October 04, 2005
Harriet Miers: A Little Perspective
Since I've already been accused of cheerleading for Harriet Miers (a meritless accusation, by the way, since I've formed no opinion on her nomination and will form none until I know far more about her) I've decided to follow my natural contrarian impulses and attempt to provide some small counterweight to The Howling that greeted yesterday's announcement. Call me vox clamantis in deserto if you want. Just don't call me late for dinner.
Do try to take this as what it is: a deliberate attempt to provide perspective rather than an endorsement. For the record, I don't much care whether she is confirmed or not. No doubt the Republic will somehow bravely soldier on.
Several objections have been raised regarding Ms. Miers' nomination. The most-often voiced seems to be that she is unqualified. John Tabin at the American Spectator takes this one on:
Miers would never have been considered if she weren't close to President Bush, but some commentators have been a bit unfair in declaring her totally unqualified. Miers was president of the Dallas Bar Association and then the State Bar of Texas, an accomplished corporate lawyer, and Counsel to the President. Yes, there were a number of short-listed candidates with records much more impressive than that, but her stats are comparable to several lawyers whose first judicial job was on the Supreme Court. Nixon nominee Lewis Powell's most impressive stat was that he'd been American Bar Association president. Byron White earned his nomination by serving as Deputy Attorney General after using his celebrity (he'd been a pro football player) to help John F. Kennedy get elected. Pierce Butler was a former Minnesota state's attorney and respected private-practice lawyer (he counted railroad tycoon James J. Hill among his clients) whose main claim to fame when President Harding nominated him was not his resume but his criticisms of University of Minnesota law professors.
I don't have time to research this (doubtless someone will eventually) but I recall hearing lots of talk about nominating a non-judge or even a non-lawyer before Miers' name came up. It seems passing strange to me that we have now nominated a lawyer and she is being described as "totally unqualified". What changed between then and now? The LA Times offers another clue to Bush's thinking on the nomination:
In addition, senators of both parties were urging Bush to consider a nominee who has never served as a judge. Such a candidate, they said, would bring different experiences and perspectives to a court whose members had risen through the ranks of the judiciary.
And we've all been just thrilled with the decisions handed down by the majority-conservative Court this year, haven't we?
Another objection is that somehow Miers is not "a real conservative". This seems to be the default complaint launched against anyone who fails to display proper Reich-Wing Ardor, the implied threat being that one's RNC card will be pulled if one strays too far off the ideological reservation. I have always found this line of 'reasoning' repugnant and will continue to fight it with every breath in my body. Again, one finds a few facts (amazing how facts often help to inform one's preconceived notions about life) instructive:
What do we know about what kind of justice Harriet Miers will make, if confirmed? Not much, though what we do know is somewhat encouraging.
We know that she's made reference, in a 1992 article for Texas Lawyer to "the right to bear arms" on a list of "precious liberties." "As far as I know," writes Second Amendment scholar Dave Kopel, "you have to go back to Louis Brandeis to find a Supreme Court nominee whose pre-nomination writing extolled the right of armed self-defense."
And we know that when she was active in the American Bar Association, she urged that organization to put its official stand in favor of legal abortion up to a vote among members. She donated to Texans for Life (then Texans United for Life) in 1989. She's a member of a conservative evangelical church. The signs point toward "pro-life," and a pro-lifer is unlikely to uphold Roe v. Wade.
The problem is that these are far from the only issues that will face the high court. What limits are there on executive power in wartime? To what extent do constitutional rights extend to non-Americans? Does the Commerce Clause grant the federal government unlimited power over practically any aspect of Americans' lives, as the Court's liberals believe? Or are there real limits to how much Washington can encroach on state and local territory? And what about stare decisis, the principle of leaving judicial precedent settled? Even Clarence Thomas and Antonin Scalia have different approaches there (Thomas is much more willing to reconsider precedent).
