Monday, October 31, 2005

"It's Scalito...get me another drink"

Drudge's photographers snap liberal NY Times columnist Maureen Dowd as she hears the news about Scalito.

They're looking for a caption.

My favorite: if you want to keep the beer cold, put it next to my heart.

We trust Miss Dowd has a sense of humor about these things, and if she moved next to us on a barstool, we'd be happy to buy her a drink.

We just won't buy her columns at the NY Times--at least not as long as they're selling for 50 bucks a year.

Poor Miss Dowd: she's sitting at a barstool, looking for a successful Catholic man in his fifties with an interest in politics....but Samuel Alito's already taken. :)

But Miss Dowd? We're sure you can solve your problems at :)

W's Trick or Treat: Libby goes down, W's polls go up

For somebody, this is going to be a really bad Halloween.

W was supposed to be on the ropes. The NY Times was declaring last week to be the worst week of his presidency. The press expected W to be battered by the indictment of Karl Rove. Scooter Libby got hit instead, and the natural conclusion would be that W's popularity would take a hit as well.

But, but....

Rasmussen has the stats:
Fri 28 October: 40%
Sat 29 October: 42
Sun 30 October: 43
Mon 31 October: 45

W's approval rating goes up 5 points instead. Perhaps the public took the indictment of Libby as indication that Rove and the others were probably in the clear. In any case, having made what looks like a politically very successful appointment in Judge Alito, W starts off the new week on the comeback trail...

Alito to the Supreme Court

News reports confirm what White House sources had indicated since Friday: Samuel Alito will be President Bush's next nominee to the Supreme Court.

Determined to avoid being ambushed again by negative reactions, the White House carefully orchestrated a series of trial balloons to make sure that Alito was acceptable to the GOP base.

On Friday, White House sources let bloggers at ConfirmThem know that Alito along with Michael Luttig was the leading choice for the next nominee for the Supreme Court. The ConfirmThem website had been ground zero for the uprising against previous court pick Harriet Miers, but over the weekend the reaction to Samuel Alito was strongly positive among the GOP's activist base.

Although some were concerned about Alito's lack of express commitment to a Scalia-style philosophy of original intent, most were won over by his excellent credentials and strong conservative track record.

An intense debate took place over whether Alito would be likely to overturn Roe v Wade. Although Alito has never openly criticized Roe, he wrote a key dissent in the 1992 Casey decision on abortion. In his dissent, he indicated support for a rational basis test for abortion rulings as opposed to the undue burden test ultimately adopted by the Supreme Court; the rational basis test would make it much easier for the states to regulate abortion, and would seriously undermine Roe v Wade without actually reversing it.

Samuel Alito is 55. Senator Arlen Specter is said to support him and be a key ally. Alito has a BA from Princeton, a JD from Yale, worked for the Reagan Justice Department, and is on the short list of Robert Bork.

Late last night, Senator Harry Reid raised the possibility of a filibuster if Alito were chosen.

Your reaction to Samuel Alito for the Supreme Court
An excellent choice: I'll fight for him
An acceptable choice: but I won't fight for him
Not a good choice: but I won't fight against him
A very poor choice: I'll fight against him

Free polls from

Aristotle and the plague of promiscuity

IrishLaw--a great new blog discovery--has an excellent post on a recent medical journal article.

The key figures are that sexually transmitted diseases caused about 30,000 deaths in 1998. Cases of infertility caused by STDs ran 600,000 per year. And the current estimate is that half of young people will contract an STD by the age of 25.

Number of deaths in 2004--and the cause

1.3 million--US abortion deaths in 2004 (est)
700,000--US heart disease deaths
560,000--US cancer deaths
107,000--US deaths in accidents
30,000--US suicides
30,000--US deaths from STDs (including AIDS/1998)
27-30,000--Iraqi civilian deaths (estimated since 2003)
20,000-US homicides
14,000--US AIDS/HIV deaths
2,016--US military deaths in Iraq since the beginning of the war
59--death penalty executions in the US 2004

So sexually transmitted diseases killed 10 times more Americans in a single year than have died in Iraq.

It's not unreasonable to think that Roe v Wade has played a key role in changing American sexual habits. If abortion is always available as a fallback, couples need be less careful about their behaviour. The statistics indicate the history:

Previous abortion: 1975: 18% yes. 2000: 45% yes.
Illegitimacy rate: 1975: 24.5%. 2000: 44%

Abortion is fundamentally a means of birth control for the irresponsible: 45% of those who had abortions in the year 200 had previously had one or more abortions. Abortion has encouraged the irresponsibility that leads to out of wedlock births: since abortion was legalized in 1973, illegitimacy instead of dropping has sky rocketed.

Altogether, these statistics give us the basic bad news. Abortion is the leading cause of death in America--the key target in building a pro-life civilization, the deaths from this cause dwarfing suicide, homicide, AIDS, the war in Iraq or the death penalty.

Something to think about as we contemplate the next justice for the Supreme Court...

W to announce new Supreme Court justice Monday morning

CNN (11.16pm EST) confirms that the president will announce his pick tomorrow.

Presumably, this is Alito or Luttig.

CNN adds an interesting poll figure:

“Sixteen percent said it is essential that the nominee would vote to overturn the 1973 Roe v. Wade decision legalizing abortion, and another 16 percent said it is a good idea.

But 42 percent said a nominee who opposes Roe v. Wade would be a bad idea.”

16+16=32% want W to name someone who will reverse Roe. Since W carried 51%, this means about 60% of those who voted for W want a nominee to reverse Roe.

16% think it’s “essential”. What percentage of GOP primary voters think this is essential? Must be a lot…

Sunday, October 30, 2005

Last Two Standing: Sunday White House Trial Balloon: Alito or Luttig

The White House is clearly concerned about yet another Harriet Miers-style knifing. The information coming out of the classic unnamed "White House sources" has been reasonably consistent, although the variants have shifted somewhat from day to day. The key thing is that the White House wants to make sure that the next nominee does not get ambushed on the same day is announced. So the leaks are deliberate, calculated, orchestrated.

And it means the White House is watching the public reactions.

As we head into Sunday, the White House has narrowed its search to either Samuel Alito or J. Michael Luttig. This is according to Jan Greenburg of the Chicago Tribune, one of the very few reporters who identified Harriet Miers as part of the shortlist that led to her selection. The question now is what the public reaction will be.

ConfirmThem--whose bloggers led the attack on Miers--has been debating both judges extensively since White House staffers began spreading the word Friday morning that it would probably be either Luttig or Alito.

Key summaries from the current debates:

A few bloggers are hostile and suspicious of both. Neither has ever formally endorsed originalism. Neither is on-record for advocating roll-backs of existing precedents. Neither has given any clear or obvious critique of landmark outrages against an originalist understanding of the Constitution, such as Roe v Wade or Lawrence v Texas. The majority of bloggers would seem to prefer the president's short list to be headed by either Janice Roberts Brown or Edith Jones.

Nonetheless, the majority seem quite favorably disposed toward both. It is not completely clear which of the two is the favorite. Bloggers like the fact that Luttig is better known in conservative circles; is prominent in the Federalist Society; and is said to have the support of John Roberts, Clarence Thomas, and Antonin Scalia--all of whom are close to him personally. Some worry that Luttig is too wedded to the principle of stare decisis.

