Fare Thee Well, Sweet Fence
By Pejman Yousefzadeh Posted in The Courts — Comments (39) / Email this page » / Leave a comment »
Note that this post is not meant to speak for any of the other Editors at Red State. I state only my own personal position.
Ever since the nomination of Harriet Miers, I have promised myself that no matter how pessimistic and depressed I got over her selection--and that is quite pessimistic and depressed, in the event that you are wondering--I would reserve judgment and give her a fair chance to prove herself in the hearings before the Senate Judiciary Committee. This means that I refused to commit against Ms. Miers even after the "I like Earl Warren/No, I like Warren Burger" fiasco, after the "proportional representation is part and parcel of the Equal Protection Clause" debacle and . . . well . . . a whole host of other revelations that made me want to throw things at random around whatever room I found myself in. I figured that if Harriet Miers could impress in the Judiciary Committee hearings, I might have a reason to vote in her favor and since I like to think the best of people, I welcomed the possibility.
But the more I have thought about it, the more I have realized that this is, at best, a forlorn hope. Let us suppose that Harriet Miers does well at the hearings. It is not out of the question that she would--she is an intelligent lawyer who is a fanatical worker and likely will do whatever is necessary to give a passable performance in front of the members of the Senate Judiciary Committee. Moreover, expectations are quite low so she really shouldn't have any trouble clearing them.
Should this impress us? Should we be dazzled that Harriet Miers might do well in Senate Judiciary Committee hearings? Let us remember that the Senators who would question her are not exactly Olympian thinkers. Let us remember that the hearings will be less an academic or intellectual exercise and more a political one.
And let us remember that Harriet Miers was not nominated in order to pass muster at Senate Judiciary Committee hearings with flying colors. She was nominated to serve a life tenure at the United States Supreme Court. Hearings before the Senate Judiciary Committee are designed to inform us how good a Justice a nominee may be. They are but a prelude to the ultimate test that is being a Supreme Court Justice. They are not the test proper.
So even if Harriet Miers passes through the prelude, what do we have? We have a very smart litigator who would be--and was--a very good managing partner at a large law firm who has not thought seriously about Constitutional law, issues of statutory jurisprudence or an overarching theory of jurisprudence. She will cram for her immediate hurdle before the Senate Judiciary Committee. But that is not enough to prepare her for a lifetime on the Court. For John Roberts, the Senate hearings were an occasion to show clearly to the very few who remained foolish enough to doubt him his absolute and awe-inspiring mastery of Constitutional law. For Harriet Miers, they would be an occasion to merely attain some semblance of respectability after an underwhelming rollout--underwhelming in large part because of her failure to impress even those whose own legal training is shallow at best.
And this is where I get off the bus. I don't want a Justice who is merely better than the mediocre. I want excellence. I want someone who lives and breathes the issues the Court grapples with and while Harriet Miers is an excellent lawyer, she does not fit the bill on this score.
Guys, sign me up as a fellow traveler. Mighty Bear, take note. I oppose the nomination of Harriet Miers to the United States Supreme Court. Her nomination should be withdrawn by the President and an excellent nominee should be sent up in her stead. Failing that, Democrats and Republicans should stand together and vote Harriet Miers down.
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Fare Thee Well, Sweet Fence 39 Comments (0 topical, 39 editorial, 0 hidden) Post a comment »
At some point, you have to get off the fence: you have to reach a conclusion about a matter like this, think it through, and just stick with it. That's what it means to be a person capable of making choices. One of my best friends, an absolutely brilliant guy who was a graduate student in artificial intelligence at a very prestigious university, was a phenomenally intelligent person right up until the point that he had to make a choice. It became so much of an impediment to his life that he actually taped a sign to the ceiling over his bed that read: "MAKE A DECISION." It wasn't that he was a stupid person: he was brilliant, but he was constantly caught between his own conflicting and contradictory interpretations: he could almost always see the other side of any argument.
The result is stasis. You can't move. And in those cases, you really do have to force yourself to make a choice, come what may.
Contrary to popular opinion, "proportional representation" had a different, more innocent, meaning (i.e. the way US House districts are apportioned) before people like Lannie Guinier got hold of it, and ruined it.
