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Harriet Miers: Policy or Principle?

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The word in all the media is that the conservatives are upset, and the Democrats are pleased, but it seems to me that there are varied motivations for both the pleasure and displeasure.

David Frum quotes a man who has this to say:

I would vote NO on Miers – and it would hurt my left-leaning heart.

I am a left-leaning independent and I do not like Justices in the mold of Scalia and Thomas. However, I would prefer either of those two to Miers. Miers does not have a proven record of intellectual rigor and strong constitutional principles.

I would prefer a strong, clear, consistent thinker that I disagree with than a chance at a wandering mind with good policy instincts. That’s why I liked Roberts. I trust that he will consider the facts and write strong opinions even if I disagree with the policy outcomes. Plus, although he wanted to look at original intent, he clearly stated that the framers intent is often murky and that modern day words have different meanings.

Other liberals seem positively gleeful, not least among them Harry Reid (from MSNBC:

Senate Democratic Leader Harry Reid was complimentary, issuing a statement that said he likes Miers and adding “the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer.”

At the same time, he said he looked forward to the “process which will help the American people learn more about Harriet Miers, and help the Senate determine whether she deserves a lifetime seat on the Supreme Court.”

Reid had personally recommended that Bush consider Miers for nomination, according to several sources familiar with the president’s consultations with individual senators.

In other words, he can’t wait for the ensuing Republican squabble, and he’s just overjoyed that the base is rebelling.

On the right, the reaction is pretty much all negative or stalling, but there is the same divergence in motivation: there are those that don’t care what her qualifications are as long as she votes Scalia’s way, and there are those that are genuinely apalled by her lack of qualifications.

Sam Brownback falls in with the former. He desperately wants a shoot-out at OK Corral. The moment that it became apparent that Bush wasn’t going to nominate someone like, ah, him, he started grousing.

“What I was hoping for was (Judge Michael) Luttig (of the U.S. Court of Appeals for the Fourth Circuit). (Fifth Circuit Judge) Priscilla Owen, you don’t have as much of a record, but you have some. (Fifth Circuit Judge) Edith Jones, you have a much clearer record,” he said.

“That’s what I was hoping, that we would get that sort of nominee, where there’s no guessing game about this, because you have that written record.”

“I’d love to have her say Roe v. Wade is unconstitutional; I am doubtful that that is going to happen.”

Those that on the right that do support Miers say that they trust the President. Pat Buchanan, on Meet the Press, had this to say to those people:

Listen, there’s a possibility she would vote to overturn Roe v. Wade. But what we’ve heard here, Tim, is “trust, believe.” Why should we take this risk? Anti-communism and the Supreme Court are the great causes of conservatism in my lifetime. Ronald Reagan led us to victory in the Cold War. We were on the precipice of victory in the battle to return the Supreme Court to constitutionalism. And the president of the United States picks a woman with no known judicial philosophy who has never taken a stand on any of these great questions, who has never written or said anything about Supreme Court rulings, and we have been told to take it on faith.

On the precipice of victory! And then Mr. Stay-the-Course himself wimps out. Who wouldn’t be upset?

The right seemed sure that this was going to be it. The big showdown where the Republicans get to show everyone who’s the boss. And then Miers is nominated, and the whole teeth-gnashing conservative machine is forced to grind to an abrupt halt and start equivocating and saying that they don’t really like Ms. Miers, but she’s still a nice person and all, and Bush is really okay, too, but not sure on this one, just not quite decided yet, you know.

I, for one, am glad that the Republicans were denied their fist-fight. I think there need to be other criteria for a nominee apart from Roe vs. Wade.

On the other hand, she’s not very qualified. She won’t be a Holmes, or even a Scalia. There were better qualified people that Bush could’ve nominated. Problem is that most of them have expressed an opinion, which makes them difficult for Bush to nominate in his weakened state.

Miers will not ‘move the court’ in the way that conservatives might wish, and she certainly won’t be a leader, but the Supreme Court has got leaders. How many grandiose theories of existence can it support at the same time? I’m perfectly happy to have her there, not making too much trouble. If anything Miers has shown herself to be cautious. Perhaps because of her lack of an over-arching philosophy on the Constitution, she will take some time to figure out what the Court’s rulings will do to people ‘on the ground.’ That’s good enough for me.

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  • Baronius

    I like the distinction you made between schools of Republican thought. I’ve been trying to make a similar point on the boards these past couple of weeks.

    I haven’t heard much from Brownback, but I think you’re right, that he wants an activist on the court. The Federalist Society crowd wants someone who reasons effectively.

    There used to be a legal principle of rules (or tests) which would aid lower courts in understanding the Supreme Court’s decisions. Some good examples are found in racial discrimination: Plessy’s “separate but equal”, and Brown’s overturning of same. Post-Bakke, there haven’t been clear-cut rules, making it impossible to guess whether a ruling will be upheld. In this environment, you might as well throw the long ball and take your case to appeals.

    For some conservatives (like me) a better O’Connor isn’t enough; we want someone who articulates law. For other conservatives (sometimes including me) a screaming partisan who five-fours the right way would be enough.

  • Mihos

    That’s a silly dual choice to choose from. Policy or Principle?
    How about Hamburglar?
    Was Hambuglar Policy or Principle?

  • Mihos

    …and would Hambuglar do everything heshe could to cover Ronald McDonald’s bush in the event that the public began to actually pay attention to the 911 commission’s guilt by omission?

    In my mind this nomination underscores the desperation of this administration to dodge accountability in the military industrialist piggy bank monopoly game. Someone better get into the supreme court to keep those records sealed pronto.

  • I’m afraid I don’t know what you mean, Mihos.