Anti-Miers Questions
Hugh Hewitt probably won’t answer these questions so allow me.
1. Some conservative/Republican pundits/bloggers honestly believe Harriet Miers would be, for various reasons, a bad Supreme Court Justice. Do you believe those pundits/bloggers should (a) state their concerns publicly, (b) keep their mouths shut, or (c) support her anyway?
A. However, those pundits/bloggers who are merely following the crowd and doing the trendy thing should STFU. I voice no opinion as to which pundits/bloggers fall into which category; I’m merely pointing out that both categories exist, and if you have to ask which camp you’re in, it’s probably the trendy group that should STFU.
2. What issues are important enough issues to justify taking an active stand against a Republican president or Republican congressional leaders? Are there any such issues, other than the war?
There are too many such issues to list, so I’ll limit my answer to nominations. Some nominations, such as ambassador to Derkaderkistan, do not matter. Others, such as Fed Chairman, matter a great deal. Supreme Court nominations are very important, as well, albeit less so since you’re only nominate one of the nine at any given time. [Yeah, they're lifetime appointments, but how much that matters varies inversely to the nominee's age.]
3. Is the GOP worse off because John Tower’s nomination for Defense Secretary failed and he had to be replaced with Dick Cheney?
Probably not. Your point? The GOP certainly is worse off because Robert Bork’s nomination for Supreme Court Justice failed and he ultimately had to be replaced by EdwardAnthony Kennedy. Seeing as Miers has been appointed to the Supreme Court rather than as Defense Secretary, the latter question seems more apropos than the former.
4. Is the GOP worse off because Republicans and conservatives – pundits, bloggers, and elected officials alike – participated in forcing Trent Lott to step down as GOP Senate Majority Leader?
No. Your point?
5. Is the GOP worse off because Ronald Reagan ran a primary campaign in 1976 against a sitting Republican president who then lost the general election by two points?
No. Is there a point buried in here somewhere? To save time, I might add that the GOP also is not worse off because John McCain ran a primary campaign in 2000 against the guy who is now the sitting Republican President. Or maybe it is worse off, but only if by doing so, McCain displaced a better challenger who would have actually beaten Bush and governed to the right of him – a long shot given the political landscape in 2000, but you never know.
6. Does it matter if a Supreme Court Justice does not write clear and logical opinions?
Yes. It also matters, albeit to a much lesser degree, if a blogger writes a series of confusing, contrived questions that don’t go anywhere.
7. Does it matter if a Supreme Court Justice does not know constitutional law well enough to avoid writing opinions in one case that will have unexpected bad consequences in other cases?
Certainly. If you have any evidence Harriet Miers falls into that category, I’d love to see you produce it. I don’t doubt you have that evidence already with respect to several sitting Justices, but alas, there isn’t anything we can do about that except sit around waiting for them to die (or, in Justice Stevens’s case, to admit he’s been brain-dead for at least a decade).
8. Even limiting the search to lawyers in private practice who have not been judges, and judging by the standards of legal reasoning and persuasive argument, is there any reason to believe that Harriet Miers was in the top 50 or 100 best lawyers in this country? If not, does it matter that she is not?
Judging by the various rating companies, she probably is among the top 100, and certainly is among the top 500. Given the insanely large number of lawyers in this country (even I am allowed to practice law in two states, for Chrissakes), the latter matters, the former does not.
9. Please cite examples of Harriet Miers’ [sic] writings that demonstrate an ability to write and reason clearly. If no examples are available, please explain why we should believe that such examples will be forthcoming before her nomination will be put to a vote.
I don’t know the procedure for pulling briefs in cases she’s argued, but I presume you could find them if you really wanted to. I’m assuming, of course, that your question is sincere rather than rhetorical. If it’s rhetorical, piss off.
10. What concrete, relevant information do you believe we will gain at the hearings regarding Harriet Miers’ qualifications and philosophy that we do not already have?
A clue as to what her judicial philosophy is, how well she knows the basic case law, etc. We only have one friggin’ hundred Senators, one-quarter of whom are sworn to oppose any Republican nominee any way they can. If these guys can’t make her look bad, it won’t be for a lack of trying. As Dafydd asks, I ask too: are you afraid she’ll do badly in the hearings, or are you afraid she’ll do well? If the former, WTF do you stand to lose by waiting and seeing?
11. Do you believe that continuing to tout Miers’ gender will, if she is voted down or withdrawn, make it impossible for President Bush to consider a male nominee?
No. In case you’ve forgotten, it was originally supposed to be impossible for Bush to appoint a man to replace Justice O’Connor the first time. He did it once, if need be he can do it again – though I shan’t complain the next time around if he opts for Janice Rogers Brown or Priscilla Owen instead.
12. Do you believe that continuing to tout Miers’ religion will, if she is voted down or withdrawn, make it impossible for President Bush to consider a non-evangelical Christian nominee?
No. Again, what is the point, or does that very question assume a fact not in evidence?
13. Do you believe that it is important to have an evangelical Christian among the Justices? If so, why is this different from other religious tests, and is it proper for nominees to be questioned about their religion?
No, it’s not important, all religious tests are wrong, and it’s not proper to question nominees about their religion.
14. Are Harriet Miers’ personal beliefs on abortion relevant to your support for her? If so, is it proper for nominees to be questioned about their personal beliefs on abortion?
