damnum absque injuria

October 5, 2005

Bush League Opposition

OK, that does it. I’m finished with being a presumptive oppoonent of Harriet Miers, and officially move into the camp of presumptively supporting her. That presumptive part probably won’t go away until the confirmation hearings, but for now, the case I’ve seen made against Miers has been so uniformly bad that I’m forced to think that if this is the best her detractors can do, maybe she ain’t so bad after all. The straw that broke the camel’s back was this entry, in which the two smartest Miers opponents I know both gushed over this asstastically stupid article by David Frum, which the Clam described as “required reading” for Miers supporters and opponents alike, and which Patterico then described as “a great article.” In fact, it is neither. The article is poorly reasoned, poorly edited, poorly thought through, and smacks more of some sort of personal vendetta than of a serious critique of Harriet Miers’s qualifications, or lack thereof, for the position to which she has been nominated. There’s is nothing remotely great or even good about it, and if it’s “required” anything it is required fisking. I doubt either the Clam or Patterico would have had any trouble seeing if the same article had been written about anyone they supported or were even neutral on, or if Frum had written a similarly reasoned article in support of Ms. Miers. Here are some of Frum’s pearls of non-wisdom:

The president was visibly angry at his press conference yesterday. Nobody likes criticism, especially when it’s justified.

Ah yes – if someone is pissed off at you for criticizing him, it must mean that your criticism is valid. After all, nobody really minds being criticized for no good reason, as surely as only the true Messiah denies his divinity. Did it even occur to Frum that maybe the President was angry because he reason to believe the criticism was not justified? Of course not, as that would require entertaining the possibility that Frum could be wrong, which of course we cannot allow. More on that later.

The problem with Harriet Miers is not that she lacks formal credentials, although she does lack them. Had the president chosen former Solicitor General Theodore Olson, or Securities and Exchange Commission chair Christpher [sic] Cox, or former Interior Department secretary Gail [sic] Norton, nobody would complain that they were not federal appeals court judges.

If you really believe that, Mr. Frum, please write me for your free investor’s kit. Just ask anyone who can spell Gale Norton’s name and he’ll tell you her confirmation hearings were no walk in the park, nor were Theodore Olson’s, despite the fact that nowhere near as much was at stake in either of those hearings than is now. As to Chris Cox, well, let’s just say there’s a reason why he’s now the Securities and Exchange Commission chair and not an appellate level judge, let alone a Supreme Court nominee. It has nothing to do with his qualifications for such positions – I have no doubt he’d do fine. It has everything to do with the fact that politically, they’re non-starters. Take this to the bank: if Cox had been the nominee, he’d be filibustered, borked, or both.

The objection to Miers is not that she is not experienced enough or not expensively enough educated for the job. It is that she is not good enough for the job. And she will remain not good enough even if she votes the right way on the court, or anyway starts out voting the right way.

Translated: rather than admit that there’s even a potential that I might be wrong, let’s define “good” in some ad hoc, ultra-special way that will ensure that no matter what Harriet Miers does on the bench or how well, she can never be considered a “good” Justice, by definition, and therefore, I can never be wrong. While we’re at it, let’s also redefine the word “bullshit” so that that word can never apply to anything I say or write, however poorly reasoned, ill-informed or just plain stupid it might be. Oh yeah, ixnay on the upidstay, as well. Hey, this is fun!

But “because I say so” is not an argument. It is an assertion of pure authority. And have not the great conservative legal minds of the past three decades warned again and again that the courts have gone wrong precisely because they have relied too much on authority and too little on argument?

Actually, no, they haven’t. Quite the opposite, in fact. Roe v. Wade is about as chock full of policy arguments as it gets. The reason conservatives – judicial ones, that is – oppose Roe is not kosher is because the court overstepped its authority, and refused to respect the legitimate authority of duly elected Legislatures. In short, it was the Court’s refusal to accept “because I said so” as an answer from the Legislature that we got into this mess. Clarence Thomas understands that, John Roberts understands that, Antonin Scalia understands that, and one would hope that Harriet Miers understands that, even if David Frum doesn’t. Show me a judicial conservative who has never upheld a Legislature’s “because I said so” authority to enact a law he personaly considered uncommonly silly, and I’ll show you a “conservative” who isn’t a conserative at all.