Those who know Miers well have no doubts about her conservatism:
Harriet Miers' lack of a judicial paper trail yesterday prompted anxious Republicans to express doubts about the Supreme Court nominee, but her supporters say the born-again Christian has a purebred conservative pedigree. "Those of us who know her know that she's a conservative," said Texas Supreme Court Justice Nathan Hecht. "She has supported a lot of conservative candidates here in Texas. She works for a conservative president. She attends an evangelical church, and has for 25 years, and she was a conservative leader in the American Bar Association," Justice Hecht, who has known Miss Miers for 30 years, told The Washington Times. Leonard Leo, executive vice president of the conservative Federalist Society, said Miss Miers "has been a forceful advocate of conservative legal principles and judicial restraint throughout her career. She led a campaign to have the American Bar Association end its practice of supporting abortion-on-demand and taxpayer-funded abortions." And Vice President Dick Cheney said, "I think you'll find that Harriet is rock-solid, from a philosophical standpoint. "I think she will, in fact, represent the conservative view of the court, the kind that the president has said he would, in fact, nominate if elected."
Some conservatives have questioned why she donated $1,000 to Al Gore's 1988 presidential campaign, but Justice Hecht said there's a simple explanation.
Mr. Cheney said yesterday that her law firm "apparently hosted an event for Gore when he was running for president the first time."
Said Justice Hecht: "The firm probably passed the hat and said, 'We're going to give money to everyone.' That's what law firms do."
But Miss Miers has a history of supporting conservative candidates and is active in her evangelical church, the Valley View Christian Church. Raised Catholic, she became a born-again Christian in June 1979.
"The church is pro-life, always has been, and that is consistent with her view," Justice Hecht said.
There are also clues to her philosophy in her personal life:
...what is known of her life and her career indicates that she shares many of the values of the president who turned his back on his Eastern antecedents and Yale-Harvard education to embrace the culture of his adopted state.
That in turn suggests that, when it comes to forming opinions, Miers may have little in common with O'Connor, who was appointed by President Reagan and turned out to be a closet moderate who sometimes rejected conservative positions.
Miers also has had a quiet and lasting companionship with Texas Supreme Court Justice Nathan L. Hecht, who was first elected to the state's highest court for civil affairs in 1988.
Before his close friend and protegee Priscilla Owen narrowly won confirmation to the federal bench this year, Hecht and Owen were the anchors of the conservative wing of the state Supreme Court, which consists entirely of Republicans.
Though Hecht has long rejected attempts to ascribe political labels to factions of the Supreme Court, his positions on everything from abortion to business law have made him a hero to social and religious conservatives... Because Hecht has been a judge for 25 years, his positions on political and social issues are far better known than those of Miers.
However, friends say the two share a passion; they are both, for instance, fierce advocates of "tort reform," the movement to limit lawsuits and large liability judgments, especially against corporations.
Another interesting quote from Hecht:
Hecht says about Miers' judicial philosophy: "She's an orginalist -- that's the way she takes the Bible," and that's her approach to the Constitution as well -- "Originalist -- it means what it says." He notes that her legal practice involved writing contracts rather than tort law, so she was always looking at the plain meaning of the words: "Originalist." He also says she's not a social butterfly who will be swayed by Washington dinner table conversation: "She goes to the dinners she's supposed to go to. She's not on the social circuit."
Yet another argument that seems to come up frequently is "the President is asking conservatives to trust him with this appointment, and he hasn't earned that trust". The OpinionJournal examines that argument:
If his track record on judges is a guide, Mr. Bush deserves some deference. His appellate nominees have been uniformly solid, and often distinguished. One of those nominees was John Roberts, who at 50 years old is now the Chief Justice. For five years Ms. Miers has been part of the President's judicial-selection committee that promoted those nominees, and for the last year was its chairman.
The fact that Mr. Bush has known Ms. Miers so well and for so long also makes it unlikely that she is another David Souter, who was sold to George H.W. Bush as a "conservative" by Warren Rudman but morphed into a liberal on the bench. Assorted Texans who have more political credibility than Mr. Rudman--such as state Supreme Court Judge Nathan Hecht--also speak highly of Ms. Miers as a legal mind and assert confidently that she is a conservative constitutionalist.