From:
"Not As Dumb As It Sounded"
October 20, 2005, Powerlineblog, by John Hinderaker
http://powerlineblog.com/archives/012006.php
excerpt:
Miers had a lot of experience with the Voting Rights Act on the Dallas City Council; her at-large seat was eventually abolished by court order because the system then in use, with eight geographic districts and three at large members, didn't produce enough black and Hispanic city councilmen. I thought that her reference to the Equal Protection Clause was garbled--that constitutional provision was also involved in the litigation over the Dallas City Council--but that her blunt characterization of the Voting Rights Act might provoke some honest discussion of that little-understood statute.
But I now realize that I was reading too much into Miers's sentence. Left-wing law professor Cass Sunstein is, for once, right. All Miers meant was that the City Council, in trying to draw districts in compliance with the Voting Rights Act, had to take into account the one-man-one-vote rule that has been held to be mandated by the Equal Protection Clause. In other words, the districts had to be of roughly equal size so that each voter's ballot counted about the same.
Thus understood, the criticism of Miers is (not for the first time) far out of proportion to the offense. The meaning she gives to the phrase "proportional representation" isn't the usual one, but it is perfectly logical. Read in this way, there is nothing at all wrong with what Miers wrote. The Equal Protection Clause has indeed been held to require that voters be "proportionally represented," i.e., that some citizens' votes not be diluted by being part of a disproportionately large district.
There is a difference between the nomination and the confirmation. Miers clearly was not the best candidate, and Bush should withdraw her. However, if he does not, respect for the office of the president requires that she at least get a hearing.
They might have Miers give a public speech.
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/25/AR200510250
1783.html
The Senators don't seem pleased.
Asked if the debate had become "one-sided," with too few defending Ms. Miers, Senator Sessions, the Alabama Republican, struggled for words, then pushed a button for a nearby elevator in the Capitol building and told an aide, "Get me out of here."
And leaving the lunch meeting on Tuesday, Senator Lindsey Graham, Republican of South Carolina and a Judiciary Committee member, acknowledged that senators who had met with Ms. Miers were telling colleagues that they had been unimpressed. "She needs to step it up a notch," Mr. Graham said
Several Republican aides, speaking on condition of anonymity for fear of reprisals, said two other Republican committee members, Senator Tom Coburn of Oklahoma and Senator Jon Kyl of Arizona, had privately raised questions about her judicial philosophy. Both declined to comment on their views of her
"I certainly go into this with concerns," Mr. Coleman said.
No matter what, you've gotta love this statement by Trent Lott:
Lott cautioned that outside groups have a limited ability to influence senators of either party. "I'll call them when I need to hear from them," he said. "As far as I'm concerned, they can all shove off, left and right."
Now that's the kind of Senator I'm talking about! We have way too much of this Internet netroots BS -- who do us people think we are? I'm serious. It's true. I'm actually glad to hear someone one Capitol Hill say it. This is a Republic, not a free-for-all. We've all got our opinions, and Lott is correct.
I jumped off the "support Miers" bandwagon a long time ago, but I'm still willing to hear what Trent Lott thinks.
We could get Lott to run for President? I'd personally vote for the guy.
I am increasingly convinced that the only hope is to put enough pressure on the White House and GOP Senate to get a withdrawal before the hearing. If this gets to a hearing I predict that it will set back the Conservative legal movement for years.
As it is shaping up, the hearing is likely to result in a substantive battle over judicial philosophy. While I welcome that battle in general, I am absolutely terrified of fighting it with Miers as the point person. From the moment this nomination was first declared, I have read, watched and listened to every bit of background information and argumentation given by the White House and her supporters, and nothing I have heard, seen or read gives me any indication whatsoever that Miers will have any ability to articulate (much less defend) a conservative judicial philosophy. What a wasted opportunity!! Sigh.
From the anti-Miers NRO, this is what K Lo reported she was told had actually happened:
"Miers was asked about Justices she admired. She responded that she admired different Justices for different reasons, including Warren -- interrupted by Senator Leahy -- Burger for his administrative skills.
Reasonable people could ask whether Burger was a great administrator, but the comment is taken out of context by the Washington Post. Miers didn't express admiration for his jurisprudence."