Not that any of this has a whit to do with the merits of Harriet Miers’s appointment, mind you. No one is seriously challenging President Bush’s authority to appoint anyone who wants, any more than anyone is challenging David Frum’s right to make stupid statements about it. The question is whether or not the Senate should confirm Miers, not whether or not anyone did or did not have the authority to do anything.

Legal conservatism is a powerful and compelling school of thought. The Scalias and the Thomases and the Rehnquists have changed the law not by forcing their positions on the country by brute vote-counting, but by persuasion. That’s why, to pick out just one example, that Bush v Gore was decided by a 7-2 majority and not lost 3 to 6.

David Frum, for that statement I’d like to offer you one free WhopperTM at a Burger KingTM of your choice. For starters, as just about everyone in the world who isn’t named “David Frum” knows, the ultimate holding of Bush v. Gore – the part that ended the seemingly endless recounts in Florida – was decided 5-4, not 7-2. The only thing that was decided 7-2 was the Court’s interesting application of the Equal Protection Clause, hardly a provision conservatives are fond of extending, and even more odd in that two of the court’s liberals could not be persuaded to join it. The one basis on which the Court might have ruled and made the conservatives proud would have been to enforce Article II, Sec. 1 and require the Florida Supreme Court to abide by the statutes the Florida Legislature had passed. On that issue, the conservatives did indeed lose 3 to 6, apparently because four liberals and two moderates could not be persuaded to accept that any tortured court ruling could ever be deemed to violate the statute it purports to apply. If Miers’s appointment accomplished nothing more than to cut that common sense deficit in half and reduce it from 6-3 to 5-4, that might not be much, but it would be an improvement over the status quo.

This president has never believed much in persuasion. He believes that the president should declare and that the country should then follow.

Which, presumably, is why he consulted all those Senators, notably “Give ‘Em Hell” Harry Reid, prior to appointing Miers in the first place, making him the first President in recent history (or all U.S. history?) one of the few to actually take seriously the “advice” component of “advice and consent.” He did, however, commit the cardinal sin of failing to consult … oh, I dunno … David Frum?!

If the courts were just about getting the votes, then the president should have chosen Dennis Hastert for the Supreme Court. But to change American law, it’s not enough to win the vote count. You have to win the argument. And does anybody believe Harriet Miers can win an argument against Stephen Breyer?

That depends on what you mean by “win.” Given her experience as a practitioner, Harriet Miers has probably won over more judges on more issues than all eight of her soon to be colleagues put together, so I have little doubt she can easily win an argument against Stephen Breyer, at least as that term is usually defined, i.e.,unearned accolades from two conservative law bloggers who really ought to know better, is that visionary, George Will. Will, you might recall, is that long-time Bush family loyalist who just luurrrved Clarence Thomas when he was appointed in 1991, so his opposition to Miers is particularly noteworthy. While some conservatives worry aloud that Miers is likely to “grow” on the job, Will seems more bothered by the prospect she may not:

The wisdom of presumptive opposition to Miers’ confirmation flows from the fact that constitutional reasoning is a talent — a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer’s career.

Translated: relying on phony, psuedo-constitutional “constitutional” theories is not a talent you can learn overnight. Just because you’ve gotten really good at explaining and arguing that statutes mean what they say, doesn’t mean you’re smart enough to read the Constitution and start making it mean what it doesn’t say.

