Harriet Miers is Unconstitutional
Some readers may interpret last week’s broadsides against David Frum and George Will as a backhanded endorsement of Harriet Miers’s nomination, or at least as a representation that Miers opponents are the only ones engaging stooopid arguments in this issue. Neither, of course, is the case. I remain cautiously pessimistic on Miers’s tenure on the Supreme Court, not so much because past Justices with her background have generally sucked, but because Supreme Court Justices generally do. Given the plethora of opinions and the dearth of material, verifiable facts we’ve gotten over the past week and a half, I doubt that my position on Miers herself will change much in either direction between now and the Senate hearings, at which point I’ll either be shocked and awed by Bush’s brilliance in selecting this unlikely constitutional heroine, embarassed beyond belief that I voted for the guy, or something in between. So again, this post is not a pro- or anti-Miers piece. It is, however, an anti-stupid piece, this time focusing on some of the stupid stuff that’s been said for Miers. It won’t be nearly as long as my Will and Frum fiskings, not because the topic is any less deserving, but simply because I’m getting tired of reading, writing or even thinking about the Miers nomination. But a few things need to be said about some of the weaker arguments that have recently been leveled on both sides.
- Harriet Miers’s Religion. President Bush has cited Miers’s religion as one of the reasons he nominated her. That is not good. In fact, it flies in the face of the spirit, if not the letter, of the Article VI prohibition on religious tests as a qualification for public office. Liberals who held John Roberts’s religion against him were wrong, and conservatives who hold Miers’s religion for her are equally wrong. Religion should play no role here whatsoever.
- Harriet Miers’s Age. Beldar recently noted that this argument appears to have fallen off the radar screen. Good riddance to it. After all, her age is only a minus if you’ve determined that all the other arguments against her are bogus. It’s only if she is another Thomas or Scalia that it makes sense to be bummed about the fact she probably won’t be on the court nearly as long as Roberts will.
- Laura Bush and Sexism. This tempest in a teapot is made-from-TV non-news. If Laura Bush had truly played the sexism card, as Michelle Malkin, Captain Ed and others have recently claimed, that would really mean something – about her if not about the President himself. It’s not as clear-cut the other way as Dafydd suggests, either, but the bottom line is that it was Matt Lauer, not Laura Bush, who brought up the issue of sexism, and then only on the weasely sense of asking if it was “possible.” Of course it’s possible. What the hell else was Bush supposed to say, that it is impossible that any of Miers’s critics might be sexist? Please. She didn’t bring the issue up, she didn’t dwell on it, and she quickly changed the subject back to what she was emphasizing, which was Miers’s strengths, not her opponent’s weaknesses. It’s particularly silly for Michelle Malkin to have made so much hay of this, given that she has also recently heaped praise on Laura Ingraham for her recent critique of the Miers nomination, in which Ingraham used the very same word to describe the “possibility” that Miers could turn out to be better than Scalia. Can’t have it both ways.
- Miers Opponents Should Just Shut Up. It was bad enough when Lindsey Graham told Miers’s detractors to STFU. As irresponsible as his statement may have been, at least he didn’t imply that they have no right to speak if they want. Today, Patrick Leahy did, claiming that “[n]o political faction should be given a monopoly of relevant knowledge about a nomination, just as no faction should be permitted to hound a nominee to withdraw, before the hearing process has even begun.” Got that? For those of you hounding Miers to withdraw, not only is your hounding misguided, but at least one of the nation’s 100 top lawmakers and one of the 101 individuals who get to decide who serves on the courts thinks you should not be permitted to. Sieg Heil, Herr Leahy, Sieg Heil.
October 13th, 2005 at 12:26 am
Xrlq:
Forgive me, Xrlq, but I think this is utter nonsense. That’s not what any regular person would imagine was meant by the prohibition of religous tests — in letter or in spirit.
If I’m choosing between appointing two people, one of whom is a religious orthodox Jew who is well respected among his religious community, the other of whom worships Loki, god of thieves, murderers, and liars, and has achieved the rank of Prince of Lies in his Temple of Insanity, I’m sorry to irk you, but I’m going with the Jew. The worst I have to worry about his religion is that he won’t be available after sundown on Friday. All right; we can work around that.
But if the other guy actually believes in a religion that tells him lying through his teeth is utterly moral and proper, how can I possibly know whether he’s telling me the truth? And if his religion tells him murder and thievery are proper ways to worship, how can I trust him to properly judge such cases?
For that matter, I don’t think it’s improper at all for senators to ask Catholic nominees how they could adequately protect the rights of abortionists if they themselves believe abortion is the same as murder?
The religious test thingie in the Constitution meant no test like “you are forbidden to appoint a Catholic,” or “you are forbidden to nominate someone from Anton LeVey’s Church of Satan.”
I can’t imagine anyone (except maybe lawyers!) thinking it means “you can’t ever even take notice of what religion somebody professes, and whether or not he lives up to his obligations there, when considering whether he or she is stable enough for a lifetime appointment as high priest of the judicial temple.” I do not believe it applies, even in spirit, to a president deciding whether or not to appoint so-and-so, or to a senator deciding how to vote on the confirmation of that same so-and-so. If Kerry wants to vote against all practicing Catholics on those grounds, he’s perfectly allowed to do so.
