter did not appoint any Supreme Court justices.

Posted by: CK at October 4, 2005 08:12 AM

Yep, I caught that as I was driving to work.

Posted by: mitch at October 4, 2005 09:04 AM

I have a theory/hope that makes some conservative sense from this appointment. (I put it on my blog and will not bore the world by restating it here.)

To answer your question "is a court with Roberts and Miers more conservative than one with Rehnquist and O'Connor?" I will have to say, undoubtedly...I don't have enough information to say.

Posted by: Tony at October 4, 2005 11:11 AM

I would guess that with Stevens seeing Roberts and Miers coming up and the court drifting slightly rightwards, he will not retire from his post unless his health forces him to...or unless Hillary manages to win in '08, whichever comes first.

Posted by: FJBill at October 4, 2005 12:05 PM

About all I've been able to cull from what has appeared so far is that there is little track record concerning her philosophy on some hot-button issues. I'd like to know more, but waddahay, while that does not make me want to take to the streets in her support neither does it make me all hot to go out and oppose her.

I do not unreservedly trust Bush, but he does know her well and has seen her in action in the courtroom. Just have to hope she is not a drag version of Earl Warren.

Oh yeah, and she is "unqualified" because she is not already a judge: piffle. Neither was John Marshall when Adams2 put him (Over his own demurral) on SCOTUS.

Posted by: John Anderson at October 4, 2005 01:44 PM


Believe it or not, I think you are spot on, here!


Posted by: Flash at October 4, 2005 04:22 PM

I have a different theory...

Bush nominated both Roberts and Miers, both of whom can be relied upon to be very friendly with corporate wishes, especially corporate leadership, but neither of whom should be in any way, expected to address Social Conservatism in the manner of Thomas, because Bush and Rove distinctly understand that actually addressing Social Conservatism in the court will rob the right of vast amounts of political participation. In short, it is simply not in their interest to do so. If Bush had truly intended to, he had the perfect opportunity here.

1. He has conservative control of the Senate - sure there could have been a "nuclear" fight, but following the Roberts' approach, such a fight could have been avoided.

2. He has adequate jurists (and others) who are well researched in the law and process of the courts, some of whom certainly would have garnered the votes of Southern Senators like Landrieux.

3. The public generally supports a view that the President should get an up or down vote and is mostly unaware of the danger presented to the idea of "right of privacy." Even though such a polarized court would endager those rights.

No, I think this was potentially purposeful. I don't agree the court will be incrementally further right. Roberts is more likely similar to O'Conner than is Mier, but Mier is undoubtedly FAR less like Rehnquist than she is like O'Conner. Mier is bright, even if not a judge. Rehnquist was a doctrinaire who was not considered overly erudite in Constitutional law by judicial scholars.

One final point, this comedy of "activism" that Bush spoke about and you all complain about. What is your definition of "activism?" Bush defined it as "overriding the legislative process" today. If this is the measure, then without question the most "activist" judges are those on the right.

Clarence Thomas by a count something like 600 to 180 was vastly more active in overturning the decisions of state (and federal) legislatures. Further, he doesn't even support Stare Decisis, which Scalia refers to him as "goofy" for not supporting. Thomas was followed by Scalia and then Rehnquist as the most likely to overrule the will of the people represented by their legislators. Conversely, the least likely were Breyer, Ginsburg, and Stephens, in order.

Your complaints sound like you have no issue with "activism" so long as it is "activism" you like. This is not a concept of restraint, but rather a desire for restraint of government you don't like, but advance of that which you do. You have no issue with profanity, censorship, or intrusions into privacy by law enforcement. You support changing the 6th ammendment, perhaps even changing the federalist position on the 2nd ammendment. In short, the right extreme has no concerns with actually supporting the constitution unless the constitution is convenient.

Make no mistake, the left has the same problems, but the LIKELIHOOD of activism by the left jurists is FAR lower, based on fact, rather than opinion.

I heard a good one on the way into work... Now that Judith Miller has been released, the left can go back to defending the freedom of the press. I laughed, it's pretty accurate. Sure I want Miller to point out Rove - or Libby - and thereby see pressure placed on the house of cards (lies) this President lives in, but I did not support jailing her. I also supported the ACLU's defense of Limbaugh's right to privacy. The irony of seeing the left abandon those principles offended me, but no less or more than the right talking about needing to do away with "activism" it so actively supports.