But Alito has some vigorous advocates: "[Alito] will be more likely to overturn existing precedent or change the *basis* of the central holding of the case so as to nullify its effects...His intellect exceeds that of Luttig, most observers will conclude on close inspection. He makes less noise, but the superiority is undoubted."

So our Sunday White House Trial Balloon Poll:

Your choice for the Supreme Court
Both Alito and Luttig are excellent
Alito is the man
Luttig is the man
A plague on both their houses!

Free polls from

Saturday, October 29, 2005

Saturday White House Trial Balloon: Alito, Jones or Luttig?

Here is the latest from the source code-named Populist:

As of today my sources are saying that there are four names that have received serious attention since the Miers departure on Thursday. Alito, Luttig, Priscilla Owen, and Edith Jones. For whatever reason, my sources feel that Karen Williams is no longer under serious consideration.

I’m also hearing that the conventional wisdom that the nominee will most likely be a man is not accurate. I’ve been told that the White House is still concerned about replacing O’Connor with a woman if a confirmable woman is available that can withstand the tremendous pressure the hearings will cause. Of the many available women, as of today my sources feel Jones and Owen were the finalists among that pool to go along with Alito and Luttig. But my sources also feel that if Bush goes with a woman Edith Jones is much more likely to get the nomination than Owen.

So based on what my sources are suggesting, the list looks like Alito, Edith Jones, or Mike Luttig as serious contenders as of today. Apparently Luttig is getting many endorsements from establishment conservatives, as if Edith Jones. My sources feel that the final pick will come down to how Bush interacts with each candidate, but they feel Alito probably has a small advantage because of his more “personable” demeanor.

So with this, we now post our Saturday trial balloon poll:

Saturday White House trial balloon: Alito, Jones, or Luttig for Supreme Court
Samuel Alito
Edith Jones
Michael Luttig
Free polls from

The White House trial balloon: Alito, Luttig or Cox?

White House sources have been sending the names of Judges Samuel Alito and Michael Luttig to ConfirmThem as the president's shortlist for the Supreme Court. Intense discussion continues over Chris Cox, now head of SEC.

What's going on is very clear. The White House is sending up a clear trial balloon, endeavoring to avoid the mishap of the previous nomination. The White House does not want to get blind-sided twice in a row (Roe?).

So I've posted a poll to see whom bloggers would tell the White House to pick. Although the trial balloon from the White House seems to focus on Alito/Luttig, it seemed good to see how many bloggers preferred Cox to either of them. I've given brief descriptions; much fuller data can be found at ConfirmThem.

1. Samuel Alito is 55. He is best known for his dissent in Casey--nonetheless, White House sources deem him unlikely to reverse Roe. Some bloggers think Casey proves otherwise. Senator Arlen Specter is said to support him and be a key ally. Alito has a BA from Princeton, a JD from Yale, worked for the Reagan Justice Department, and is on the short list of Robert Bork.

2. J. Michael Luttig is 51. He has a BA from Washington and Lee, a JD from University of Virginia. He clerked for Scalia duing Scalia's time on the Court of Appeals, then clerked for Warren Burger, and finally worked for the Bush 41 Justice Department. He is said to be personally close to both Scalia and Thomas; he is also on Robert Bork's short list.

3. Chris Cox is 53. He holds a BA from USC, and a JD and an MBA from Harvard. He served for two years as associate counsel to President Reagan involved with selecting federal court judges. Then he served 17 years as a US Congreessman and compiled a 100% pro-life voting record. He has been vigorously promoted for the Supreme Court at the National Review. He is currently head of the SEC.

White House trial balloon: Luttig, Alito or Cox?
J. Michael Luttig for Supreme Court
Samuel Alito for Supreme Court
Chris Cox for Supreme Court
Free polls from

Friday, October 28, 2005

The Next Nominee...

May have already been chosen. Various rumors suggest we get an announcement today. But it's important to be clear about the principles involved in this choice.

1. The nominee should have impeccable conservative/originalist credentials. There should be no doubt about the nominee’s conservativism. This means NO as in NO stealth candidates: eg, Maureen Mahoney or Callahan. (The Corner notes reports that are currently circulating that Mahoney is pro-Roe.)

2. The nominee should be on record as a critic of several of the cases listed below—with opposition to Roe as the sine qua non of an acceptable nominee:
2.1. Roe v Wade (abortion).
2. 2. Lawrence v Texas (gay marriage).
2.3. ACLU v Reno (internet pornography).
2.4. Santa Fe v. Doe (school prayer).
2.5. McCreary County v ACLU (ten commandments).

3. Good nominees would include: Emilio Garza, Michael McConnell, Edith Jones, Chris Cox, and William Pryor.

MEANWHILE: the rumor mill...
"Sources say that Judge Priscilla Owen of the 5th circuit, Judge Michael McConnell of the , J. Harvie Wilkinson of the 4th circuit, Judge Edith Jones of the 5th circuit and Judge Edith Clement of the 5th circuit and Judge Karen Williams of the 4th circuit had interviews with Bush.”

Bush won’t pick anybody he hasn’t interviewed. And if he interviewed them, it means they’ve also been vetted.

What should the president do with these candidates?

Edith Jones: Yes—see the links at ConfirmThem.
McConnell: Cautious yes—He’s academia’s leading critic of Roe v. Wade, and strong on Religion in the First Amendment. He’s no liberal: any conservative who can resist the pressure of academia will likely resist the pressure of SCOTUS; cf. Scalia.
Williams: NO—with her Democratic husband she’s an excellent bet to come to DC and lose both her principles and her accent.
Owen: NO—reported here at ConfirmThem to be pro-Roe; her sympathy for parental notification does not change this. And she’s vulnerable to the Bush crony charge.
Edith Clement Brown: NO—see her answer to Senator Kennedy below.
Wilkinson: NO: he was Powell’s clerk on SCOTUS when Powell voted for Roe, and he regards Powell as his hero. NO WAY.

Edith Brown Clement: answer to Senator Kennedy’s question of 2001:
Question 2C: Do you believe the constitutional right to privacyencompasses a woman’s right to have an abortion?
Answer: The Supreme Court has clearly held that the right toprivacy guaranteed by the Constitution includes the right to have anabortion. The cases handed down by the Supreme Court on the right toabortion have reaffirmed and redefined this right, and the law issettled in that regard. If confirmed, I will faithfully apply SupremeCourt precedent.

GRENFELLHUNT: That’s not good enough.

Thursday, October 27, 2005

"It was a good fight, ma, but he won!": the GOP after Miers

Many of us have vivid recollections of 1976...

Ronald Reagan fought sitting president Gerald Ford for the GOP nomination, and came within an ace of beating him. At the convention, Reagan was forced to face a narrow defeat. He came out for a major press conference, flash bulbs bursting all around, cocked his head and threw out a trademark Reagan grin and said: "Well, it was a good fight, ma, but he won!" The press and the room broke in laughs and applause. Reagan not only had principles, he had class.

First off, congratulations to the anti-Miers team. They fought with energy and gusto, and they fought for conservative principles. They fought to convince the president to change course, and succeeded--the number of times in which that has happened can be counted on one hand.

