Saturday, October 22, 2005

Miss Miers the originalist and Mr Will

For the last few days, those of us who have supported the confirmation of Harriet Miers have been told that George Will had another column coming out on the Miers' nomination. It was supposed to be "brilliant", which knowing Mr Will is perfectly plausible. One hoped for a thoughtful, cordial piece, executed with Mr Will's customary urbanity and erudition.

Mr Will in his very first sentence writes:

Such is the perfect perversity of the nomination of Harriet Miers that it discredits, and even degrades, all who toil at justifying it.

All--not some, but all--who support the Miers nomination are by virtue of their support "discredited" and "degraded". They are supporting a nomination "perfectly perverse". Here at President Aristotle, I try not to speak that way even of...Democrats. Mr Will declines to offer a patient, sympathetic exposition of his own point of view. His purpose, unfortunately, is rather to sneer at those Republicans who support the nomination; as well as those many Democrats with first-hand knowledge of Miss Miers who think that she would make an excellent justice.

Many of their justifications cannot be dignified as arguments. This is true, of course; but not uniquely so: the same can be said of both sides in pretty much any debate.

Of those that can be, some reveal a deficit of constitutional understanding commensurate with that which it is, unfortunately, reasonable to impute to Miers. This might be correct, but it is not immediately clear how George Will would know: Mr Will can claim many educational credentials, but not apparently a law degree. And he chooses not to discuss those of Miss Miers' defenders who do have law degrees, who have worked with her personally, and who state that she is both a first-rate lawyer and an originalist--exactly the sort of person that thoughtful conservatives might think about supporting.

Next, Miers's advocates managed, remarkably, to organize injurious testimonials. Mr Will is certainly on to something: the deficiencies of the White House's campaign for Miss Miers are all too glaring. Mr Will cites a few testimonials that he finds particularly vacuous, graciously neglecting the ones to her skills at cooking and bowling. But it is rather too bad that Mr Will chose not to discuss the testimonials of the Texas attorneys consulted by Beldar: "Percentage expressing any doubts about her fitness for the Court based on personal knowledge and dealings with her: Zero." Or the testimonial of Ken Rainey, Texas bar: "she is brilliant...She appears, as I have observed, to be a strict constructionist ”. Or Colleen McHugh, Texas Bar: "That she is hard-working explains why she is able to do so much...She is also brilliant." Or Ken Starr:
"Starr: I think she's terrific...I've known Harriet Miers for over 15 years....She is enormously talented.
Hannity: Do you have any doubts whatsoever that she's an originalist in the mold of a Scalia or Thomas?...
Starr: ...I don't."

Nor does he discuss Federalist Society official Leonard Leo's affirmation of her Robert Bork-like originalism: He spoke as one who has known and worked with her for well over a decade, who has played host to her when she has been a Federalist Society speaker, and -- perhaps most significant -- who joined her in a battle to get the American Bar Association to rescind its resolution endorsing Roe v. Wade , the decision establishing a right to abortion.

The first thing Leo said was that Miers's statement accepting the nomination from Bush was significant to him. "It is the responsibility of every generation to be true to the Founders' vision of the proper role of courts in our society . . . and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution," she said. "When she talked about 'the Founders' vision' and used the word 'strictly,' " Leo said, "I thought, 'Robert Bork,' " Ronald Reagan's Supreme Court pick, who was rejected by the Senate after a bitter fight. "She didn't have to go there. She could simply have said, 'Judges should not legislate from the bench.' But she chose those words."

I asked if he was surprised that she did -- or whether it was consistent with what he knew of her judicial philosophy. He replied: "I'm not surprised that's what she believes. I'm surprised her handlers let her say it."

Critics of the Miers nomination have not been satisfied with the above testimonials, and perhaps they are correct. But Mr Will does not explain why these are not convincing reasons to support Miss Miers--he simply sets them aside, preferring instead to sneer at easier targets of ridicule.

Miers's advocates tried the incense defense: Miers is pious.
But of course, the argument was not that she was pious; the argument was that she was an evangelical, which is not the same thing. At least two points were being made: The first point was an appeal to an important national constituency. Despite the fact that evangelicals constitute 15% or more of the population, there has apparently been no self-identified evangelical on the court since Hugo Black. Perhaps, President Bush is to be criticized for trying to reward a major GOP voting bloc; but that is not the same as an appeal to piety.