Yours is really a strangely expansive way of looking at what is really a very simple and historically obvious prohibition. In fact, I would go so far as to call that sort of expansion of rights an example of judicial activism, were it done by a judge.
Dafydd
October 13th, 2005 at 12:43 am
Well, sure, but so what? All activism would be judicial activism, if done by a judge. You got a problem with that?
October 13th, 2005 at 9:01 am
The proper response would have been …
“You know, it’s a ridiculous charge, Matt. Those who oppose the Miers nomination have supported the nomination of a number of other potential female nominees whom they reckon more qualified than Miers. I, and my husband the President, feel that Miers is plenty qualified enough, but to suggest that her opponents are sexist, well, that’s just beyond the pale.”
Maybe Laura’s so grossly inarticulate that her best response to the charge of sexism against Miers’ opponents is the affirmation “it’s possible,” but if her ability to cogently answer such charges is that demonstratively poor, why on earth did the White House march her out to verbally spar with the likes of Matt Lauer?, it’s like throwing chum to a shark.
October 13th, 2005 at 9:36 am
XRLQ – had there been liberals hounding Roberts to withdraw on some idiotic ground, I’m certain that Specter, not to mention Cornyn, would have said something similar to what Leahy said here.
(Not that i think those asking Miers’ to withdraw are doing so for an idiotic reason; i’m merely unable to come up with a good theory under which Roberts could have been asked to withdraw. That said, I think the political response from his supporters would have been similar to the response from those who support Miers or are trying to keep an open mind about her.)
October 13th, 2005 at 9:37 am
Clark: I disagree. For all I know, the nomination of a similarly qualified male attorney named Harry Myers might well have sparked the same outrage, but then again, it may not have. We certainly wouldn’t have heard George Will drone on about diversity and identity politics. To claim as fact that Miers criticism has a sexist component would have been unjustifiable, but merely acknowledging this very real possibility as “possible” is not.
To claim that Laura Bush called Miers opponents “sexist” by acknowledging the possibility of sexism is every bit as silly as it would be to claim that Laura Ingraham called Miers herself “better than Scalia” on H&C the other day. Both Lauras used the same word – possible – to describe such possibilities. If anything, a stronger case could be made in Ingraham’s case, as she brought up that possibility on her own, with no prompting from either of the hosts.
October 13th, 2005 at 11:49 am
For a guy with language-Nazi tendencies (witness your “expletive” stunt in an earlier post), it surprises me that you wouldn’t know (or care) that “either” signifies a choice between two possibilities, not among three or more. :)
October 13th, 2005 at 12:56 pm
You have a valid point there, but you mentioned the Nazis so I’m invoking Godwin’s law and winning this debate by TKO.
October 13th, 2005 at 1:14 pm
Aphrael:
Similar, maybe, but I would hope not too similar. It’s one thing to criticize someone else’s statements as irresponsible, premature or whatever. It’s quite another to claim they shouln’t be “permitted” to speak their minds at all.
October 13th, 2005 at 4:32 pm
I don’t think that Godwin’s law applies to terms like “grammar nazi”, “spelling nazi”, or “language nazi”. As I use the terms – and observe them being used – they aren’t references to actual nazis.
October 13th, 2005 at 4:35 pm
XRLQ – I beg to differ. A judge circulating an initiative petition would not be judicial activism; it would be political activism engaged in by someone who happens to be a judge. On the other hand, a judge implementing the provisions of said initiative by decree as part of a court ruling would be judicial activism.
October 13th, 2005 at 5:15 pm
Aphrael, regarding #9 I was being facetious, else I wouldn’t be able to call you a “semantic nazi” over #10 now. It should go without that any act taken by a guy who happens to be a judge, on his own time, is not an act of judicial activism – or of “judicial” anything else.
October 14th, 2005 at 12:16 am
The fact remains that a number of highly qualified potential female nominees were strongly supported by those who oppose the nomination of Miers. This annihilates a ludicrous charge of sexism against those who oppose Miers not based on her gender, but on her relative lack of qualifications for the position.
Can it be that you still give any credence to the charge of sexism against those who oppose Miers?
Laura has said that she wanted her hubby to nominate a woman to replace O’Connor. Now THAT’S the very definition of sexism.
October 14th, 2005 at 9:11 am
The fact that some women were on everyone’s short list doesn’t “annihilate” anything. The question is not whether all of Miers’s critics are such hard-core sexists that they oppose any woman on the court, but rather, whether there is an element of sexism among some of them that may have caused them to come down harder on Miers than they would have on a male nominee with similar qualifications to hers. I don’t pretend to know the answer to that question, and I’m not convinced you or anyone else does, either. I do agree that the evidence isn’t there to support Ed Gillespie’s apparent allegation that sexism was involved, but that’s different from Laura Bush, upon being asked, acknowledging that such a thing is possible.
Riddle me this, Clark. Do you believe it is possible – not necessarily probable, mind you, but possible – that there is a racist element to many liberals’ opposition to Clarence Thomas? Or do you consider it “ludicrous” to entertain the possibility, given that all of Thomas’s liberal opponents supported his predecessor, Thurgood Marshall, who was also black?
October 15th, 2005 at 3:36 pm
Around The Sphere
What I’m reading now that I have plenty of time, ie not needing to study. Stuff is more interesting than what I write.
Maximus is one unhappy blogger, disillusioned with all political parties, they all seem to drift in a direction more PC, more…