As does Hugh Hewitt:
James Dobson endorsed Harriet Miers today. Jay Sekulow endorsed Harriet Miers today. Add their endorsements to those of the president, Dick Cheney, Karl Rove and numerous other Administration officials. Yes, I wanted Judge Luttig or Judge McConnell, but the president wanted Miers, and I don't for a minute believe it is because of friendship, but because of W's understanding of the importance of the Court.
An even stronger argument from NRO's Richard Garnett, which, by the way, reflects my own thoughts:
...the claim that "[e]ven David Souter had a more compelling resume that Miers" strikes me as quite mistaken. So does the statement that "Miers was chosen for two reasons and two reasons alone: 1. she's a she; 2. she's a long-time Bush friend." There is, at least, a (3), namely, that President Bush and his advisors — his advisors who are, it should be remembered, entirely committed to constitutionalism in the courts — believe that Ms. Miers is a judicial conservative.
I yield to no one in my respect for the "farm team" — McConnell, Alito, Luttig, etc. — but I am also surprised that some are so quick to assume that this President, who fought hard to get home-run judges Pryor, Owen, Colloton, Brown, McConnell, Sutton, Roberts, etc., confirmed to the courts, would suddenly drop the constitutionalism-ball just to be nice to an old friend or to satisfy those demanding another female justice. This is a White House — and, more particularly, this is a White House Counsel's office — that is well stocked with very smart conservative lawyers, who understand that few things are as important to a President's sucess, and few tasks are as central to his constitutional obligations, as judicial nominations. Whatever our complaints might be about some of this President's decisions, I do not think he has ever given conservatives anything to complain about when it comes to judges and Justices.
It would, we all agree, have been a horrible betrayal and an epic blunder for this President to think that by nominating a woman to the Court — a woman without, arguably, battle scars from the "culture wars" in the courts, he could please the Left or guarantee an easy nomination process. It seems to me, though, that there is no reason to think that this President thought or thinks this. President Bush clearly believes that Harriet Miers is a conservative, who does share the commitment of Justices Scalia, Thomas, Rehnquist, and Roberts to a democracy-respecting understanding of the Constitution. This is not a case where those of us who believe strongly in the rule of law are being asked to rely on the vouching of Sununu and Rudman; this is a case where an Administration that has consistently — uniformly — picked solid judges is holding out a nominee who, the Administration reports, is every bit as solid. Frankly, I'm pleased by the fact that the White House Counsel who gave us Roberts, Pryor, Owen, and Brown has been nominated to join their ranks.
On the charge that she will take the Court Leftward:
I believe that is beginning to be rather thoroughly refuted by a look at the candidate's personal background and character. David Frum makes a rather condescending argument here:
The pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements--the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard--that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is hard for me to imagine that she can endure the anger and abuse--or resist the blandishments--that transformed, say, Anthony Kennedy into the judge he is today.
Blog9 argues persuasively against Frum:
Harriet Miers 1)went to SMU law school, not Harvard or Yale; 2) worked for a nice solid Dallas corporate law firm for most of her career; and 3) lets be honest here, does not seem a particularly glamorous or fashionable sort. The pressures of the "left" are strongest on those that want what the left can provide, i.e. acceptance at fancy law schools and New York dinner parties. It doesn't seem like Miers (unlike John Roberts or Anthony Kennedy or Frum or Bill Kristol) has ever aspired to any of that stuff and my guess is her taut anxious self probably doesn't feel especially comfortable in that crowd. Why would she turn away from the people she has surrounded herself with all her life (conservative Christians from Dallas) in order to gain entry to an appreciative welcome at a Columbia Law School reception, where she'll probably never be progressive enough or cool enough anyways...
I have to agree. Looking at Miers' life, that's the last thing in the world I see happening. I see a hard-working, focused, introverted woman who is more concerned with doing her job and staying in touch with a small but close circle of friends than what a bunch of snooty elites think of her. I can't see her being in the least swayed by pressure from the press or flattery from anyone else. And I believe, in the end, that may be why the President picked her. She is the antidote to the attenuated, disconnected elite sort of justices that were capable of handing down a travesty like the Kelo decision - a horrible shocker that will continue to affect the lives of Americans for generations to come. And we got that wonderful decision from a bench full of "well-qualified" judges.
