Friday, October 07, 2005

The myth and the logic of the Miers pick

W's stunnning decision to promote Harriet Miers to the Supreme Court has left a legacy of myths and mysteries swirling through a murky week of political discourse.

1. The crony question
One conservative critic wrote: [W] abandoned his principles, his party, his loyal followers all to indulge his personal favoritism. Is this really true?

How did Harriet Miers come to be considered for the US Supreme Court? Well, we know how: she deeply impressed the US Senate in her work on the Roberts nomination. Senator Harry Reid suggested to President Bush that he should not limit his search to judges--which is what W had done so far. Senator Reid told W that he should look at lawyers also; which W hadn't previously considered. Senator Reid went on to say that Miers would be an excellent choice. And consultations with both parties found the Senators impressed with her based on their experience with her during the Roberts hearings.

So Miers became a candidate, not because the president was looking to put a crony on the court but because her excellence was recognized by both parties in the United States Senate; they took the initiative in telling W she was worthy and qualified for the Supreme Court.

So this is not a case of a crony-conscious president trying to pack the court with unqualified pals. It is the exact opposite. Miers' excellence was highly regarded by those outside the administration, and it was they--not W--who put Miers' name into contention.

It is quite surprising in light of this history that some have claimed that no one would have thought Miers was qualified for SCOTUS except a president looking to pick a crony. On the contrary: it was precisely because those outside the White House thought she was worthy to be on the Supreme Court that the White House began to think about it. If it were not for the initiative taken by Reid and the Senate, we would still be looking at White House Counsel Harriet Miers.

2. The decision to pick Miers
Once Reid and the Senate wrote Miers' name onto the list, it is scarcely surprising that W decided to choose her. All presidents seek justices that will agree them about 100% of the time. W--after over ten years of working with Miers--knew that Miers agreed with him on pretty much everything. With Reid and the Senate effectively signalling that they were ready to confirm her, W had the opportunity to place on the Court a pick whose views almost perfectly mirrored his.

Some have been disappointed that W didn't pick a more controversial nominee. But there was little need to do that from W's perspective. For W, there was no need to go to the nuclear option when the other side was waving the white flag of surrender.

3. Miers' conservativism
Miers' conservativism is classic Texas barbecue:

3.1: Guns. Over at Patrick Ruffini's blog, Ruffini pointed out a forceful defense of gun rights that Miers gave shortly after some senseless shootings:

The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs.

Adds David Kopel, "As far as I know, 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."

3.2: Gays.
From NRO:
WASHINGTON — Supreme Court nominee Harriet Miers went on record favoring equal civil rights for gays when she ran for Dallas City Council, and she said the city had a responsibility to pay for AIDS education and patient services.

But Miers opposed repeal of the Texas sodomy statute _ a law later overturned by the court on which she will sit if confirmed _ in a survey she filled out for a gay-rights group during her successful 1989 campaign.

O'Connor, of course, struck down the Texas sodomy law as Supreme Court justice. Miers was one of the supporters of that law. It is not likely that Miers would have supported it if she agreed with O'Connor that it was contrary to the constitution.

This is not a small issue or a small concern. The Supreme Court in Lawrence v. Texas (2003) laid the constitutional foundation for mandatory gay marriage in every state in the Union. The judicial activism of Massachussetts judges in forcing gay marriage on their state was based squarely on Supreme Court precedent. That decision sent the entire American political system into turmoil, and certainly played a role W's 2004 victory.

It is absolutely essential that the next Supreme Court justice either vote to reverse Lawrence or at least exclude any extension of its appalling logic. In Miers we have a nominee who gives every indication of doing exactly that. With gay marriage as the next great territory for the advancing armies of judicial imperialism, Miers is exactly the kind of person that should be sent to the Supreme Court. In nominating Miers, W kept faith with the millions of voters who expected to him appoint justices who would defend the Constitution from pro-gay marriage judicial imperialists.

