Thursday, October 27, 2005

The top questions on Miss Miers: answers for Hugh Hewitt

Hugh Hewitt asks the critical questions about Miss Miers.

Does George W. Bush deserve any loyalty from his party? From pundits identified with his party? If so, how much and why not more? Yes, W deserves loyalty from his party. Conservatives, of all people, should appreciate that loyalty is a virtue. And this includes pundits who think of themselves as Republican. How much loyalty? Well, here would be the limit: if a president breaks a clear promise, he can't be surprised if people rebel. I don't believe that the president has tried to do anything except keep his promises with Harriet Miers; but it is possible that HM will prove not to be a judge in the mold of Scalia/Thomas, and if that proves to be the case, his party is free to point out the error in a civil fashion.

Do Harriett Miers' many accomplishments count for nothing? They count for a good deal, and the probability is that she will be deemed qualified by the ABA as a result.

Does Harriett Miers strike the commentator as a dedicated public servant? Yes.

Why not wait for the hearings to at least begin? Some pre-hearing questioning is appropriate. If she turns out to be a mistake, the hearings may be too late to effect her withdrawal or defeat.

How important is it that Roe v. Wade/Casey be reversed? Opposition to Roe/Casey and a willingness to reverse are the sine qua non of a good nomination. 1) Roe itself is one of the most tragic miscarriages of justice in the history of the Supreme Court. 2) A willingness to reverse Roe is a touchstone of true originalism. 3) A nominee who lacks the willingness to reverse Roe is not going to be likely to reverse the lesser outrages of the last generation.

Which five precedents does the commentator think are in most pressing need of reversal? 1. Roe v Wade (abortion). 2. Lawrence v Texas (gay marriage). 3. ACLU v Reno (internet pornography). 4. Santa Fe v. Doe (school prayer). 5. McCreary County v ACLU (ten commandments).

Does the commentator agree with George Will's assertion of Justice Lewis Powell as the "embodiment of mainstream conservative jurisprudence?" No. It's difficult to rank Powell as a conservative at all. The honour should probably have gone to Rehnquist.

Is a neo-Borking underway which will discredit the conservative cause's defense of its future nominees against similar, future attacks from the left? No: some of the criticisms, both of the president and Miss Miers, have been excessive and unrestrained. But in general, the GOP has been too deferential to presidential selections to the Supreme Court, and too willing to trust the president when bad selections have been sent to the Senate (O'Connor, Kennedy, and Souter). A more critical view of White House nominees would in general be constructive.

What are the political consequences of a defeat of Miers at the hands of a GOP controlled Senate? Right now, very small, and probably less dangerous than confirmation. Even if Miss Miers is a good pick (which has been my view), she is not perceived as such by the party: indeed, she is seen as betrayal on the magnitude of Bush 41's broken promise, "Read my lips: no new taxes." From a strictly political view, W would do well to withdraw her, and replace her with a pick who both in substance and in appearance is a more reliable conservative; the next nominee must be clearly on-record as opposed to Roe and Lawrence.

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