The second point is that evangelicals tend to be strict constructionists in both Constitutional law and biblical practice. This link was made explicitly by one of her Texas defenders who pointed out that Miss Miers applied strict construction to both the Bible and the Constitution. While no one thinks her religion is a qualification for public office, an understanding of her religion clarifies the roots of her constitutional philosophy--whose alleged absence troubles Mr Will. These roots will only confirm the criticisms of those academics who dismiss originalism as a fundamentalist approach to the Constitution. But they sharpen the social sources of her commitment to originalism, as well as highlighting the depth and strength of that commitment.

The crude people who crudely invoked [her piety] probably were sending a crude signal to conservatives who, the invokers evidently believe, are so crudely obsessed with abortion that they have an anti-constitutional willingness to overturn Roe v. Wade with an unreasoned act of judicial willfulness as raw as the 1973 decision itself. This is a sentence that Mr Will should probably not have written: on the one hand, he wants (reasonably) to dismiss the charge that Miss Miers' critics are elitists; on the other hand, he suggests (unreasonably) that Miss Miers' defenders are "probably" a bunch of "crude" yahoos. Mr Will could scarcely have written a more self-defeating and self-contradictory sentence.

Worse: he simply misses the message--Miss Miers' defenders have been very far from suggesting that conservatives "have an anti-constitutional willingness to overturn Roe v. Wade with an unreasoned act of judicial willfulness as raw as the 1973 decision itself." On the contrary, HM's defenders have consistently portrayed her as a legal trailblazer for women, one of the top 100 women lawers in America; a woman who would put her considerable legal talents to the service of an originalist constitutional philosophy similar to that of Scalia and Thomas; and a woman who has openly proclaimed that "it is the responsibility of every generation to true to the founders' vision" and that judges have authority to make decisions based "only on the founders' vision--the rule of law"; thereby implying that one cannot depart from originalism without subverting the rule of law itself. Far from promoting a raw display of conservative judicial power, her defenders have signaled that she would reverse Roe v Wade on the basis of an originalist constitutional philosophy that her stellar legal career gives her ample skills to articulate.

Of course, Mr Will scoffs at this as quite absurd. Mr Will, who knows neither law nor Miss Miers, deems her a legal nitwit with no constitutional philosophy of law at all. Her defenders, who know both law and Miss Miers, think her a first-rate lawyer and an originalist. Perhaps Mr Will is right, and her defenders are wrong. But he should not confuse his arguments with theirs.

Mr Will goes on to write: Thoughtful conservatives' highest aim is not to achieve this or that particular outcome concerning this or that controversy. Rather, their aim for the Supreme Court is to replace semi-legislative reasoning with genuine constitutional reasoning about the Constitution's meaning as derived from close consideration of its text and structure. Of course it is precisely for this reason that thoughtful conservatives have praised Miss Miers' statement on judicial activism: "For the legal system to be predictable, the words are vital -- whether they are agreed upon by parties to a contract or are the product of legislative compromise. Many times in practice I found myself stressing to clients the importance of getting the words exactly right if their interests were to be protected in the future...Courts should give proper consideration to the text as agreed upon, the law as written, and applicable precedent." Mr Will, in his critique of Miss Miers' legal philosophy, declines to cite a single word from her statement on exactly this issue. Those who have studied have found much to praise, some even thinking it a better statement of originalism than that of John Roberts. Mr Will is free to disagree; but his reasons would be more convincing if he engaged with her statements, rather than omitting them altogether.

The rest of the column collects a few more sneers and insults, but there is little more of intellectual content that needs discussion.

In 2004, President Bush was re-elected, vowing to appoint to the Supreme Court justices of the same mold of Scalia and Thomas. On the basis of a decade's close work with Miss Miers, the President believes her to be an outstanding lawyer who shares the Scalia/Thomas originalist approach to jurisprudence. Nor is this just his view: those who have worked with her over the years also agree that she is a first-rate lawyer with an originalist philosophy of Constitutional law.

We go forward now to the hearings where we hope to see this substantiated in further detail.

UPDATE: Welcome to Hugh Hewitt readers!
UPDATE 2.0: The American Spectator discusses the Will column.


At Saturday, 22 October, 2005, Blogger 37383938393839383938383 said...

It is true that John Roberts made statements that sounded more like Oakeshott than originalist. But that is because he had to appease the Left: we on the right already knew he was conservative.

We on the right do not know that Miers is a conservative. Thus, there is no double-standard.

If you think that John Roberts is not conservative, then you think Clark Kent is not Superman. We still have no complete picture of Harriet Miers, but she appears to be a liberal in size 6 shoes.