Will also engages in “air quotes,” an extremly dishonest practice Patterico has justifiably taken the L.A. Times to task for in the past, but for which he gives Will a pass this time around. The theory is, in a nutshell, that you put quotes around a word not to indicate what someone said, but what he meant – or more accurately, what you have decided he meant, even though he never said any such thing. Quoth Will:

Under the rubric of “diversity”‘ – nowadays, the first refuge of intellectually disreputable impulses — the president announced, surely without fathoming the implications, his belief in identity politics and its tawdry corollary, the idea of categorical representation.

[Emphasis added.]

This is exactly [UPDATE: Make that "very similar to"] what L.A. Times Staff Writer William Arkin did to Lt. General Jerry Boykin two years ago, when he falsely accused Boykin of supporting a Christian “jihad,” quotes and all, when of course Boykin himself would never have used that word. Note that I wrote a partial defense of the use of “air quotes” in that instance, which could work equally well on Will’s behalf. However, Patterico never conceded that point point as to Arkin, so I little reason to cut Will any more slack for the exact same thing. I presume that letting this go was simply an oversight on Patterico’s part. [UPDATE: actually, the oversight was mine; Bush did drop the d-word in a speech one week earlier, although it is not clear he was referring to Miers at the time, as Will suggests but does not actually come out and say.]

Will also takes the concept of a non sequitur to a new and exciting place:

The crowning absurdity of the president’s wallowing in such nonsense [as taking gender - or whatever the hell else he meant by "diversity" - into account] is the obvious assumption that the Supreme Court is, like a legislature, an institution of representation. This from a president who, introducing Miers, deplored judges who “legislate from the bench.”

Translation: if you appoint a person whom you believe will not legislate from the bench, then that is the same thing as legislating from the bench, but only if the would-be strict constructionist you appoint is a woman, or maybe that black guy your father appointed whom we now know really is a strict constructionist. Or something like that. Whatever. Bush sucks, dammit!

Between this and his handling of California’s recall election, George Will should go back to writing about baseball.

UPDATE: In the original post, I accused George Will of engaging in the old “air quotes” trick of using quotation marks to describe something the object of one’s derision had not said, but which the author smugly assumed he really meant. Commenter Nels Nelson quickly pointed out that the reference in question – “diversity” – was not an air quote at all, but a word President Bush had in fact used when cryptically describing the nomination a week earlier. The applicable quote was as follows:

“I will pick a person who can do the job. But I am mindful that diversity is one of the strengths of the country.”

The journalist interpreted “diversity” to mean what journalists always interpret that word to mean – minorities “or women.” Similarly, when Proposition 209 was debated, journalists routinely parroted the line that the abolition of affirmative action would end to decreased opportunities for minorites “or women,” despite the absence of a shred of evidence that women benefitted from affirmative action at all. Similarly, the journalist also appeared to assume – as did Will and Patterico – that “I am mindful that X is one of the strengths of this country” is a code phrase for “X will determine my nomination.” I, on the other hand, took it to mean “I won’t tell you who I’m nominating, but I will assure you that I gave due regard to X while making that decision.”

In his zeal to vindicate Mr. Will, however, Patterico may have unintentionally uncovered evidence that President Bush’s reference to diversity was a coded reference to his impending appointment of Miers after all – it just didn’t mean what he, Will or even I had assumed it meant. Money quote:

Aides said Bush had been dwelling on advice from Senate Judiciary Chairman Arlen Specter (R-Pa.) and others to consider candidates with real-world lawyering experience, not just those from the appellate bench. “He was really struck with the idea of bringing an additional layer of diversity to the court in terms of life experience,” said the senior official close to the process.

So apparently, Miers was the “diversity” pick after all, just not the kind of “diversity” her detractors’ knees jerked them into assuming she was. Whether this kind of diversity turns out to be a plus, a minus or a wash remains to be seen.

24 Responses to “Bush League Opposition”

  1. caltechgirl Says:

    the enemy of my enemy is my friend?

  2. Nels Nelson Says:

    Bush said, “I will pick a person who can do the job. But I am mindful that diversity is one of the strengths of the country.”

    What makes Will’s quotation marks “air quotes”?