3.3: Pro-life. Probably no-one underestimates the role that abortion played in the last election. CNN's exit polls for 2004 show:

Always Legal (21%) ..............25% +0 73% 1%
Mostly Legal (34%) ..............38% +0 61% 0%
Mostly Illegal (26%) .............73% +4 26% 0%
Always Illegal (16%)............. 77% +3 22% 0%
(+figures=increase for Bush from 2000)

I do not want to claim that pro-lifers alone elected Bush. But on any reading the pro-life movement was essential to W's 2004 victory. The increase in his vote totals came from the 42% of the American population who thought abortion should be always or mostly illegal. These voters trusted W to appoint justices to the Supreme Court who would reverse or limit Roe. This issue was absolutely central to W's victory and coalition; it is part of his mandate and charge that he received as a trust from the American voters.

This is a difficult charge since Roe is deeply controversial even among Republicans in the US Senate. Perhaps 52 Senators are on record supporting Roe, and a nominee who openly declared that she would reverse it could probably not be confirmed. Nonetheless, in choosing Miers, W sent to the US Senate a SCOTUS nominee who:

1. Contributed $150 to Texans for Life in 1989.
2. Ran for Dallas City Council as a pro-life candidate.
3. As head of the Texas Bar in 1992-93 fought the ABA's pro-abortion policies.
4. Since 1990 has made 13-14 political contributions, ALL of which have gone only to 100% pro-life candidates.
5. In 2000 made an astonishing contribution to Nebraska attorney general Donald Stenberg who had just defended Nebraska's ban on partial birth abortion before the Supreme Court. This is the only out-of-state political donation of her life, and it strongly indicates a deep commitment to and interest in the pro-life movement.

Hence, on pro-life issues, Miers is no stealth candidate. Her pro-life convictions are clear, public and on-record. W kept faith with those who voted for him by nominating a justice who clearly reflected the pro-life values of his coalition. I know of no nominee to SCOTUS in our generation whose pro-life track record is so extensive or so openly documented. None of the heroes of judicial conservatives--such as Scalia and Thomas--had a such a record prior to their nomination. And certainly John Roberts was vastly more of stealth candidate on this issue than Miers. Indeed, the real fear is that the Senate will find her pro-life stance unacceptable, and that she will be the victim of a liberal borking.

Nonetheless, for now, W has kept the charge he received from pro-life voters and rewarded their faith in him.

4. The counter-attack:
Yet attempts have been made to attack Miers' conservative credentials. Perhaps the chief attack has focussed on affirmative action and the Grutter case. One critic wrote:

Many in the administration wanted to take a strong stand in favor of color-blindness. In the end, the administration faltered and argued that racial preferences are okay, up to a point. It is hard to imagine a more central issue to modern legal conservatives. Where was Miers? On the wrong side.

Notice: the writer does not say that Miers supported racial quotas. Nor does he say that she favored reverse discrimination. Nor does he deny that the administration's in-house conservatives were themselves divided on the issue. Rather, Miers' crime is that on a difficult question of race in higher education, she took a postion that W later agreed with too. Conservatives sometimes fall into schismatic in-fighting; for our advocate of purer-than-thou conservativism, it is an outrage that on a difficult issue W dared pick a justice who agrees with him.

But worse: for this writer, absolute opposition to affirmative action is--apparently--the true touchstone of "modern legal conservativism". The slightest deviation from this apparently outweighs all else; he writes: "it is hard to imagine a more central issue". So much for the war on terror and so much for the pro-life movement. Now every conservative is free to define conservativism as they see fit. But the judicial conservatives over at First Things would disagree with this conservativism; as would, I think, those at Commentary and the Weekly Standard.

And so would the American people. The kind of judicial conservativism that the American people voted for in 2004 was not rooted in race. The inroads that the GOP made with blacks and Hispanics are a proof of that. Rather, the judicial conservativism of 2004 was rooted in a decades-long fury over Roe. It was deepened by the new judicial imperialism of pro-gay marriage judges that helped bring blacks and Hispanics into the GOP fold. It was shocked by the radical attempts to exclude any reference to God in public life--even when it came to the pledge of allegiance. And even national survival seemed to be at stake when some judges seemed to be looking for legal loopholes to let terrorists go free.

