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Ozzie Goes Through Withdrawal with Harriet

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Harriet Miers withdrew her nomination for the Supreme Court today. Her letter to the President cites her concerns that the demand for documents relating to her duties as White House threatened the independence of the executive branch and the separation of powers.

This letter remains one of the few public documents where Ms. Miers expounds on any constitutional issue. I do understand her separation of powers concerns, but she also somehow failed to mention that she was the head of the president’s search committee.  In essence, this top 50 attorney in the country makes a strange tacit admission here. As the person doing the choosing, she failed to anticipate that her chosen candidate might be pressured to expose her work as White House counsel to senate scrutiny. Well, you know what they say about the attorney who represents himself or herself.

It’s probably also true for the one who chooses herself, that is unless you’re looking for a vice-president. This isn’t the time to pile on and I am guilty of that here, but it continues a pattern of marginal competence from White House staff and the administration.

I suspect the big reason that Ms. Miers withdrew was that someone found that old speech she had made to a Dallas women’s group about the importance of “choice” in reproductive matters. As far as the right was concerned, they might as well have turned up pictures of Harriet Miers holding hands with Hillary Clinton and Cindy Sheehan.

Over the last ten days, the President had worked hard to sell Miers as both a good evangelical who would follow conservative principles of legal construction by voting to overrule Roe v.Wade at her first opportunity. I never was sure what that had to do exactly with being qualified to sit on the Supreme Court.

Since 2000, respect for the court as an institution has suffered. One sad result is that the debate on both sides over prospective justices has degenerated into bald political jockeying about reproductive rights. It’s as if the Supreme Court were just a rarified legislature that votes only on abortion.

I don’t know what it means to be qualified to be a Supreme Court Justice. The demonstrated ability to sustain clear, complex, analysis does seem to be one of the markers everyone can agree on in principle. The second quality is harder to talk about and that’s judicial temperament. John Roberts came across as having it during his confirmation. I’d argue that Robert Bork, who was clearly qualified intellectually, didn’t show it.

There is a third quality, particularly while the court remains 5-4 on so many issues, that has not been mentioned at all and that’s a sense of the institution itself.  Whatever one thinks of Earl Warren, who happens to be one of my heroes, his signature achievement on the court was Brown v. Board, the school desegregation case that changed America. Warren, who, for what it is worth, had never been a judge before Eisenhower kicked his political rival to the Supreme Court, understood that the Court could not enforce its own very controversial decision.

He, therefore, insisted that the decision be unanimous. Compare that to the signature decision of the Rehnquist court that decided the 2000 election and the impact it had on fracturing both America and respect for the court. Whatever one thinks of Warren, that was an instance that demonstrated that the former governor of California brought political wisdom to the court. It’s a quality that’s not just missing from the current court as a whole, but also from the leadership of both political parties. For what it is worth, had Warren been nominated today, civil libertarians would have strongly opposed him because of his role in the Japanese internment in California. We never know what happens on a single issue when someone gets that life appointment.

Most scholars agree that John Marshall was the greatest Supreme Court Justice and that he was extremely conservative. It was Marshall who took a case about political cronyism, lame duck appointments, in Marbury v Madison, and more or less unquestionably made law by asserting the concept of “judicial review,” which became the basis of the Supreme Court’s power as the third branch of government.

Even there, he split the difference. Marshall let the other party win the case, but in doing so he established a very conservative check on the actions of elected officials. I’d personally like to see Roe v. Wade upheld, but it’s far more important to me that whoever serves on the court have both wisdom and vision.

I wish Ms. Miers well. I know it’s hard to identify qualities like “wisdom” and “vision”, unless you happen to be named “John Minor Wisdom”or “Learned Hand”, but our nation is headed into what will be very critical times and the court needs both more than it needs a specific ideology either left or right. My fear is that the current administration cares little about either and lacks the capacity to recognize it even if it did care.


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About Chancelucky

  • When you see yourself sliding back down into the sulphurous pits of the Middle Ages with “Ask Your Husband Before You get An Abortion” Alioto, it’s about not just reproductive rights but the right not to be a slave to any other human being.

    A return to the chattel mentality is a storm the battlements fight. I’m not sure even wise and sensitive men can imagine what it feels like to face a return to this repugnant world and cocoon some of us spent a lifetime battling out of.

  • I am perfectly happy to oppose Alito as I was to oppose Miers. I’m just uncomfortable with “single-issue” voting for candidates or judges, because the jobs we are voting them into are so much more complex than a stance on a single issue.
    Fwiw, I see some level of competence and experience with Alito, but not necessarily wisdom or vision with respect to his decisions.