  3. Patterico Says:

    Nels:

    Thanks for saving me the trouble of posting the same comment.

    Another major problem with this “fisking”:

    And have not the great conservative legal minds of the past three decades warned again and again that the courts have gone wrong precisely because they have relied too much on authority and too little on argument?

    Indeed they have — though I would use the word “power” instead of “authority.” As I read Frum’s statement (and I agree it was poorly edited; I noticed a couple of typos that Xrlq actually let go), he is saying that the Court, in cases like Roe, has relied on a “because we said so” sort of argument rather than providing a persuasive basis for arguing that abortion is a right of constitutional dimension. Ditto their cases finding a growing consensus against executing juveniles and the mentally retarded. Ditto the preservation of Miranda, which was uphelding using the strangest of logic. Ditto Lawrence and numerous other cases.

    Scalia’s full-throated and highly persuasive dissents have made it clear — to anyone who will read them — that the basis of these decisions is not sound logic and persuasion. It’s simply raw power execised by the Court.

  4. Patterico Says:

    With Nels’s quote, X, I suggest you retract this statement: “I presume that letting this go was simply an oversight on Patterico’s part.”

    I assure you it was not.

  5. Xrlq Says:

    CTG: Sorry, don’t follow that. Who is the “I,” who the enemy, and who is the enemy’s enemy?

    Nels: I wasn’t thinking of last week’s speech when I wrote this, but you’re probably right that that speech is the one Will was referring to. Upon re-reading that paragraph, Will doesn’t actually come out and say he announced Miers’s appointment “under the rubric of ‘diversity,’” but it sure as hell sounds like that. Perhaps dowdification is a better charge than “air quotes” per se.

    Patterico: given the highly misleading context, the air quote charge against Will stands – or, if you prefer, is replaced with a charge of first degree dowdery – but the oversight charge against you has been retracted. Rather than suggest it was an oversight on your part to have missed the highly misleading context of juxtaposing one event over another to falsely imply an admission that Miers was hired as a “diversity” candidate, I’ll simply take it on faith that when you heard the 9/26/05 speech, you unterpreted “diversity” to mean “some white woman,” and “mindful” to mean “that’s who I’m hiring.”

    Your point about power and authority is fine as far as it goes (i.e., lawless cases like Roe), but it has nothing to do with Frum’s incoherent babbling about the nomination. It’s one thing to object to “because I said so” cases where a court (or any other branch of government) asserts a power it does not legitimately have “because I said so,” and then rules on the matter for any reason – which, FWIW, is generally a much better reason than “because I said so.” It’s quite another to whine about another coordinate branch employing “because I said so” logic to justify an activity it clearly does have the authority to engage in, and which it is therefore under no obligation to justify to anyone. Contrary to social conservatives like George W. Bush and Harriet Miers, I happen to think Texas’s sodomy law was an idiotic, bigoted, quasi-fascist law that never should have been enacted, and yet, as a judicial conservative, I also believe it should have been upheld by a more conservative Supreme Court, almost without argument. Why, you ask? Simple: “because I [read: the Texas Legislature] said so.”

  6. Patterico Says:

    I’ll simply take it on faith that when you heard the 9/26/05 speech, you unterpreted [sic] “diversity” to mean “some white woman,” and “mindful” to mean “that’s who I’m hiring.”

    You needn’t take it on faith. That’s exactly how I interpreted “diversity.” I didn’t know who he was hiring at the time — but based on the press reports I’ve seen, I’m pretty sure he *did* know.

  7. Patterico Says:

    Which, why does that matter anyway? What Will was saying was that when the President highlighted the need for “diversity” — his word — he was giving in to the demands of identity politics.

    Will’s quote is absolutely nothing like what the Times did to Gen. Boykin — at all. It’s just an accurate quote. Nothing more.

  8. Xrlq Says:

    You needn’t take it on faith. That’s exactly how I interpreted “diversity.” I didn’t know who he was hiring at the time — but based on the press reports I’ve seen, I’m pretty sure he *did* know.