At Saturday, 22 October, 2005, Anonymous SpectatorGirl said...


Congratulations on the link from Hugh Hewitt. Your fame spreads.

At Saturday, 22 October, 2005, Blogger antimedia said...

I find myself scratching my head, trying to figure out how criticalobserver could read what you wrote and respond the way he did. Frankly, I don't have an answer.

In any case, well done. I have held back on committing, one way or the other, to the Miers nomination, preferring to wait for the hearings in order to get a better grasp of her opinions and how she articulates them. However, your arguments have won me over.

At Saturday, 22 October, 2005, Blogger 37383938393839383938383 said...

I find myself scratching my head, trying to figure out how criticalobserver could read what you wrote and respond the way he did. Frankly, I don't have an answer.

Because unlike you, I am a conservative. You are a fascist who kneels before the Imperial Presidency.

At Saturday, 22 October, 2005, Anonymous Aitch748 said...

Because unlike you, I am a conservative. You are a fascist who kneels before the Imperial Presidency.

Which is exactly George Will's point, oddly enough -- that all of Miers' opponents are degenerates, and any Senator who doesn't treat the Miers nomination as a gross abuse of presidential power has forfeited the right to be treated as presidential material.

Apparently the die-before-compromise Right have joined their brothers on the "Bush-is-Hitler" Left.

At Sunday, 23 October, 2005, Anonymous Aitch748 said...

Oops. I should have said that Will's point was that all of Miers' supporters were degenerates.

And just in case my post was ambiguous, I want to say that I disagree totally with Will and in fact am disgusted with his column, and that I agree completely with President Aristotle about this crap article.

At Sunday, 23 October, 2005, Blogger The Hedgehog said...

Well said, President Aristotle. This is the type of discourse I wish we were seeing from that chunk of conservativism that so stridently opposes Ms. Miers. Above, criticalobserver seemingly wants to represent all of their intellectually thuggish tendencies in a single comment post.

At Sunday, 23 October, 2005, Blogger zeppenwolf said...

The inaptly named "criticalobserver": But that is because he had to appease the Left: we on the right already knew he was conservative.


If Roberts says something Lefty-sounding, that's because he leans to the Right.

If Miers says something Lefty-sounding, that's because she's Darth Vader Ginsburg.

Ok, got it.

At Sunday, 23 October, 2005, Blogger GrenfellHunt said...

Thanks to everyone for dropping by! And thanks especially for SpectatorGirl's kind words.

I don't see why HM should be a litmus test of who is or who is not a "real conservative". We all seek solid originalist justices for SCOTUS who will recognize the wrong of Roe and seek to set it right. Mr Will seeks that as much as any of us. I don't see why a difference in tactical evaluations over Miss Miers should be a cause for recriminations among Republicans.

At Sunday, 23 October, 2005, Blogger GrenfellHunt said...

Quick point: I do think Roberts is a conservative--I'm not convinced that he'll reverse Roe, although I'm hopeful. Roberts is also reluctant to go on-record supporting originalism. What is interesting is that HM went much farther in supporting originalism in her Senate questionnaire than Roberts did.

HM has consistent conservative record from 1989 on, and is well worthy of conservative support. But see my numerous other posts on this here at the blog.

At Sunday, 23 October, 2005, Anonymous Knemon said...

"Because unlike you, I am a conservative. You are a fascist who kneels before the Imperial Presidency."

How to win friends and influence people ...

At Sunday, 23 October, 2005, Anonymous Luke said...

Good post Grenfell and especially helpful to those of us still riding the middle road and patiently waiting on Nov 7th.

I think if Miers is confirmed and a deciding vote is needed on a Roe decision, the hesitancy may come from Roberts rather than Miers.

At Sunday, 23 October, 2005, Anonymous SilverPaladin said...

Weak, President Aristotle.. exceedingly weak.

1) Mr. Will not having a law degree/Miers supporters having law degrees is irrelevant to the question of her level of constitutional understanding. Senators who have met with her and discussed specifics have come up unimpressed. Arlen Specter states she needs to take a 'crash course'. These are a lot more damnning then public support from Mier's cronies from the Texas bar, and Texas attorneys who know Bush is just as capable of playing hardball in his home state as in New Hampshire (see .

2)"One of the top 100 lawyers in America" - next time, read the article making that determination, not the Republican talking points. Mier's membership in the 'top 100' was explicit on her access to President Bush, thus having the same import as "one of America's top Domino Pizza deliverers" being the guy with the White House route.