I'd put this in the same trashbin as the "Laura Bush called Miers critics 'sexist'" meme, TNR's misrepresentation of Miers' work in the ABA, and the "freedom of liberties" meme that all have already been debunked.
even a wrong decision.
You can cut your loses with a wrong one, make it a learning experience, or even go down in glorious defeat to encourage folks in another time.
But making no decision just wastes time and opportunity.
In addition to getting things wrong or out of context (see Thorley & RBMN), I remind you that the SC deals a lot with Non-ConLaw stuff, and it would be nice to have someone with a skill set that involves Business Law and has an appreciation for the role of the court regarding the GWOT. ConLaw expertise is not the be-all end-all of a nominee. Her excellence in other areas would be a welcome addition to the court.
If the White House were really serious about belief in her judicial capabilities, they would set up a test.
Pick two cases from recent 5-4 or 6-3 decisions and have her write an opinion. Assign her a pair of interns who are responsible for also attending her 24-7 until it is completed to make sure that the writing is hers and provide the legal legwork that she is probably out of practice with.
Review that opinion.
What makes you think "W" isn't trying to gut the conservative movement?
He isn't, hasn't ever been, and hasn't ever presented himself as a conservative of any stripe. In fact, the only ones claiming that he is a conservative are activists on both sides. (Libs trying to demonize him and Cons trying to drum up support)
There is one acceptable definition.
proportional representation a system of voting that gives minority parties representation in a legislature in proportion to their popular vote
The fact that the shameless Bush acolytes want to retroactively change the plain meaning of a universally recognized term does not speak well to their side of the debate.
"Proportional representation" means proportional representation, just as "marriage" means marriage, despite the best efforts of homosexual activist organizations to alter its definition.
Words mean things.
"sexists."
She has underwelmed me from the beginning. I don't think she has the constitutional law experience that is needed for the job.
Somebody appointed to the court shouldn't have to bone up on constitutional law, sure they need to prepare, but they should have a good handle on the subject itself.
I still can't figure out what Bush was thinking.
...but there's no way in hell that I'd ever vote for Trent Lott.
The only other incumbent senators that I could imagine myself voting for:
-Ben Nelson
-Tom Coburn
-James Inhofe
-Wayne Allard
-Jon Kyl
-Jim Talent
-Kit Bond
-Norm Coleman (maybe, if only for his anti-UN stance, and the fact that he's originally from Bklyn.)
-Jon Cornyn
-George Allen
That's about it.
But they handle an even larger volume of things that don't deal with the GWOT or business law. She has no experience with that, either.
Keep in mind, I'm on record as saying I'm sure she can meet the technical requirements of the job, I'm just not sure why everyone's so sure she's going to come to the right decisions the right way, what with no evidence and all.
It is too bad you will probably prevail.
I hope we recover from what the so-called conservatives who are destroying the conservative movement and Republican party before too many election cycles.
The personal insults the ant-mob have delivered to this President, who has been fithful effective and good, I leave to your consciences, or lack thereof.
The destruction and the real damage of this freebie to the left, however, is something the knee-jerks will impose on all of us Americans.
How is she supposed to rule on GWOT stuff - if she's been advising Bush about it?
And - on top of that - she won't even talk about what sort of stuff she would recuse herself from. She won't talk about what sort of stuff she's done for Bush.
So, basically, we're counting on Bush's "trust me" as to her abilities, and Miers "trust me" on whether or not she needs to recuse herself.
Without us the Republican Party is nothing more than a country club, masquerading as a political entity.
I'm not sure if I can say one way or another whether I support the nomination of a nonjudge here or not...
But the question that comes up in my mind is simple: What does it take to be a supreme court judge? Can you or I do that job? I bet we can. And I'd be willing to bet that we would do just as good a job as any of the "legal minds" that are sitting on the bench now. Before you flame me for that comment, remember that those 9 people have a host of "assistants" and paralegals that do a lot of the leg work. I've read that in some cases the paralegal is writing the "opinion".
And it is that word that drives me crazy: OPINION.
Since when did 9 lawyers have the power to express their opinion on a matter and have their opinion carry the same force and weight as a law that we the people voted to create?