Second, kudos to Hugh Hewitt. Hugh was badly outnumbered on this, but he fought with courage, tenacity, intelligence and determination--if you're in a fight, this is the man you want in your corner.

Finally, kudos to Harriet Miers who has conducted herself with grace and class throughout the whole process. She is an intelligent and capable woman who has served both the White House and the country well.

So where do we go from here?

I fought for Miers ever since she was nominated, but I don't think this fight has necessarily harmed either the party or the president or the country. On the contrary, conservatives have now shown that presidents MUST nominate for the Supreme Court ONLY candidates with UNDOUBTED conservative credentials. If they don't, they risk a major fight. This battle has the potential to reinvigorate conservatives and to put new steel into the determination to re-make the Supreme Court. This fight can prove to be the anti-Bork, an opportunity for the GOP to show a renewed dedication to Constitutional principle.

It is noteworthy too that the Miers nomination collapsed shortly after publication of a speech of hers that SEEMED to indicate that she supported Roe. There can be no mistakes like this again: GOP presidents need to nominate judges whose anti-Roe credentials are beyond question. They cannot afford to shy away from this principle in the face of opposition from pro-choice Republicans. Republicans have operated on a big tent theory and rightly so, but here there must be limits: even those Republicans who support choice have a moral responsibility to recognize that Roe is contrary to the Constitution. Pro-choice Republicans are duty-bound to the Constitution, and even if they think the states should legalize abortion, they have an obligation to recognize that Roe was a constitutional travesty. Pro-choice Republicans have a responsibility to support anti-Roe nominees for the Supreme Court, and not confuse their own personal views about abortion with their duty to the Constitution.

Fortunately, the GOP has quality talent that has recognized the wounds that Roe and other decisions have inflicted on the Constitution.

High on the short list should be: Emilio Garza, Michael McConnell, and Edith Jones.

Any one of these would unite the party and unite America behind an outstanding nominee for the Supreme Court.

POSTSCRIPT: Dahlia Lithwick has an excellent post on why GOP presidents can no longer speak in code on Roe: they must nominate candidates who are on-record against Roe v Wade.

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.

Wednesday, October 26, 2005

Miss Miers on religion and law: the 1993 speech

Every good Christian ought to be more ready to give a favorable interpretation to another's statement than to condemn it. But if he cannot do so, let him ask how the other understands it. And if the latter understands it badly, let the former correct him with love. If that does not suffice, let the Christian try all suitable ways to bring the other to a correct interpretation so that he may be saved.
--Ignatius of Loyola (CCC 2478)

Late last night the news broke of a story in the Washington Post: in 1993, Harriet Miers had given a speech in which she apparently repudiated the pro-life views that she had endorsed in 1989. Whereas then she had told Texans for Life that she favored a Constitutional amendment banning abortion except where the life of the mother was at stake, now she apparently thought that abortion was a matter of "self-determination."

The Washington Post article as of late last night did not give the full speech, only snippets with no sense of context. I thought it the better part of wisdom to wait to make sense of the brief quotations until the full speech was available. Today the full speech is available, and I seek here to give it some reasonably full assessment.

Harriet Miers: her history on abortion
There is every reason to think that through much of her adult life Harriet Miers would have been classified as pro-choice. As late as 1987, Miers was a member of Girls Inc., a group that explicitly affirms Roe v. Wade. Although it is possible that Miers was either unaware or unsupportive of the position of Girls Inc, it is more likely that this reflected Miers' position as well. In 1988 she contributed to the campaign of Al Gore, who had then shifted from pro-life to pro-choice as part of his presidential campaign. (She seems, however, to have been dissatisfied with Michael Dukakis; she did not contribute to his fall presidential campaign, but gave money instead to the DNC.)

According to Texas Justice Nathan Hecht, toward the end of the 1980s Miers changed her position on abortion. After seeing a film on abortion at church, Miers for the first time believed that life began at conception. Although Hecht does not specify the content of the film, it appears to have included the scientific evidence for why life begins at conception.

In 1989, she ran for Dallas City Council. Long time feminist friend Louise Raggio reported that Miers now opposed Roe v. Wade, although Raggio was unclear as to whether Miers thought Roe should be reversed. Miers also sought the endorsement of Texans for Life, and endorsed a constitutional amendment to ban abortion with no exceptions for rape or incest, but only for the life of the mother. She agreed further to oppose the appointment of pro-choice officials in Dallas government, to support pro-life meetings and events, and to decline the endorsement of any pro-choice organization. Indeed, she refused even to meet with pro-choice Dallas groups. Once on Dallas City Council, she dismissed critics of Operation Rescue protests with the words: "Well, I'm sorry, it's murder and that's that."

Her pro-life conversion appears sharply in the public record. From 1992-93, she served as head of the Texas bar, and in that capacity she fought the new ABA rules supporting abortion--an apparent reflection of her new pro-life stance. Her political contributions also underwent a sharp shift from pro-choice to pro-life. Her 13 recorded political contributions after 1990 went only candidates with 100% pro-life ratings from either Texas or National Right to Life groups. The most striking was her contribution in 2000 to the Nebraska attorney general who defended the ban on partial birth abortion before the Supreme Court. When she moved Washington to work in the White House, she was identified by co-worker (and Harriet Miers' critic) David Frum as "pro-life".

The 1993 speech
In 1993 Miers gave a speech to the Executive Women of Dallas. The first ten pages or so of the 14 page speech focus to some degree on the issue of judicial activism. Without defending judicial activism, Miss Miers points out that in some cases the legislatures have deliberately provoked judicial action; that is, legislators, fearful of making controversial decisions, have sometimes deliberately not acted so that the responsiblity for controversial decisions could be borne instead by the courts. In such cases, Miss Miers indicates, the real responsibility for judicial activism lies more with the legislatures than with the courts.

The controversial aspects of the speech come in two paragraphs:

Where else do we hear a lot today about the Courts. The law and religion. A preacher in Dallas is challenged by suits charging that he is ripping off the helpless and defrauding them with prayer cloths, etc. Abortion clinic protestors have become synonymous with terrorists and the courts have been the refuge for the besieged. The Branch Davidian compound became a sight for speculation about legal responsibilities and legal rights. The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women's right to decide for herself whether she will have an abortion. Questions about what can be taught or done in public places or public schools are presented frequently to the courts.

The law and religion make for interesting mixture but the mixture tends to evoke the strongest of emotions. The underlying theme in most of these cases is the insistence of more self-determination. And the more I think about these issues, the more self-determination makes the most sense. Legislating religion or morality we gave up on a long time ago. Remembering that fact appears to offer the most effective solutions to these problems once the easier cases are disposed of. For example, if a preacher is committing a fraud and it can be shown, even if he is a preacher, he should be stopped. But if we just think people are ignorant or stupid for giving their money for a blessing, that is different matter. No one should not be able to oppressively require a student to participate in religious activities against their will, but if a student on his or her own chooses to express himself or herself in religious terms, that should not be prohibited. Where science determines the facts, the law can effectively govern. However, when science cannot determine the facts and decisions vary based upon religious belief, then government should not act. I do not mean to make very complex, emotional issues too simplistic. But some of these issues do not need to be as complicated as they have become if people deal with each other with respect and even reverence.
[Typos are reproduced from the original].