Maybe it's time for a difference perspective - a little common sense. Of all the voices on the Supreme Court this last term, the one who shone forth, in my opinion, was the one who was most often dismissed two years ago by all the so-called "real" conservatives: Clarence Thomas. He has been the Justice who has most ardently defended the original meaning of the United States Constitution. A few years back you never heard "Scalia and Thomas" - that is a recent development from people who have suddenly discovered something that was there all along. And for all the bashing of O'Connor, she voted with Scalia and Thomas 80% of the time, which in my book puts her firmly in the Scalia/Thomas camp vote-wise, if not ideologically. But we don't like to admit that when we're on our ideological high horse. I was no fan of O'Connor, but to all indications, Miers will be to the right of Justice O'Connor and "real conservatives" are still up in arms over a Justice who will most likely be to the right of a Justice who voted with Scalia and Thomas 80% of the time.
And if I sound angry, well I suppose I am. Why not lose the snobbery? Question away, but give this candidate a chance on the merits. She will either prove herself (and again, I don't care if she does or not) or go down in flames, but as "real conservatives" are so fond of saying, the President is allowed to appoint whomsoever he pleases. His choice is due deference...or was that statement true only when it suited the RNC?
Posted by Cassandra at October 4, 2005 06:09 AM
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» Harriet Miers roundup: Cotillion Edition from MY Vast Right Wing Conspiracy
This isn’t THE Tuesday Cotillion carnival, that one is HERE at The Gray Tie. I just threw this together for some more blog reaction, and with a couple exceptions, the women of Cotillion are pretty much on the same page about the Miers nomination... [Read More]
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Tracked on October 5, 2005 05:38 PM
Well, someone has to play human dartboard. You know how we Delicate Women of the Blogosphere shrink from controversy and all.
It might as well be me - I already have the target lines all drawn up... :)
Posted by: Cassandra at October 4, 2005 10:10 AM
You've helped bring around quite a bit on this issue, Cassandra, so thank you. Good points, all of them. I'm more comfortable with this nomination now.
Call me cynical, but I fully expect one of the Democrats on the Senate committee to bring up the issue of her religious beliefs and try to make political hay out of it. I'm hoping she'll stick to her guns and just tell them that it's none of their damned business...well, maybe not quite like that, but something close. :-)
Posted by: Sloan at October 4, 2005 12:45 PM
I'm sorry, I just expect a position with only nine slots to be filled by someone I can evaluate without having to have "faith" in Putin endorsing, high spending conservatives like Bush. Maybe a job with only nine openings, while 20 deserving people we all know could fill it, shouldn't be given to an "Bush worshiping insider" whose name doesn't have to be Googled and whose resume doesn't have to be filled in after the fact.
Posted by: KJ at October 4, 2005 03:00 PM
I'm glad, FWIW, that she went to a normal, good law school. That is not the source of my snobery at all.
Posted by: KJ at October 4, 2005 03:02 PM
I'm still not buying it. I'm leery - very very leery - when the President says that Miers shares his philosophy on the Constitution. The fact is that his record on Constitutional issues has been, if not abysmal, then pretty darned rotten.
I don't want someone who thinks like George Bush about the Constitution on the Supreme Court. Not in a million years.
Posted by: Jimmie at October 5, 2005 12:03 AM
It seems to me that President Bush has shown a desire, time and time again, to put forth candidates for both SCOTUS positions and for lesser judicial appointments who agree with his own judicial philosophy. Why should we expect Harriet Miers to be any different?
I just wish conservatives didn't feel this obligation to find "stealth candidates." We should unapologetically put forward highly qualified Constitutional constructionists who understand the proper role of the judiciary, and let the Senate Democrats explain to the American people why such a person should not serve on the Court. They can only get away with Borking a nominee so many times before they expose themselves for the litmus-test idealogues that they are.
Posted by: Sloan at October 5, 2005 12:13 AM