    Maybe he did, maybe he didn’t, but I don’t think of white women as “diversity” candidates, and I sure as hell don’t interpret “I’ll be mindful of X” to mean “X will carry the day.” For all you or I know, “I am mindful that diversity is one of the strengths of the country” could just as well have been a preemptive excuse not for hiring a woman, but for not hiring a minority.

    It’s an accurate quote of what he said on one occasion, juxtaposed against other semi-accurate statements about what he meant on another, without so much as a hint that he is talking about two different incidents, or about the fact that the word he’s harping on may not have been relevant to the nomination at all. It’s as “accurate” as any L.A. Times article that reports a series of statements (all true!) about Sandra Day O’Connor’s last full year on the bench, and also throws in a bit about her having been that fifth vote to save Roe (also true!) while not bothering to mention that the last bit was from 1992 (but they never said the decisions all were from the same year, either!).

  9. Patterico Says:

    I don’t think of white women as “diversity” candidates . . .

    The article Nels linked says:

    John Roberts, hailed by supporters as “the brightest of the bright,” cruised Monday toward easy confirmation as chief justice while President Bush hinted that his next pick to the Supreme Court could be a minority or a woman.

    “Diversity is one of the strengths of the country,” the president said.

    Evidently the reporter heard it much the way I did. I heard “woman” louder than “minority” because the nominee was to replace a woman.

    . . . and I sure as hell don’t interpret “I’ll be mindful of X” to mean “X will carry the day.”

    Go back and read what Will said again, dude. To anyone who remembered Bush’s comment, as I did, Will’s point was clear: Bush caved to the idea that identity politics matter to the issue of who belongs on the Court. Of course it was relevant to the nomination! He was talking about the replacement for O’Connor! And if you believe this story, Bush had already told Miers to add her name to the list of possibilities (in effect telling her she was the nominee) before he made this comment.

  10. Xrlq Says:

    C’mon, Patterico, you know the media better than that. Of course they append “or women” to every reference to diversity, whether it’s Prop 209, a Supreme Court appointment or anything else. Like that pro-life / anti-abortion play, it’s only a matter of time before some copy editor throws in a gratuitous reference to “or women” in a financial article he doesn’t understand about the need for “diversity” in one’s portfolio. That this journalist “heard” what he wanted to hear tells us nothing about what Bush said, meant, etc. I don’t doubt that he knew who he was going to appoint at the time he made the statement, but I do doubt that the statement itself was intended to be a coded admission that his nominee was a woman. If anything, it was a head fake to make you think it might be a minority, not unlike all those “insider” rumors that abounded last time to make us all think John Roberts was really some woman named Edith.

    That last story you linked to did allow for one interesting theory under which Dubya’s reference to “diversity” may well have been an oblique reference to the nominee he chose rather than the other contenders he wanted to assure us he’d given a fair shake to. It’s not, however, the kind of “diversity” you or George “Davis for Governor” Will reflexively assumed it was. From p. 2:

    Aides said Bush had been dwelling on advice from Senate Judiciary Chairman Arlen Specter (R-Pa.) and others to consider candidates with real-world lawyering experience, not just those from the appellate bench. “He was really struck with the idea of bringing an additional layer of diversity to the court in terms of life experience,” said the senior official close to the process.

    With that, I hereby rescind my charges of Will having either inserted air quotes or pulled a dowdy, and replace it with a charge that he pulled a Clod/Acthole.

    [Patterico knows what that means, of course, but for the benefit of any readers who don't, two of Patterico's regular trolls, M. Croche (whose real name is "Claude") and Actus (who is an asshole) both have an almost perfect record of missing the point every time.]

  11. Patterico Says:

    Which, presumably, is why he consulted all those Senators, notably “Give ‘Em Hell” Harry Reid, prior to appointing Miers in the first place, making him the first President in recent history (or all U.S. history?) to actually take seriously the “advice” component of “advice and consent.”