What does Miss Miers mean here about "self-determination"? And what light does it shed on her views about Roe?

A few observations.

1. The first paragraph and the second paragraph are asymmetrical: she deals with issues in the first paragraph that she does not address in the second, and vice versa.

2. She does not here address something that she personally took a strong stand on: namely, the defense of Operation Rescue. Abortion clinic protestors have become synonymous with terrorists and the courts have been the refuge for the besieged. If we only had this sentence from Miss Miers, we would never be able to guess that she strongly defended Operation Rescue while on Dallas City Council. Indeed, the terminology might reasonably suggest that she supports here the pro-choice side. Yet she does not do so. Rather, she limits herself to describing the conflict in terms that pro-choicers would identify with; and she moves on to other issues.

3. Although the possible reference to abortion has drawn much attention, Miss Miers is also apparently concerned with the teaching of scientific creationism in the public schools--a major in issue in Texas: Questions about what can be taught or done in public places or public schools are presented frequently to the courts.

4. Miss Miers writes: Where science determines the facts, the law can effectively govern. However, when science cannot determine the facts and decisions vary based upon religious belief, then government should not act. This has been assumed to be a discussion of the abortion issue. But it may well be a reference to the scientific creationism debate, and she may be encouraging the government not to mandate one scientific approach to the issue. This would be consistent with her focus on what can be done or taught in the schools in the immediately preceding sentences.

5. If Miss Miers does have the abortion controversy in mind, does this indicate that she thinks that the principle of "self-determination" coupled with the scientific evidence legitimizes legal abortion? a) This is certainly possible since this was exactly the logic of Roe v. Wade. "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." Miss Miers' answer can reasonably be taken as an explicit avowal of the logic of Roe v. Wade. b) But it is also possible that Miss Miers thinks that the scientific evidence supports the proposition that life begins at conception. This was Ronald Reagan's basis for opposing abortion, and it may well be Miss Miers' position. If Miss Miers thinks that the scientific evidence supports the pro-life position, then she may well be arguing that state governments can legally act to ban abortion. This would agree with her 1989 response to Texans for Life, as well as what might be inferred about how she came to hold pro-life views. This would also be in keeping with the view of Edith Jones in her famous opinion in McCorvey v Hill: "Hard and social science will of course progress even though the Supreme Court averts its eyes.... One may fervently hope that the Court will someday acknowledge such developments [in science] and reevaluate Roe...accordingly. That the Court's constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication."
c) There are some other possible interpretations of this paragraph, but the view expressed in a) would be the best interpretation of the passage as written, for this is the one most obviously in keeping with the emphasis on self-determination earlier in the paragraph. But a) is not a certain interpretation, since from the standpoint of a pro-lifer, abortion ends the unborn baby's right to self-determination.

7. We return then to the quotation from the beginning of this post: the need to listen patiently to the text and try to understand exactly what the writer meant. The most reasonable interpretation of the text is that it is an affirmation of the logic of Roe v. Wade--but it is possible that it has no bearing on abortion at all, or that it reflects the view that the scientific evidence requires the reversal of Roe v. Wade. This question cannot be decided with certainty from the text alone--it can only be decided by questioning the nominee.

Questions for Miss Miers
The president was elected on a promise to millions of Americans about our courts: to choose justices in the mold of Scalia and Thomas--both sharp critics of Roe v. Wade. For this reason, it is absolutely unacceptable for the president to nominate or the Senate to confirm a nominee whose speeches can reasonably be held to uphold Roe v. Wade. In the light of the 1993 speech, Miss Miers needs to explain her views on Roe and the history of those views. There has been a tendency of recent nominees to keep silent on Roe. But those who have written or spoken on these questions cannot claim a right to reticence appropriate for those who have not spoken on abortion. It is appropriate to ask Miss Miers questions, and these questions should include:

1. Did you support Roe v. Wade in 1987 when you were a member of Girls Inc? If not, why were you a member of group explicitly committed to Roe?
2. Is Louis Raggio correct when she says that in 1989 you rejected Roe v. Wade as part of your Dallas city council campaign? If she is wrong, then why did you seek the endorsement of Texans for Life, an anti-Roe organization?
3. At the time of your 1993 speech did you agree or disagree with Roe v. Wade? What was your 1993 reference to "self-determination" intended to indicate if not agreement with Roe v. Wade?
4. As of 2005, do you agree or disagree with Roe v. Wade? Have you had any other shifts in views on Roe v. Wade that are not currently a part of public record?

The virtue and the weakness of the internet is speed: a few bloggers have immediately assumed on the basis of the 1993 speech that Miss Miers is a stealth supporter of Roe, now on a glide path toward the Supreme Court. It would be better, and more in keeping with the views of charity expressed by St Ignatius of Loyola, to question Miss Miers specifically as to what her 1993 speech meant. And it would be constructive for future nominees to give us upfront their views on that case.

Postscript: many of us will remember the 1976 flap over Jimmy Carter's "ethnic purity" remark. Carter ran as a Southern progressive who said that the Civil Rights Act had been the best thing to happen to the South in his lifetime. His "ethnic purity" comments were seized upon by the press as proof that he was a closet racist, and only the staunch support of Daddy King bailed Carter out of his difficulties. As Carter's subsequent career showed, he was no racist of any kind, and his real problem was an excessive liberalism. The flap over Miss Miers' speech may well prove to be dispute of the "ethnic purity" type; a quick misreading both of a speech and of a woman's character.

Catechism of the Catholic Church: Offenses against the Truth
2477 Respect for the reputation of persons forbids every attitude and word likely to cause them unjust injury. He becomes guilty:
- of rash judgment who, even tacitly, assumes as true, without sufficient foundation, the moral fault of a neighbor;
- of detraction who, without objectively valid reason, discloses another's faults and failings to persons who did not know them;
- of calumny who, by remarks contrary to the truth, harms the reputation of others and gives occasion for false judgments concerning them.

2478 To avoid rash judgment, everyone should be careful to interpret insofar as possible his neighbor's thoughts, words, and deeds in a favorable way:
Every good Christian ought to be more ready to give a favorable interpretation to another's statement than to condemn it. But if he cannot do so, let him ask how the other understands it. And if the latter understands it badly, let the former correct him with love. If that does not suffice, let the Christian try all suitable ways to bring the other to a correct interpretation so that he may be saved.
--Ignatius of Loyola (CCC 2478)

For key links, see:

Tuesday, October 25, 2005

Why politics matters with judges...

In discussing judges one is frequently told that political views are different from judicial views, that political philosophy is often different from judicial philosophy.

As an abstract point, this might be correct. But in practice, there is very good reason to believe that most judicial reasoning is little more than a legal rationalization of political prejudice.

There is now a fascinating support for this proposition posted over at the Volokh Conspiracy. A new article by Ward Farnsworth. Farnsworth looks at Supreme Court cases over the last 50 years and finds that the correlation between political ideology and decision-making runs about 95%.