Will Ms. Miers be a good judge? I don't know. And I personally don't care! We the people of this country have given over way too much power to this group of 9 people. Until this group decided in Mayberry v. Madison that THEY could rule on the constutionality of issues, the supreme court had little power. The same is true of this courts deciding back in the 30's that the commerce clause of the constitution gave congress the power to create all kinds of laws. But we the people sit back and do nothing as our authority is slowly taken away.
Before we look at whether Ms. Miers will be a good judge or not, we need to decide whether the constitution of this country means anything anymore. If this body of 9 people can remove our right to private property, if this body can over rule a state law passed by the people, then the constitution itself and the 20 some amendments mean nothing.
How many times have we the people looked at the drivvle that comes from the court and scratched our heads in wonder? I know I do a lot.
I personally think this nomination is a political stroke of genius by Bush. Why? Look at the country... We as a nation are talking about not only the nomination, but the court, it's role, the role(s) if the lower courts AND at the role of our representatives. Were we talking about a lot of these tough issues prior to the Miers nomination? I'm sure some people were, but it wasn't at the top of our conversational agenda - not like it is right now.
Prior to the infusion of a conservative backbone into the GOP, the Republican Party consisted of just that -- blue-blood country clubbers. And look what that got them: minority status for nearly 40 years.
For those who believe conservatives are destroying the Party, think again. They gave the Party the prominence it now enjoys. The lesson of the Miers nomination is quite simple: always dance with the one that brought you to the dance. That's politics 101.
As a Values Voter, I would have rejected anyone not in the mold of Scalia or Thomas, as we were promised by the President. As long as they were in the mold of Scalia or Thomas, it mattered not to me their ethnicity, gender, educational pedigree, or economic status. Can I get a witness?
We could do so much better. I listened to Hewitt yesterday and he was not quite so belittling of conservatives who jumped off the train, especially now that's becoming more and more in the minority.
From:
United States House of Representatives, 109th Congress, 1st Session: Foreward of the Constitution
http://www.house.gov/house/Foreword.shtml
excerpt:
The document printed here was the product of nearly 4 months of deliberations in the Federal Convention at Philadelphia. The challenging task before the delegates was to create a republican form of government that could encompass the 13 States and accommodate the anticipated expansion to the West. The distribution of authority between legislative, executive, and judicial branches was a boldly original attempt to create an energetic central government at the same time that the sovereignty of the people was preserved. The longest debate of the Convention centered on the proper form of representation and election for the Congress. The division between small States that wished to perpetuate the equal representation of States in the Continental Congress and the large States that proposed representation proportional to population threatened to bring the Convention proceedings to a halt. Over several weeks the delegates developed a complicated compromise that provided for equal representation of the States in a Senate elected by State legislature and proportional representation in a popularly-elected House of Representatives.
Sen. Graham telling conservatives to shut up? Conservatives being called sexist and elitists? Knee jerks? It takes two hunter.
Knee jerk is, btw more appropriate to those who blindly follow the president. It takes a lot more thought to part company with the president I voted for (donated time, money, travel) because my natural (knee jerk) inclination is to support a republican president.
I haven't heard any anti nomination folks argue that she isn't qualified because she is a non-judge. But the white house has been arguing it.
Frankly the argument is that she has no conlaw experience.
Other straw men arguments the white house goes after is that conservatives oppose HM because we are sexist (but we wouldn't oppose Edith Jones or Janice Rogers Brown) or elitist (Most of the conservative favorites did NOT attend ivy league schools), etc.
choose to follow the president? How elitist of you.
has been far more symbiotic than you understand it to be.
She used the phrase "proportional representation" directly in reference to the 14th Amendment. This is a concept embraced by Lani Guinier, a woman so radical that she could not pass muster in a Democrat-majority Congress. When Burt Neoborne and Cass Sunstein are criticizing the presumptive associate justice nominated by a Republican president for having an overly broad interpretation of the 14th Amendment you know that you have a crappy nominee. There's no amount of rationalizing that will justify this abominable choice, just own up to it.
It's my constitutional right to spin. Harriet Miers would know that. :-)