Could go on, but the bottom line is, the largest part of your issue with Will is that he, unlike you, is unwilling to take
1) "Trust me"
2) "Look at what her friends say"
3) "Her nomination acceptance statement says all the right things"

as sufficient evidence for a lifetime appointment.

At Sunday, 23 October, 2005, Anonymous Al Reasin said...

I respect Mr. Will, but he has come across recently as part of the “effete corps of impudent snobs” that Vice –president Agnew once referred to in a speech. I was lukewarm to Ms. Miers’ nomination; however Mr. Will’s essay put me solidly in her corner. It is a shame that many intellectual conservatives that I have highly respected seem to have gone off the cliff over Ms. Miers. I wonder if her rebirth as an evangelical after supposedly being a Roman Catholic clouds some perceptions of her. Actually, Ms Miers acquaintances have said that she worshipped as a Catholic and attended Episcopalian and Presbyterian services, but was not a Roman Catholic.

At Monday, 24 October, 2005, Blogger GrenfellHunt said...


1. I don't think the excellence of her skills as a lawyer is really in doubt. For Senator Specter's estimation of her, see the latest post on my blog.
2. As for her top 100 ranking--my post at that point was summarizing the standard arguments made for her by her defenders, especially the administration. That there are problems with that top 100 claim is something I examined in a previous post. Although I think she's an excellent lawyer, the use of the top 100 citation is problematic.
3. I don't think I recognize your summary of my case: a) I have never used or accepted the "Trust W" argument. b) The excellence of her legal skills is what took her to the top of the legal profession in Texas--that is the objective evaluation of her peers, and it cannot be dismissed as simply the word of her friends. c) Her Constitutional originalism is certainly stronger than that of Roberts. In sum, I think a first-rate lawyer who is committed to original intent is well-worthy of SCOTUS.

At Monday, 24 October, 2005, Blogger Alexandra said...

Grenfell, great post. I linked you in my The Incredulity of St.George Will’

Criticalobserver change your name to 'rudeandcrude', it would suit you much better. I can see your eloquence stretches to the all incompassing 'fascist' noun. You would do well to line up behind George Will today.

By the way read up a little more on Miers before you make such utterly uninformed comments, and Grenfell's article would be a good start. But then by now, I can see you are no longer there, you've exhausted your extensive vocabulary, and left.

At Monday, 24 October, 2005, Blogger Alexandra said...

This comment has been removed by a blog administrator.

At Monday, 24 October, 2005, Blogger deignan said...

"All" is right in this case.

The Constitutional system that we have relies on a separation of powers--especially between the judiciary and the executive. Putting a fawning lackey on the SCOTUS is a violation of this principle. So, it really doesn't matter what other qualities Miers has or how she might vote. In this regard, he appointment is a frontal assault on the Constitution.

Of course, Bush swore an oath to this Consitution, an oath that he seems to consider as important as his campaing promises.

At Monday, 24 October, 2005, Blogger deignan said...

This comment has been removed by a blog administrator.

At Monday, 24 October, 2005, Blogger deignan said...

This comment has been removed by a blog administrator.

At Monday, 24 October, 2005, Anonymous flytier1 said...

Hi All,

I think that SilverPallidan missed the point. I am not a lawyer (I have degrees in physics). Whatever pretensions anyone posting on the internet may have, it is still just people posting stuff on the internet. I always take at least a grain of salt with any post. I agree that arguments based merely on credentials mean little to me. The argument made is key. I often find people who have no training who try to make scientific and mathematical arguments miss the point. Sometimes they seize on some trivial mathematical detail when the discussion is a back-of-the-envelope calculation. In cases when the inputs to the discussion are rough estimates, it is foolish not to approximate (many times severely). This often confuses non-scientists. I think it reasonable to expect similar things when entering someone else's area of expertise. I have been reading Hedgehog, Beldar, and Hugh Hewitt. They have expertise in this matter, but I also find their arguments compelling (and not strident, or seemingly petulant). I just do not see that Will even tried to make much of a case. I was as disappointed as anyone that someone such as Luttig or Brown (if it had to be a woman which seems asinine) was not chosen, but my position is to wait and see. I do not have the hubris to think that I am an expert on such things. Still, so far, I am more persuaded by the calm reasoned arguments on what Hugh calls the anti-anti-Miers' side.


At Monday, 24 October, 2005, Blogger GrenfellHunt said...