Finally, there is a book-length study on this very point from Cambridge University Press: The Supreme Court and the Attitudinal Model Revisited, rightly arguing the depressing propostion that most judicial decision making is simply political policy-making under another name.

How to be wrong twice: the dangers of trading Miss Miers

The great baseball writer Bill James once remarked that after he'd evaluated a trade in baseball in print, he never changed his mind about it--even if the trade didn't work out the way he thought. Why? Because changing your mind in print only gave you the opportunity to be wrong twice.

President Bush yesterday side-stepped a question over whether the White House was considering withdrawing Miss Miers. The result was a new surge of speculation over replacement candidates for Miss Miers.

Now even if you think that Miss Miers deserves to be confirmed for SCOTUS--as I do--it's still clear that she has been a political mistake for the President. But trading her for another candidate gives the White House an excellent chance to double the damage politically, and dig themselves into a deeper hole than they are right now. It also gives them a chance to move from a candidate that W knows perfectly to a real unknown who might do serious damage on SCOTUS.

Let's take a look at some candidates to see how they could damage both the White House and the country. And let's compare them for a moment to Miss Miers.

We can start with three things we know, or at least have good reason to believe, about Harriet Miers:

1. Miss Miers almost certainly opposes Roe v. Wade: Louise Raggio has stated explicitly that Miss Miers opposed Roe v. Wade in 1989, and Miers' endorsement of a constitutional amendment to ban abortion agrees with that. Neither Rehnquist nor Scalia nor Thomas nor Kennedy nor Souter nor O'Connor has ever shown such opposition to abortion.
2. Miss Miers almost certainly opposes Lawrence v. Texas: Miss Miers publicly supported the Texas sodomy law that O'Connor, et al struck down. As a lawyer, she could scarcely have done that if she thought it was unconstitutional.
3. Miss Miers is an originalist: she is attested as such by Ken Star, Leonard Leo, and others; and her Senate questionnaire is strongly originalist in content.

So why trade her? And for whom? The standard short-lists are crammed with candidates all more risky than Miers, either because they have no anti-Roe credentials, no anti-Lawrence credentials, or no evidence of an originalist philosophy of law. Others are risky because as out-of-town candidates they have all the hallmarks of a Souter or Kennedy or O'Connor: conservatives who came to DC and then went liberal.

1. Attorny General Gonzales. This apparently pro-Roe nominee is high on the Bush shortlist and would probably end the Bush presidency, or at least leave him without any friends besides Karl Rove and Laura.
2. Maureen Mahoney. A highly qualified lawyer and a stealth candidate. She's been suggested by the Washington Post and for good reason: the word on the web is that she is both pro-Roe and anti-originalism.
3. Karen Williams. A South Carolina appellate court justice with a Democratic husband--as an out-of-towner, she is an excellent candidate to be converted to liberalism on the Georgetown cocktail circuit. Her conservativism likely won't last two years in DC.
4. Janice Roberts Brown. An outspoken conservative, often thought to have libertarian leanings--yet she has apparently never criticized Roe or Lawrence. She will be filibustered; her California conservativism could easily come across as too extreme and backfire in the hearings with calamitious results in 2006 for the GOP.
5. Michael McConnell. A brilliant conservative, and I've suggested him on my blog: he is on-record opposing Roe. But politically, he'll be denounced for his support for Bob Jones. And he has odd views on polygamy. In all, he is a more brilliant conservative than Miers, but a less reliable one; if the Dems decide to bork him, he risks reversing the 2004 GOP gains with blacks and Hispanics.
6. Michael Luttig. He's never criticized Roe or Lawrence, and shows little interest in reversing mistaken precedents. The most likely guess is that he would be an originalist on new cases, but uphold bad precedents stare decisis.
7. Emilio Garza. He's definitely anti-Roe, and the one candidate on the list who is a definite improvement over Miers, both politically and substantively. Unfortunately, the White House has never shown any interest in him, and the chances of him getting the pick are apparently virtually zero.
8. Edith Jones. Most famous for her opinion in McCorvey v Hill, where she criticizes Roe--but less sharply than Sandra O'Connor did in the 1980s, and O'Connor later upheld Roe in the Casey decision.
9. Miguel Estrada. The ultimate stealth candidate. A reputation for being very conservative, and not a line on-record to prove it. In contrast to Miers' extensive anti-abortion and anti-sodomy track record, Estrada offers zilch.
10. Connie Callahan. A Hispanic nominee, said to be Bush's second choice after Miers; weak on religious liberty issues and almost certainly pro-Roe.

The above list is not exhaustive but it is instructive--there are very view nominees out there with a stronger, more solid, or more reliable conservative record than Miers. Of the ten listed above, I would rate 1 better (Garza), one about equal (McConnell), and eight worse. Trading Miers offers a VERY high risk that we will get a nominee less conservative, and less reliable than Miers.

As Bill James would have put it: you wanna trade Miers? it's an opportunity to be wrong twice.

Sunday, October 23, 2005

Arlen Specter on Harriet Miers

Senator Specter remarks:

"I don't think she's going to be withdrawn."

"During the recess, I took home a large compendium of cases that she'd been involved in and I studied them, and I found out they were very complex," he says. "She had an underground easement case which was very complicated, she represented Disney in a jurisdiction issue in Texas, she represented Microsoft in a patent case. She represented a woman, pro bono, on Social Security [and] a criminal defendant in a habeas corpus case. And I could see as I went through her legal record that she's a good lawyer. She deals with complex, conceptual issues and, I think, demonstrates the capacity to handle a wide variety of issues, including constitutional issues."

(HT: Forest Nymph)

"100% innocent!": Syria and OJ Simpson

100% not guilty! said OJ Simpson after being arrested for the savage murder of his wife.

"We are 100% innocent!" said Syrian dictator Bashar Assad after being accused of assassination by the UN.

The New York Times lays out the plot by which the Syrian dictator Assad masterminded the assassination of Lebanese prime minister Rafik Hariri.

The assassination of Hariri in February of 2005 sent shock waves through the region. Emboldened by democratic elections in Iraq, the people of Lebanon identified Syria as the culprit, and demanded the immediate withdrawal of the Syrians from their country.

The Syrian government began to tremble. For the strategy in going to war with Iraq in the spring of 2003 was not merely bring down Saddam Hussein. The strategy was to lay the foundation for democratic revolutions throughout the Middle East. No one feared that strategy more than dictator Assad of Syria, whose Baathist party was Saddam Hussein's closest ally.

Since the invasion of Iraq, Syria has played a double game, outwardly professing cooperation with the West while secretly allowing Syria to be a basing ground for the terrorists in Iraq. The administration has been slow to confront the Syrians with anything except diplomatic protests and polite requests for more help.

Now the UN's official report, accusing the Syrians of assassination has dealt a further blow the Syrian dictator. Syrian dissident Ammar Abdulhamid reports: "the Syrian regime has been on the verge of implosion for quite a while now, and it appears that many people are now taking notice of that."

The Syrians have been threatening Abdulhamid and other dissidents for months:

So, “do you want to be a hero, Ammar?” He asked. Why, “do you want to make me into one, General?”

Blogroll this brave man now.

Professor Josh Landis over at Syria Comment argues that the US is committed to a policy of regime change. If so, action on that policy is long overdue.