It is this judicial conservativism that the American people mandated in 2004, and it is with this judicial conservativism that President George W. Bush kept faith when he nominated Harriet Miers: a woman who is pro-life, pro-traditional values, and one of the president's key people on the constitutional basis for the war on terror. And it is this woman, who rose to the top of the legal profession in Texas, who battled discrimination, whose legal talent was such that Senators on both sides of the aisle recognized it and suggested the president promote her to the Supreme Court; it is this woman who deserves the support of all those who support the President and who voted for his mission in November of 2004.

George W. Bush has kept faith with his people and his coalition in giving us a strong judicial conservative and a talented legal professional. We have the opportunity to keep faith with him and the common cause we undertook together in the Autumn of 2004.

In writing this I do not wish to suggest lack of respect or affection for those troubled by the Miers pick; I only wish to suggest that the choice is ultimately sound, and careful consideration warrants giving her our support.


At Friday, 07 October, 2005, Blogger dan said...

Another good thoughtful commentary. BTW, Stenberg is currently battling against Planned Parenthood so he can get records from abortion clinics re: abortiosn given to minors so he can investigate possible cases of child abuse and statutory rape. Nathan Hecht is a saint to pro-life Texans. How much doubt can there be that this lady is going to uphold the Federal PBA and the New Hampshire parental consent law? Then, the way is open to test Casey as states pass statutes re: requiring sonograsms, requiring fetal pain medication, etc.

At Saturday, 08 October, 2005, Blogger PDS said...

I agree with Dan about this being another good, thoughtful commentary. However, I think not enough attention has been paid to the highly qualified individuals she "aced out" by getting the nod, nor has enough attention been paid to the manner in which reveals President Bush's tired decision making at the moment.

At Sunday, 09 October, 2005, Blogger Andrew said...

Hi. The quote about gun control contains errors, as discussed here....

At Sunday, 09 October, 2005, Anonymous Dave Deavel said...

I'm not buying it, Bruce. Nobody'd ever heard of her until yesterday and it simply is a way of pulling out of a fight to get someone brilliant and philosophical like Luttig or McConnell.

Her personal history is also a bit vague, leading one to question whether she really has any enduring beliefs.

At Monday, 10 October, 2005, Blogger GrenfellHunt said...

Dear Gang:

1. I agree that I would have preferred someone with a glitzier resume. I was suggesting McConnell before the nomination came through. But I don't think she's unqualified.
2. As for backing out of a fight, I'm more concerned with winning a victory than having a fight. If W can put reliable social conservative on the Supreme Court without a bloodbath, good work. Alas, it looks like there is a fight...principally with W's right wing.

At Sunday, 16 October, 2005, Anonymous Anonymous said...

O'Connor, of course, struck down the Texas sodomy law as Supreme Court justice. Miers was one of the supporters of that law. It is not likely that Miers would have supported it if she agreed with O'Connor that it was contrary to the constitution.

She's Harriet Miers, not Don Quixote. The Supreme Court, including O'Connor, said that sodomy laws were constitutional in Bowers in 1986. I doubt she gave the constitutionality of sodomy laws a whole lotta thought beyond reading about Bowers in the newspapers and maybe skimming the decision. I doubt she was of the opinion that the Court was clearly wrong, but I also doubt that she made a heavy study of the issue before saying "No" when saying "Yes" would have alienated social conservatives. It gives no more evidence of how she will rule on gay rights today than O'Connor's vote in Bowers gave as to how she would vote in Lawrence (and her concurrence laid the ground for gay marriage much moreso than the majority opinion: it would be extremely hard to pull gay marriage out of the right to privacy, but much easier from an expansive reading of Equal Protection).


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