Posted by: pb at October 4, 2005 04:27 PM

"Clarence Thomas by a count something like 600 to 180 was vastly more active in overturning the decisions of state (and federal) legislatures."

It's the Supremes' job to overturn legislation that it unconstitutional. That's not activism.

Posted by: Sav at October 4, 2005 05:25 PM

Well, the definition was Bush's not mine, but then what is the objection? You don't want them to overturn legislatures....that's activism, except... it's their job when you like it.

OH, but that's different.. no, it's hypocrisy.


Posted by: PB at October 4, 2005 05:51 PM

"You don't want them to overturn legislatures....that's activism, except... it's their job when you like it."

Er, no. It's their job when legislatures exceed their Constitutional authority. That's a big reason we have a Supreme Court.

Posted by: Sav at October 5, 2005 05:01 AM


That's the point, YOU determine, apparently based on your judgement, what is activism and what isn't. Conservatives decry members of the court who are "activist," using a definition that says "interfering in the legislative process." Yet the most likely to interfere are conservatives. You set a moving target of your chosing because it has NOTHING WHATSOEVER to do with "activism" it's simply that conservatives want a court to do what they want, not according to some standard, but according to what they want. Their own standard, such as it is, is most often violated by THEM. The point is that "activism" is Spin, pure and simple, it's only activism when you don't like it, because most of the time, you do.

The point is hypocrisy, not what the job is or is not. I have a fair idea of the purpose of the court.

The real question is whether the position of conservatives, that the constitution should be interpreted literally, which you all have come up with more spin and called it "constructionist", which gives at least the appearance of being about building something, but in fact is meant to mean "the views of those at the time of construction." This absurdity would have us try to think ONLY as those who framed the constitution would have thought, i.e. they had no concept of RU-486, of stem-cells, of pennicilin, even really of women's suffrage, by that ridiculous litmus, all of the above are apparently beyond their ken to comprehend of an avenue under which the law could be interpreted or applied, and therefore strictly the province of the state. But wait, we don't restrict the fed to that in other areas, well.. because it's not convenient to do so. Go read the Federalist Papers sometime, it's very, VERY clear the 2nd ammendment was about arming state militias, not guaranteeing citizens the rights to own any firearm they ever desired. In fact, at one point the NY state assembly passed a law requiring every able bodied man to own a rifle, not because they loved rifles, but because of the fear of invasion by the Brits. The need was for arming citizens against invasion (and oppression), not so folks could own 47 differnt kinds of AR-15's. There certainly is an implied right to own SOME form of firearm, but not an implied right to own ANY kind in ANY amount, yet you "constructionists" would say that's what they "meant," however your own constructionist stance says don't try to discern what they "meant" just do what they said (not withstanding the fact that the principle author defined precisely they did NOT mean that). The point is, constructionism is only constructionism when you want it, when you like it. States pass laws which do not affect interstate commerce, yet a friendly court overturns them in favor of business, the list is frankly legion.

The bottom line is you have no standard. You just don't like what you don't like. Now the left has hypocrisy issues as well, but if you really believed what you say about activism, you all should love the liberal members (all 3 of them) of the court.


Posted by: PB at October 5, 2005 07:03 AM

“Clarence Thomas by a count something like 600 to 180 was vastly more active in overturning the decisions of state (and federal) legislatures. Further, he doesn't even support Stare Decisis, which Scalia refers to him as "goofy" for not supporting.”

Actually it’s more accurate to say that Thomas follows the stare decisis of the commerce clause before the SCOTUS reversed itself under FDR threatened to pack the Court and invented the “substantive effects” test where instead of regulating commerce (as the Commerce Clause allows), the federal government suddenly invented the power to regulating anything that might affect commerce thereby creating a de facto police power – something the Founders specifically did NOT grant to the federal government.

Posted by: Thorley Winston at October 5, 2005 09:53 AM

Funny how when you folks complain about FDR's attempts to pack the court, which is indisputable (also funny that I'm the only one who admits faults on both sides), you don't mention the fact that the reason FDR did this is because THAT court was HIGHLY activist, overturning many laws passed by various legislatures, and in fact was pretty obstructive to progress on worker's rights, etc...