President Bush in his heroic inaugural address of January 2005 pledged this country to a forward strategy of democratization and freedom. In Syria, the time to act is now.

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.

Thursday, October 20, 2005

Why Miers is more of an originalist than John Roberts

This exchange over at Polipundit was so good, it deserves a post over here:

Roberts on judicial activism. (Key excerpt posted toward the bottom).
Miers on judicial activism. (long: scroll down).

OK, Rory, I’ve read it (the long version). I’ll tell you why I think Miers’ response is BETTER.

1) Her repeated emphasis on rulings based on, and the importance of, the actual words. This is originalism. This is what we need. Roberts did not say anything like that.

“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.”

2) Her emphasis on not deciding anything more than you are required to by the case before the court. Roberts didn’t emphasize that in the same way.

“An additional element of judicial restraint is to be sure only to decide the case before the court, and not to reach out to decide unnecessary questions. The courts have the essential role of acting as the final arbiter of constitutional meaning, including drawing the appropriate lines between the competing branches of government. But that role is limited to circumstances in which the resolution of a contested case or controversy requires the courts to act. ”

3) She has a good discussion on precedent, stare decisis, etc. She specifically says that precedent can be overturned, and gives some principles in regard to this. Leahy and Specter are insulted because she says precedent can be overturned, and Roberts didn’t in his statement.

4) Roberts’ statement re: collegiality on judicial restraint leaves one with the impression he could be vulnerable to drift, being influenced by liberals on the court. She has no such statement. I don’t find a discussion of collegiality in this context to be a strong indicator of judicial restraint, it seems on the other hand to be dangerous.

5) She specifically talks about the rule of law vs. the rule of man in regard to judicial activism. Roberts did not.

Does that mean I think she will be a better justice than Roberts? Of course not, I could have no way of knowing. But based on these two statements on judicial activism (I didn’t read everything else on Roberts), I far prefer hers.

Comment by Anony-moos 10/20/2005 - 11:30 am


In response to:

1) I believe Roberts implies his belief in the words and original intentions of the constitution, but it is true, he does not address it directly. A reason for this may be consideration of the Judiciary committee, since he was at this time, I believe, still nominated for O’Connor’s spot, and had been held up by like idiots when nominated in the past. He may have been trying to avoid riling feathers.

2) Her response on this topic is better than Roberts’.

3) To be fair, Roberts didn’t say precedent could not be overturned, either. He merely said that a good Judge is obligated to take into consideration the decisions of Judge’s past, who deserve the same respect for their service that the current Judge looking back at the decision deserves for his own. If, however, after one examining this precedent concludes it was an unconstitutional one (think: Roe v. Wade), given his other paragraphs in the Judicial Activism portion of the questionnare, he believes it is clearly the responsibility of the Judiciary to overturn that precedent. He does not need to say it outright.

4) On this point specifically, I like Roberts’ answer more than Miers’. I don’t interpret his belief in collegiality to mean that he is likely to drift on the Court. It means that he is not going to be reading over an opinion of Ginsberg’s with a smirk on his face, thinking “wow, what a twit.” He is going to give her opinion the attention that it deserves, take it into account (because those that serve as Judges are clearly brilliant individuals, and deserving their opinions to be given proper consideration), and attempt to strive for some kind of clearly majority decision.

It does not mean that he is going to resign his differing opinion for the sake of giving a majority decision. It means that his aim is to debate with the other Judges, and likely through Socratic method, chizel out the flaws in the arguments of both sides. And, he says, one of the most important responsibilities of a Judge is simply to recognize where your original bias may be wrong, and be open to correcting it. There is nothing wrong with this belief.

5) Again, Roberts does speak to the issue of rule of law, but he considers it so obvious and common sensical that he does not need to elaborate. He merely states: “[Judges] do not have a commission to solve society’s problems, as they see them, but simply to decide the cases before them according to the rule of law,” as if it would be absurd to think otherwise, and does not require any depth to prove.

Miers’ responses are clearly more readily understandable to we common men, but my preference for a Judge on the Supreme Court just is not common men.

Comment by Rory Vincent 10/20/2005 - 12:05 pm

Thanks, Rory, interesting comments. So to sum up:
1) Her statement is stronger, but you understand why Roberts wasn’t so explicit? I would agree. I would also say that she needs to be stronger because of the lack of a paper trail. But on the statement itself, we like hers better on this point, correct?
2) We agree, her response is better.
3) Again, she says outright what Roberts did not and did not need to. Her statement is stronger, but we don’t criticize Roberts for not saying it. Agreed?
4) We disagree on this one. I see your point and have no problem with the statement. I just don’t like it in a statement on “judicial activism", when we know he’ll be working with activists. In any event, Miers no doubt had his statement and intentionally chose not to include a similar statement on collegiality. To me, that is reassuring rather than a negative.
5) Again, Miers makes explicit what Roberts did not. We would agree that this does not make Roberts’ statement a weak one. Would you agree that it makes Miers’ stronger?

I read it and say Miers was much more explicit on things that could trigger D opposition than Roberts was. And she laid it out so that even D senators could understand it, and also so that the man in the street could understand what the fight is about.

I had not realized how much farther than Roberts she has gone. She was very specific on some things.

I think they are trying to trigger a filibuster fight, and this is the first salvo. The Ds will filibuster a nominee that they recommended.

Comment by Anony-moos 10/20/2005 - 12:19 pm


1) Yes, I would have preferred Roberts to go more in-depth into the originalist views of the U.S. Constitution, which I think Miers takes a shot at by detailing the key ‘the words’ play in Judgeship.
2) Indeed.
3) Correct. Miers has different considerations in her answers, and she is detailing things for different reasons—things Roberts didn’t especially need to delve into.
4) I didn’t take Roberts’ perspective to mean that he was saying we should work with Judicial Activists, but now that you bring it to my attention, if that was what he meant, that is very disturbing. His opinion of collegiality, I adore. I took it to mean through collegiality and conversation, activism could be weeded out by clearly defining the flaws in the Activist’s reasoning. I would hope, however, that he recognizes some activist Judges are just beyond reason.
5) It does make Miers statement stronger, but I don’t think necessarily any better or worse. They’re playing up different strategies.

It is an interesting thought that she may have expressed these ideas so clearly that she is encouraging a (D) filibuster. But do you think that, in the end, the Democrats will be able to twist the general headline from “a nominee that they recommended” to “a nominee Republicans and Democrats both came to recognize as unqualified"?

They are awfully good at twisting facts.

Comment by Rory Vincent 10/20/2005 - 12:33 pm

Wednesday, October 19, 2005

The Weekly Standard on HM's opposition to Roe v Wade

Terry Eastland of the Weeky Standard weighs in on Harriet Miers' record on Roe. Eastland rightly realizes the questionnaire makes it highly unlikely that Miers has any sympathy for Roe v. Wade. But he leaves out an important part of Miers’ record.

In 1987 HM was associated with Girls Inc; a Dallas group that officially supports Roe v Wade. While it is possible that HM was unaware or unsupportive of Girls Inc’s position, it is much more probable that in 1987 she supported Roe v Wade.