Thanks for your comments, and I agree. And I too would have picked someone other than Miss Miers; but that having been done, I think she'll be a good addition to the Court

At Monday, 24 October, 2005, Blogger GrenfellHunt said...


Thanks for the link and your kind comments. I'll try to get the typo corrected!


At Monday, 24 October, 2005, Blogger GrenfellHunt said...


1. You really lose me with the abusive comments about the president. They are unwarranted and unconstructive.
2. As for the notion that HM is lackey and as such her appointment constitutes a violation of the separation of powers: a) I don't think she's a lackey; b) it is scarcely a violation of the Constitution for the president to use his article II powers to appoint someone he trusts to do a good job.
3. Since the publication of the 1989 survey showing HM to favor a ban on abortion, the attempt to argue that HM is pro-Roe has been devastated--although perhaps not 100% refuted. I hope we can return to that debate elsewhere.


At Tuesday, 25 October, 2005, Blogger deignan said...


The Texas lottery job was described as "thankless". So to was the staff secretary job.

A crony is a long time friend--someone on a social par with the other person. The word "crony" doesn't really describe this synchophatic senior-subordinate relationship. Now, you may know of a more appropriate word, but having researched this somewhat, it does appear to me at the time that the best description is "lackey".

"Toady" is not quite right for other reasons. I could defend Miers as not being a "toady".

Anyway, this is a clear violation of the principle of separation of powers (see federalist 76). The mechanism in the Constitution is "Advice and Consent". There can be not strict Constitutional provision that says, "No lackeys on the court". However, the threat to the Constition should be clear. Think of McCain-Feingold and Bush v. Gore.

At Tuesday, 25 October, 2005, Blogger deignan said...

Caveat: If Miers did lobby for the Justice job, "toady" would still be in play.

I do not think she did. It appears to me that Bush selected her for a purpose--to carry out his will on the Court. Thus "lackey" rather than "toady".

At Wednesday, 26 October, 2005, Anonymous Peggy said...

President Aristotle, thank you so much for your well-reasoned and temperate comments. Those attacking Bush and Miers sound pretty desperate to me, not wanting the nation to even hear her responses in a hearing.

At Wednesday, 26 October, 2005, Anonymous Anonymous said...

Odd that a longtime icon of the conservative movement should choose this hill to die on. George Will used to make sense.

It appears to me, crude evangelical Christian that I am, that Will is pulling back the curtains on a long held anti-Christian bias that has now managed to insert itself into most of what he writes-- and in doing so, has managed to remove the once-famed common sense of Will's stuff.

At Wednesday, 26 October, 2005, Anonymous Anonymous said...

Deignan wrote,

"The word 'crony' doesn't really describe this synchophatic senior-subordinate relationship."


the word "mispelled" doesn't truly describe your rendering of the word "sycophantic" either. More like "butchered".

But on the subject of cronyism, GWB watched his dad choose a justice who swerved so violently to the left he got whiplash. How to avoid same? Choose someone very well known to you.

If that's cronyism, so be it. Bush is responsible to the nation, and to his party, to choose someone about whom he can be confident. We're out here attempting to gain confidence through written records; Bush has confidence in Harriet without those records. He knows her well.

If pundits want to choose the next Supreme nominee, then let them get themselves get elected president. Meanwhile, those who have publicly said they have faith in Bush and trust him, let them test that faith and trust. Faith isn't faith until it's tested. The trust in Bush which republicans have evinced over the years is turning out to be a big joke, imho.

At Monday, 14 November, 2005, Anonymous Jim Online said...

I think Harriet is a good choice, considering Bush is in her favor. Roberts is not just working for me.

At Friday, 03 July, 2009, Anonymous Anonymous said...

Harriet is not a Souter. In Texas we divide people into groups. The reasonable, unreasonable, and those who do not care. We do not care if we are not invited to certain cocktail parties or what a little twit like shrimp pontificating about a piece of paper that anyone can interpret it's meaning if one can read and write above an tenth grade education. It does not require years of study at Harvard, Yale, or Princeton.
Thanks to all for your support of Harriet and if you want to see the real Harriet, google "the miers they missed" by the washington post of all people....they do have a few honest people and the article is all true

At Thursday, 28 June, 2012, Anonymous Anonymous said...

Clark Kent is not Superman; Kal-El is, and Clark Kent is his adopted name. In the same manner, John Roberts has proven himself to not be conservative on June 28, 2012 with his absurd ruling that the Obamacare individual mandate is a "tax" (without saying what kind of tax, to boot).


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