Sure, Thomas is in alignment with that, some surprise (or not), but further, and this according to Scalia, he is pretty much totally opposed to any Stare Decisis axiom. He has stated himself he sees no reason to use previous prescedent, and that each case should be decided on the merits against the constitution itself rather than previous decision.

What's the point? The point is your comments are really not relevant nor accurate. Saying he supports Stare, except this version, well there really is no version, it's the concept that stare is broader than commerce alone. Thomas choses to limit himself to strictly commerce??.. well then, apparently the Constitution only applies to commerce. Unfortunately it's more than just commerce, and Thomas would ignore Stare on things like privacy, abortion, 1st, 6th, 2nd, and 5th ammendments, meaning prescendents 100 years old or more, could be overturned overnight, and then overturned again, creating chaos. This is why Scalia called him "goofy" because limiting it to commerce is both myopic and inadequate. Blaming FDR for the fact that Thomas is myopic is laughable.

Let's go a step further though, there is a case before the court today where the conservatives are trying to overturn an Oregon law passed twice now to allow for assisted suicide. The specific point of the conservatives is that through the FDA, the federal government can control more than just commerce. Hardly "non-activist" and hardly restrictive to the standards of the FDR opposition court (then or now). It will be funny/instructive/ironic to see how Thomas votes here. Who wants to take my $1 that he votes with the President, further, which of you will decry the administration for doing that which you precisely decry, the extension of law by fiat of court edict, the expansion of federal power over the state through the court and with a beauocracy (the FDA) you primarily don't find a need for, in a way it was never ever intended to do.

My bet, none of you will. Prove me wrong by explaining why you oppose this position of the administration and why it is not conservative.


Posted by: PB at October 5, 2005 11:47 AM

I'm interested in the twin prongs of this argument against Thomas, that by undoing the works of elected legislators he's failing to do the people's will (along with the implication that doing the people's will is in his job description somewhere), and that overturning lower court rulings represents a disdain for stare decisis.

Oh, I'm not.

Posted by: Brian Jones at October 5, 2005 09:40 PM


First, clearly you don't understand Stare Decisis.

Second, clearly you haven't read Thomas.

Third, overturning legislatures is the neo-con(job) complaint about activism.

Let's deal with each.. but first, it never amazes me that conservatives don't care about facts they don't like, it only amazes me that they so wilfully ignore true interaction or discourse.

On point one then; Thomas' disdain for Stare Decisis applies to PRIOR US Supreme Court rulings, not those of lower courts. That you would assert this indicates you don't understand the issue at all. Beyond that, Stare is what keeps laws and lawmaking reasonable, because to not have it is chaos. A position not supporting it is the most "activist" possible position you could take. Further of course, every conservative judge outside of Thomas supported/supports the concept, but you, and others here, ignore all that and leap to his defense. Thus you get the label EXTREMIST. You defend the ridiculous, can't admit flaws in your own ranks, etc..

Second, Thomas denounces Stare, not lower court rulings, and that's what makes him against it. Not because I say so, but because HE says so.

Third and finally, you all bemoan "activism", but you don't appear to mean it. Activism when it overturns laws you don't like is fine, but when it overturns silly things like the Pledge of Loyalty (err Allegience), you have an issue. I am much more worried about Kelo than "under God", and the liberals were WRONG to vote for Kelo, but then again, most liberals I know find that decision revolting. But you defend Thomas, probably the worst Jurist of the past 100 years, so bad his own ideologues find him useless, simply because he votes the way you want sometimes, namely with the President, not because he supports conservatism, or restrained government, or states' rights. In short, you don't support conservatism, or an ideology, you just support winning, at any, and all costs.

Nice principles you have there, oh wait, they're not.


Posted by: pb at October 5, 2005 11:27 PM

In ragards to:

"Stevens, a paleoliberal nominated by Woodrow Wilson Jimmy Carter, is a seat the Dems know they have to keep rigidly left of center."

Guess what? Stevens was nominated by Ford, a Republican. Get your facts straight. It's kool-aid drinkers believing anything to feel safe and see the world in black and white is whats killed Minnesota as we know it.

Posted by: J. at October 10, 2005 04:43 PM
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