Texas Justice Nathan Hecht has recounted the story of HM's conversion to the view that life begins at conception in the late 1980s. This story has received new documentation from the news that HM supported a Human Life Amendment in 1989. The questionnaire from Texans for Life does not directly address the specific question of Roe v. Wade. Consequently, it is possible in principle that HM converted to the view that a Human Life Amendment was appropriate, but did not change her view that Roe was correctly decided.

Three things, however, make this unlikely. One is simply the rarity of this position anywhere in the political spectrum. There are numerous people who think that abortion is morally wrong, and yet support Roe: Kennedy, Souter, and O’Connor seem to fall into this class. But I have never personally met anyone or read the writings of anyone who supports a ConAmendment to ban abortion who doesn’t also think that Roe was wrongly decided. Every individual who supports a ConAmendment to ban abortion seems also to believe that Roe was wrong. On this point, HM’s closest link is to Michael McConnell, the only judge on any short list who is on record favoring a ConAmendment to ban abortion; and who also has sharply critized Roe—among other places in a famous article declaring Roe to be still illegitimate after 25 years.

A second reason is that Louise Raggio, her close friend and feminist, told reporters that in 1989 HM was opposed to Roe v. Wade. It is possible that Raggio is mistaken or that the reporters misunderstood her—but it is far more likely that Raggio’s account of HM’s opinions is correct.

A third reason is that Justice Nathan Hecht, who has known HM quite closely, has told reporters that HM sees abortion as involving the balancing of two equal lives—a direct repudiation of Roe’s viability criterion. There is no space here for a complete discussion of Hecht’s interviews with the press; but suffice it say that he has never denied discussing Roe with Hecht, although he has sometimes given less than fully detailed answers to whether or not she would reverse it.

Consequently, there is every reason to believe that Miers is the first nominee to SCOTUS since Robert Bork to be for most practical purposes on record rejecting Roe.

Tuesday, October 18, 2005

Miers: 100% pro-life in 1989

The link is from NRO.

1. She supported ratification of a Human Life Amendment to ban abortion except when the mother's life was at stake.

2. She pledged to re-instate the 1973 Texas law struck down by Roe v. Wade which banned abortion except when the mother's life was at stake.

3. She pledged to oppose government funding of abotion.

4. She opposed city funds to help encourage abortions or abortion referrals.

5. She pledged to oppose pro-abortion persons to city positions "to the extent pro-life views are relevant".

6. She promised to refuse the endorsement of any organization that promotes abortion on demand.

7. She pledged to participate in press conferences to promote the pro-life cause.

8. "Will you use your influence as an elected official with the confines of your oath of office to promote the pro-life cause?" Yes.

9. "Will you participate in pro-life rallies and special events?" Yes.

Not even an exception for rape or incest. This is a True Believer.

NRO: Miers favored ConAmendment banning abortion in 1989

From K-Lo:

"Miers has submitted her response to the Senate questionnaire. An attachment to her response will show that, when running for Dallas city council, she expressed her support for a Human Life Amendment and for a general ban on abortion in the event that Roe v. Wade were overturned."

Monday, October 17, 2005

Miers declared against Roe v Wade in 1989

Harriet Miers is sometimes thought to be a stealth candidate on abortion. She's not. She was convinced no later than 1989 that Roe v. Wade was wrong. She has compiled a consistent pro-life record ever since.

1. Miers came out against Roe v. Wade in her 1989 campaign
Louise B. Raggio, an 86-year-old attorney in Texas who has known Miers since her student days at Southern Methodist University, said Miers opposed Roe v. Wade, the 1973 law legalizing abortion, during her 1989 campaign for Dallas City Council.

"She's sort of a born-again Christian," Raggio told Women's eNews. "She opposes it [Roe v. Wade] because of her religious beliefs."

This makes Harriet Miers the first nominee for the Supreme Court since Robert Bork known to openly oppose Roe v. Wade prior to confirmation. Neither Kennedy nor Souter nor O'Connor ever stated they opposed Roe v. Wade.

2. Miers apparently rejected the viability test of Roe
The Supreme Court in Roe ruled that the rights of the fetus can only be balanced against the rights of the mother after viability. But Miers apparently thinks the rights of the fetus have to be balanced against the mother beginning at conception:

"I know she is pro-life," said Hecht, one of the most conservative judges in Texas. "She thinks that after conception, it's not a balancing act -- or if it is, it's a balancing of two equal lives."

The notion that both lives are equal from conception is a direct repudiation of Roe v. Wade.

3. Miers apparently refused to meet with pro-choice Dallas groups
Miers' campaign manager in her race for the Dallas City Council in 1989, Lorlee Bartos, recalled she was surprised to learn that her candidate was opposed to abortion rights.
"I wanted her to meet with a group of pro-choice women, and she said she wasn't pro-choice," Bartos said. "She said she had been pro-choice but had changed her view."

Bartos went on to say: "She is on the extreme end of the anti-choice movement" .

4. Miers was rejected by gay rights groups in 1989 in part over abortion
In Miers' meeting with members of the gay group, Lerro said Miers stated that she opposed abortion, a response that prompted the group to eliminate her from contention for obtaining the group’s endorsement.

5. Miers in 1989 donated $150 to Texans for Life, an anti-Roe pro-life group

6. Miers defended Operation Rescue because "abortion is murder"
"She said, well, I'm sorry, it's murder, and that's that," said Joy Mankoff, founder of a local women's political action network. "There was no room for any discussion."

6. Miers fought the ABA over their pro-abortion policies
An excellent post over at Stone Court shows that this fight was the direct result of the Supreme Court's recent pro-abortion decision:

In 1989, the Supreme Court decided Webster v. Reproductive Health Services, which narrowed, but did not overturn, Roe v. Wade.In response, in 1990, the American Bar Association (the largest lawyer membership organization) took an officially pro-choice position.
Now, I expect that -- if this gets discussed at all -- we will hear about how this was a purely lawyerly position, and that her only concern was that the ABA should not take a position on a controversial issue and that she was trying to respect everyone's views by advocating "neutrality". The context is pretty clear, however. Given the ABA's "overwhelming" support for abortion rights, neutrality was the best abortion opponents could hope for, and that is what Miers chose to fight for.

7. Miers donated only to candidate with 100% pro-life ratings after 1989
Miers made 13 political donations between 1990 and 2000. All of these were to Republicans with 100% pro-life ratings either from Texas or national right to life groups. Included are three donations to Kay Bailey Hutchinson dating from 1997 to June 1999. In this period Hutchinson had a 100% pro-life voting record according to National Right to Life. In October of 1999, Hutchinson announced that she did not support reversing Roe--since then, Miers has not given Hutchinson a single dime.

8. Miers gave to the Nebraska AG who defended the ban on PBA in 2000
In 2000 she gave money to Donald Stenberg, the Nebraska attorney general who defended Nebraska's partial birth abortion law before the Supreme Court. As one blogger put it: “I didn’t know she had given to Sternberg [sic]. The only people who I know from around here who did that were the real activists.” Exactly.

9. Those who know her best state that she would reverse Roe v. Wade
"Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"
"Absolutely," said Judge Kinkeade.
"I agree with that," said Justice Hecht. "I concur."

