Professor Hewitt writes:
The responses to arguments from the anti-anti-Miers crowd is to dodge the hard questions, which for the sake of brevity, I will list here:
Does George W. Bush deserve any loyalty from his party? From pundits identified with his party? If so, how much and why not more?
Do Harriett Miers’ many accomplishments count for nothing?
Does Harriett Miers strike the commentator as a dedicated public servant?
Why not wait for the hearings to at least begin?
How important is it that Roe v. Wade/Casey be reversed?
Which five precedents does the commentator think are in most pressing need of reversal?
Does the commentator agree with George Will’s assertion of Justice Lewis Powell as the “embodiment of mainstream conservative jurisprudence?”
Is a neo-Borking underway which will discredit the conservative cause’s defense of its future nominees against similar, future attacks from the left?
What are the political consequences of a defeat of Miers at the hands of a GOP controlled Senate?
Back to you Jim and Teflon. I’ll gladly link posts that respond to these questions in the order they are posed. (Link)
My answers are below.
Does George W. Bush deserve any loyalty from his party? From pundits identified with his party? If so, how much and why not more?
Mr. Bush is entitled to loyalty from the party faithful when, and to the degree, he advances the party’s vision of Government. From the perspective of a Republican partisan, Mr. Bush is an instrument, the vehicle of a message; he is not the message. And this debate isn’t about the president personally; it’s about ideas.
Do Harriett Miers’ many accomplishments count for nothing?
Of course they count for something. They count for something to her, to anyone who has benefited from her work and to all who believe that industry and service are laudable personal attributes. But accomplishment is not a synonym for qualification. Anthony Hopkins is an accomplished actor. But no one would think him qualified to perform heart surgery.
Ms. Miers’ conservative critics do not doubt the existence or value of her professional accomplishments. We doubt their relevance as qualification for the Court when measured against this standard: has the nominee demonstrated a commitment, either through scholarship or judicial service, to law-bounding judging?
Does Harriett Miers strike the commentator as a dedicated public servant?
Yes, she does.
Sen. Chuck Schumer, D-NY, also strikes me as a dedicated public servant. But that would not justify his appointment to the Court by a Republican president professing a commitment to originalism.
Why not wait for the hearings to at least begin?
Why not wait for what until the hearings begin? Between now and then, will Ms. Miers publish the scholarship or acquire the judicial experience that would allow us to know whether she has demonstrated a commitment to law-bound judging?
How important is it that Roe v. Wade/Casey be reversed?
It depends on the context in which the question is asked. Do you mean politically? If so, count me among the cynics who think it important that Roe and its progeny not be reversed. (Reversing Roe would deprive the GOP of an issue it has used to good political effect.) If you mean constitutionally, the answer is: very important. But the reversal of Roe alone cannot justify a nominee’s appointment to the Court, at least not when measured against the standard identified above.
By the way, I do think Ms. Miers would get Roe right. But this isn’t about the outcome of a particular case. It’s about the role of the courts in a democratic society.
Which five precedents does the commentator think are in most pressing need of reversal?
Oh, let’s have the Roberts Court start modestly, by reversing these (in no particular order):
McConnell v. Federal Election Commission, upholding congressionally-imposed restrictions on political speech in violation of the First Amendment (requires also revisiting Buckley v. Valeo; so this one is a two-fer);
Roper v. Simmons, invalidating application of the death penalty to offenders under 18 on expansive reading of the Eighth Amendment;
Kelo v. City of New London, upholding forcible transfer of private property from one owner to another on grounds of “economic development” in violation of the Fifth Amendment’s public use requirement;
Grutter v. Bollinger, upholding state-sponsored racial discrimination in law school admissions in violation of the Fourteenth Amendment;
Maryland v. Craig, upholding the deprivation of a criminal defendant’s right to confront the witnesses against him in violation of the Sixth Amendment.
These are among the Court’s newest sins; no case here is older than 1990. And they demonstrate that non-originalist approaches to the Constitution are as likely to take rights as to grant them.
Does the commentator agree with George Will’s assertion of Justice Lewis Powell as the “embodiment of mainstream conservative jurisprudence?”
I confess to not being acquainted with enough of Justice Powell’s jurisprudence to answer. I know he joined this abomination, but was that representative of his constitutional approach? If so, the answer to your question is no.
Is a neo-Borking underway which will discredit the conservative cause’s defense of its future nominees against similar, future attacks from the left?
This question assumes that Ms. Miers is a judicial conservative. That assumption is, of course, at the heart of the in-house quarrel over her nomination.
As I recall, Robert Bork was savaged for having a demonstrable commitment to an identifiable judicial philosophy, one his critics willfully and grossly misrepresented. Their misrepresentations were not answered — not by the nominee, not by the Reagan White House. And there was no conservative blogosophere to take up the slack. The nomination to the Court of stealth candidates — including Ms. Miers — is the legacy of that debacle.
I think it fair to say that many conservatives are dismayed by this nomination because they see it as a lost opportunity to redeem the failure of Robert Bork’s confirmation. In the wake of that failure, we worked for years to make the political branches of Government amendable to conservative nominees to the Court. And now we want to engage the Nation in an honest discussion — one for which we, the White House and the nominee are prepared — about the role of the courts in a constitutional democracy.
Some say we’re just spoiling for a fight with the liberals. But the correct assessment is this: we have a vision of how constitutional self-government should work and we’d like to go about implementing it honestly, and with the consent of the governed. And so we want a nominee who comes to the confirmation hearings with her cards already on the table, fully versed in what it is she’s about to explain. That rules out the cloak-and-dagger strategy.
Are Ms. Miers’ critics doing something damaging to future conservative nominees? Only if you consider a quest for transparency damaging.
What are the political consequences of a defeat of Miers at the hands of a GOP controlled Senate?
Consequences to whom? To Mr. Bush or to the party?
The better question is: what will be the consequences to the GOP if Ms. Miers is confirmed and turns out to be David Souter in a skirt?