    What about Clinton with Ginsburg?

  12. Patterico Says:

    but for now, the case I’ve seen made against Miers has been so uniformly bad that I’m forced to think that if this is the best her detractors can do, maybe she ain’t so bad after all . . .

    Having committed numerous errors in analyzing the case against her, how about taking a look at the case for her? So far, all I’ve heard:

    1) Bush picked her.

    2) Bush knows her.

    3) She’s a she.

    Wow.

  13. Doc Rampage Says:

    All in all, a good fisking, but you still haven’t given any reason to support her.

    What about Angry Clam’s argument that this sends a signal to ambitious conservative lawyers to keep their opinions to themselves?

    What about the fact that Bush is leaving the Democrats with a presumption against conservative nominees? The Democrats have been shameless with their assumption that no one is qualified to serve as a judge if there is any hint that he or she wouldn’t support Roe. By refusing to take on this assumption, even when Republicans have the majority in both houses, Bush is handing the Democrats a precedent.

    And what about the fact that Bush is arranging things so that we won’t really know whether he kept his campaign promise until he is out of office?

    And finally, are you realy still willing to give Bush the benefit of the doubt? After his spending? After his refusal to control illegal immigration? After campaign finance reform? After the way he left his other judicial nominees hanging until after the election?

  14. The Spoons Experience Says:

    New Frum on Miers

    David Frum pens the most detailed and substantive explanation I’ve seen yet about why the Miers nomination is so troublesome. (I hope XRLQ reads this piece carefully)….

  15. Xrlq Says:

    Having committed numerous errors in analyzing the case against her, how about taking a look at the case for her?

    The errors to which you refer are on the order of typos. All the ones you’ve identified have been corrected above, and none rehabilitate a single word either Frum or Will said. Having misssed the forest for the trees, how about re-reading my corrected post now, and considering how much of substance, if anything, is left of either Frum or Will’s pieces.

    As to the case for her, that case has yet to be made to my satisfaction or anyone else’s that I know of. At this stage, I’m not pro-Miers piece, just anti-anti Miers.

    Doc, I share Angry’s concerns about conservatives keeping their views to themselves. However, I don’t think it has nearly as much to do with this nomination as he appears to assume. And given Miers’s past activities, I think we have more than a hint that she would not support Roe. Enough of a hint, I might add, that once Harry Reid & Co. are foolish enough to confirm her, they’ll be an a very odd position to argue against confirming anyone else on that basis.

    And what about the fact that Bush is arranging things so that we won’t really know whether he kept his campaign promise until he is out of office?

    He’s not; he’s got almost a full term ahead of him, which is plenty of time for us to know whether appointing Miers was in line with his promise to appoint Justices who share his judicial philosophy. Depending on when appointment #3 comes around (and the odds are that it will), we’ll probably even know enough in time for that confirmation.

    And finally, are you realy still willing to give Bush the benefit of the doubt? After his spending? After his refusal to control illegal immigration? After campaign finance reform? After the way he left his other judicial nominees hanging until after the election?

    Absolutely. As much as I deplore Bush’s drunken sailor spending, his stance on illegal immigration and his signing of First Amendment “reform,” none of these are remotely related to his track record on judicial appointments, which is quite good. I’m not sure what you mean by “left them hanging,” but I think the issue here is whether or not to trust the selection process itself, i.e., not “will Bush leave Miers hanging?” but “did Bush choose a real conservative?” By all accounts, he did. If conservatism were the only issue, the smart money says Miers is more conservative than Chief Justice Roberts or even Justice Thomas, who described as “uncommonly silly” the same anti-sodomy statute whose repeal Miers had previously opposed.

    As I mentioned before, I agree that the affirmative case for Miers, as opposed to cutting out all the silly crap that has been said against her, has yet to be made. Then again, the case to made to me must show not only that she is a judicial conservative, but that she will bring something valuable to the bench beyond that. If all you care about is whether President Bush kept his promise to appoint judicial conservatives to the bench, the Miers nomination comes about as close to a guarantee as it gets.