This is in complete agreement with Harriet Miers' public record since 1989.

In 2004 millions of social conservatives voted for President Bush in part because they hoped he would appoint pro-life justices to the Supreme Court. Harriet Miers opposed Roe v. Wade in 1989, and she has been consistently pro-life ever since. She deserves our support.

The H-Bomb: W kept his Word

If there has been anything consistent in the Bush administration it's that W keeps his word. Love him or hate him--when he tells you he's going to do something, he does it.

In 2004 millions of socially conservative voters went to the polls in the belief that W would appoint socially conservative judges. Not many doubted that W had kept his word with the appointment of John Roberts as Chief Justice.

But the last two weeks have seen a volcano of suspicion erupt over fears that Harriet Miers would turn out to be a judicial liberal/moderate in the mold of Souter or Kennedy or O'Connor.

Now comes the H-bomb, the Harriet bomb: a long distance conference call with Texas judges Nathan Hecht and Ed Kinkeade who have known her for years:

What followed, according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"

"Absolutely," said Judge Kinkeade.

"I agree with that," said Justice Hecht. "I concur."

This will, no doubt, stir up a tempest on Capitol Hill.

Hecht is a member of Miers' home church, and has known her closely for fifteen years--he is a Texas pro-life leader, and the two attended two or three pro-life fundraising dinners together in the late '80s and early '90s.

I don’t believe and have never believed that Hecht doesn’t know her position on Roe. Since she ran a pro-life campaign for Dallas city council and clashed with Dallas feminists on this numerous times, her pro-life position has been well-known in Texas. Hecht has been trying simultaneously to keep her pro-life past from killing her with the NYTimes/Senate/Specter, AND trying to rally evangelicals/conservatives to support her.

Now things have gone badly awry.

Hecht is from her home church; she dated him; there’s every reason to think she’s been open with him. Kinkeade is apparently also another Christian conservative; they’ve known each other for 25 years. As someone who spent most of his adult life as a member of a GARBC Baptist church, evangelicals will frequently open up within their home church about things they would never discuss at work.

I don’t think this is just a prediction by Hecht/Kinkeade.

They know.

To put it differently: I’ve been arguing for a while that she has since 1990 a consistent pro-life record. The evidence isn’t totally bullet-proof; each item can be questioned seriatim; but in the end, when the record is looked at as a whole, the probabilites that she wants to reverse Roe on the basis of the public record have always seemed to me quite high. The Hecht stuff just confirms the other items on the list.

Needless to say, the Kossacks of the Left are delighted:

Armando at DKos says this:
“Will this reassure the Religious Right? After all they’ve invested in righteous rage? Will it be the tipping point for pro-choice Democratic Senators? Do you have to ask?

My friends, let us have a moment of silence. The good lady is toast.”

They'll have to deal with W first. And the GOP may well have enough votes to confirm.

But for now let us be clear on one thing: when it came to
appointing judges, W kept his word.

Tuesday, October 11, 2005

The Barking Dogs of Texas

The title of the post is a take on the old line from Sherlock Holmes about the dog that didn't bark.

I've been trying to listen carefully to the dogs that are barking from Texas, the people that have known her best for many years, both friends and foes. (The boldface is mine).

Lorlee Bartos, friend:
"She is on the extreme end of the anti-choice movement," said Lorlee Bartos, who managed Ms. Miers' first and only political campaign and said they discussed abortion once during the race.

Joy Mankoff, foe:
In another instance, candidate Miers agreed to sit down with a group of abortion rights activists. Operation Rescue was staging regular protests at area abortion clinics, and the group of about 10 women who met with Miers wanted to know whether she supported a 1985 city ordinance that protected patients from harassment. Four of the women in attendance said in interviews that Miers was immovable.
"She said, well, I'm sorry, it's murder, and that's that," said Joy Mankoff, founder of a local women's political action network. "There was no room for any discussion."
Although the women left the meeting convinced that Miers was completely opposed to abortion rights, one, liberal lawyer Louise B. Raggio, continued to support Miers and still does. Miers, for her part, has raised money to promote a lecture series on women's issues bearing Raggio's name. The first speaker was feminist Gloria Steinem.

Or Molly Ivins, foe (think Texas' answer to Maureen Dowd):
What the nomination means in larger terms for both law and society is the fifth vote on the court to overturn Roe v. Wade.
Miers had the support of feminists when she ran for office first in the Dallas bar and later when she became the first woman president of the Texas Bar Association, even though the feminists were aware she was anti-choice.
One of Miers' key backers was Louise Raggio, a much-revered Dallas feminist lawyer. The women lawyers groups favored Miers despite her stand on abortion because she was a candidate acceptable to the Establishment, thus making her electable as a woman.
The slightly feminist tinge to her credentials is a plus, but she is quite definitely anti-abortion.
She ran for city council in 1989 as a moderate, but struggled during her interview with the lesbian/gay coalition. (At the time, it would have been considered progressive to even show up.) The Dallas Police Department did not then hire gays or lesbians, and when asked about the policy, Miers replied the department should hire the best-qualified people, the classic political sidestep answer.When pressed, she said she did believe one should be able to legally discriminate against gays, and it is the recollection of two of the organization's officers that the response involved her religious beliefs.

Louise Raggio, SMU feminist: She is not pro-choice. She told us so and stood her ground,” said Louise Raggio, now 85 and the only woman in the graduating law school class at SMU in 1952. “Sure, it concerns me, because I don’t know what she’ll do on Roe versus Wade. But I do know that she’ll stick to the Constitution.”

Ken Rainey, Texas bar:
I have had the privilege to spend many hours working with her both on matters that related to the bar’s role in public service as well as a couple of cases where she and I represented a common client. I can tell you, by whatever standard you choose to judge her, litmus test included, she is, as we say East of the Pine Curtain, ‘good folks’. In addition to that, she is brilliant.
She appears, as I have observed, to be a strict constructionist if by that term one means not using the courthouse or the law to ” legislate from the bench.” On more than one occasion I have been in meetings and conferences with her when she would look over at me or someone and say: “what’s the law?” Not, “what result do you want to squeeze out of the question “, but “what’s the law”?

Colleen McHugh, Texas Bar:
"That she is hard-working explains why she is able to do so much...She is also brilliant."

Ken Starr: (Hannity and Colmes interview)
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.

From Kyleen Wright, Texans for Life (via NRO): Harriet Miers gave $150 to the organization — then known as Texans United for Life — in 1989. Miers was a bronze patron for their annual dinner in which Henry Hyde was the keynote speaker. She was listed in the program as a bronze sponsor.

Beldar, Texas lawyer and blogger: I've gotten unsolicited emails from a former professor of hers; a fellow editor on the Southwestern Law Journal; a former colleague in a high leadership position of the State Bar of Texas; several lawyers who've had cases with and against her; and three different lawyers (including a judge) who've practiced with her and/or who describe her as a role model, pioneer, and a personal inspiration. Percentage thanking me for publishing factual and detailed information about Ms. Miers' record: 100 percent. Percentage expressing any doubts about her fitness for the Court based on personal knowledge and dealings with her: Zero.

The notion that Harriet Miers' only qualification, or even her main qualification, is her friendship with Dubya is outrageous.