  16. The Glittering Eye Says:

    More on Supreme Court qualifications

    The unpronounceable xrlq of Damnum Absque Injuria finds that it’s time to stop “being a presumptive opponent of Harriet Miers, and officially move into the camp of presumptively supporting her” at least in part moved by the lousy arg…

  17. Joel B. Says:

    This is very odd indeed, because if you read some of the comments I made at Althouse’s blog, I was thinking on much the same lines as you X.

    I don’t know what to think of Myers, but I have no clue what there is so much venom being secreted in her direction. Especially, when the problem seems to be …”it’s not McConnell or Luttig.” In any event, I’m basically in the wait and see camp, with pretty much the same frusteration with the anti-Myers crowd. Oh well.

    I’m reminded though of that comment you made long ago about us agreeing about a lot, which is probably true, heck both our teams can be referred to as the A’s, (of course, it’s all about Oakland though!)

  18. Doc Rampage Says:

    Xrlq: When the Democrats fillibustered a bunch of Bush’s nominations, Bush did nothing to try to push them through. He just left them hanging until after the election. I’ve always believed that he did this deliberately as a campaign ploy.

    Also, I think you need to distinguish between Miers being morally conservative vs. judicially conservative. No ammount of evidence for the former can count as evidence for the latter. I’m very strongly against drugs, but if I were on the Supreme Court I would rule that it is unconstitutional for Congress to regulate them. My moral and judicial opinions differ and as a judge, I would have to go with my judicial opinion.

    Similary, for Miers, no matter how much she may be opposed to abortion, she may very well see a right to unrestrained sex (often euphemistically called a “right to privacy”) in the constitution.

  19. Patterico Says:

    At this stage, I’m not pro-Miers piece, just anti-anti Miers.

    Jeff Goldstein is not anti-Miers (in one sense, neither am I, since I have not committed to oppose her nomination), and he is not anti-anti-Miers. But he is anti-anti-anti-Miers.

  20. Xrlq Says:

    Doc: I don’t think Bush deliberately left anyone to hang out to dry, but even if he did, that’s a bad track record in one area, and a history of appointing bad judges to begin with is another. Only the latter is relevant to whether or not we should trust Bush’s judgment in this instance.

    As to moral vs. judicial conservatism, I think you can count on one hand the number of people who find abortion abhorrent, on the one hand, and find it so insanely wonderful that they magically discover a nonexistent constitutional “right” to it, on the other. It’s one thing to argue, as I would, that there is no enumerated Constitutional power properly authorizing the federal government to regulate drugs (or, for that matter, abortions). It’s quite another to suddenly “discover,” as no court has ever done to date, that every individual has a “constitutional” right to use drugs (or, for that matter, to obtain abortions). Surely you are not arguing that state laws prohibiting drugs are unconstitutional?

    Patterico: Why am I not surprised that while The Other Xrlq remains largely silent on the issue, The Other Other Xrlq is anti-anti-anti-Miers?

  21. Insults Unpunished » An Online Jihad Against Miers Says:

    [...] UPDATE: For a differing viewpoint, or at least an argument against the current arguments, check out XRLQ. [...]

  22. SDN Says:

    Xlrq,

    Consider white womyn a minority because the government does when handing out Affirmative Action bennies. Title IX?

  23. Doc Rampage Says:

    trusting Bush

    Stanley Kurtz (via Volokh) points out that Miers, the woman nominated for the Supreme Court, was involved in creating a lecture series in a woman’s studies department. Furthermore, she did it in the 90’s, after she had left the Democratic Party. This…

  24. Calblog Says:

    The Miers nomination

    As some have noticed many digital 1s and 0s have been spent in discussing the Miers nomination. However, since 1s and 0s are relatively cheap I also want to voice my impression of the Miers nomination. Despite Justin’s opposition, I…

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