Yes. In theory, a judge’s personal views about abortion should not matter. In practice, pro-choice judges have a nasty habit of being so insanely pro-choice that they can’t imagine why anyone else might see the issue differently, and ultimately delude themselves into thinking the Constitution guarantees a right to abortion. And I’m saying this as a pro-choice individual myself. If anti-abortion judges were running around claiming abortion was unconstitutional, then we’d have an equal and opposite problem in the opposite direction. They’re not, so we don’t.
15. Of the three, which should the #1 goal in Supreme Court battles: (a) getting Justices who produce good results, (b) getting Justices who follow good legal reasoning, or (c) getting Justices whose confirmation provides political benefits to the party?
A.
16. How important is it that Roe v. Wade/Casey be reversed?
Extremely important.
17. Which five precedents do you think are in most pressing need of reversal?
- Roe v. Wade /Casey v. Unplanned Parenthood / Stenberg v. MissIWannaKillMyKidDammit
- Wickard v. Filburn /Raich v. Ashcroft
- U.S. v. Miller – but I’d settle for a clear reversal of the lower courts’ idiotic “collective rights” cases that purport to apply it.
- Kelo v. New
MoscowLondon - Roper and the related ‘tard case whose name escapes me at the moment.
18. Would you be satisfied with another Justice just like Lewis Powell? Potter Stewart? Warren Burger? Anthony Kennedy? Sandra Day O’Connor?
No.
19. Do you believe that a significant portion of the GOP base is unhappy with the Miers nomination?
Yes.
20. If not, do you believe that the pundits/bloggers who are openly critical of the nomination – including Rush Limbaugh, National Review, The Wall Street Journal, Bill Kristol, Laura Ingraham, Charles Krauthammer and George Will – are important parts of the GOP’s ability to win public issue debates and elections?
I do, so I technically shouldn’t answer this, but yes, I do believe they are important, albeit a bit less important than many of them (particularly George Will) seem to think they are.
21. Do you believe that the GOP is currently heading for a successful 2006 election cycle if it keeps doing the things it has done in 2005, or is a change of course needed to motivate the base and persuade swing voters?
The former. A change of course on certain issues – namely extreme spending – would be desirable, but I’d be lying if I said it was necessary for the GOP to do well in upcoming elections. The last few election cycles suggest precisely the opposite.
22. Do you believe that a defeat for Miers would make it less likely that candidates with no paper trail will be nominated in the future, just as Bork’s defeat make it less likely that candidates with extensive paper trails and well-known public positions would be nominated? Would that be a good thing?
Maybe, but it would be a small consolation unless other, much stronger reasons against her nomination were to emerge (e.g., lack of competence). I also think that for all the crapola about a paper trail, the main reason Robert Bork wasn’t confirmed is not anything he’s written about anything, but simply the fact that he looks like Herman Munster.
UPDATE: OK, this issue is moot now.
October 27th, 2005 at 12:55 am
I answered over at baseball crank’s site.
Sometimes the quiz says more about the quiz maker than the one taking it.
October 27th, 2005 at 1:50 am
You big-hearted man, you! :-) Such helpful generosity from one who claims no dog in this fight:
Um, okaaaay, except for your previous admission to having already “officially move[d] into the camp of presumptively supporting her.”
If you are neutral, your blog isn’t. Hugh would doubtless give the balance of your Miers coverage a solid “B+”.
October 27th, 2005 at 7:06 am
George: good answers. I’d link to them, but Baseball Crank doesn’t appear to have comment permalinks. Oh well.
Clark: I’m not sure what your definition of “neutral” is. Mine is supporting vs. opposing Miers’s appointment and, barring its withdrawal, her confirmation. I am neutral on that, and will remain so until any information surfaces that gives me a good reason to believe she either is or is not likely to be a good Supreme Court Justice. You may interpret this as pro-Miers, but at least one of the anti-Miers guys at ConfirmThemHaHaJustKidding.COM actually interpreted this blog as an anti-Miers fellow traveler. So if certain posts are less than 100% neutral, I think I’ve flipped and flopped enough on the issue to make both me and the blog pretty neutral, overall.
The one thing I am NOT neutral on is the question of good vs. stupid arguments. That’s why I am neutral on the Miers nomination, but I am not neutral on the anti-Miers histrionics that have plagued op-eds and the blogosphere over the past few weeks. I’ll admit there’s a side of me that would almost like to see her confirmed just to make David Frum cry, but it’s not worth it in the end if she isn’t going to be a good Justice.
October 27th, 2005 at 7:39 am
Thanks for taking the time to answer, granting that all this got mooted shortly thereafter.
A few responses:
re: #3-5, Hewitt has basically argued that the GOP would necessarily be damaged by Miers being defeated, and suggested that we should all always fall in behind party leadership. I cited examples of a defeated nomination that made the party stronger (Cheney oversaw the Gulf War, ended up as VP and was replaced in the House leadership by Newt) and examples of the party benefitting in the short and long term by staging internal battles.
re: #6-7 & 9, I wanted to clarify that Miers proponents were just not interested in quality or knowledge, just presumed results. And yes, I would have liked to see someone pull the briefs. But the evidence had passed the tipping point showing she was a bad writer with little experience with constitutional law. That was the deal-breaker to me.
re: #8, I’m talking about quality as a lawyer. Those magazines were talking about influence, and their main evidence of that influence was her close ties to Bush.
October 27th, 2005 at 8:59 am
If you’re more interested in results than reasoning, then you really don’t have a leg to stand on when criticizing those liberals who are more interested in results than reasoning.
October 27th, 2005 at 9:01 am
The problem with #3 is that it’s asking us to divine whether or not Reagan’s opposition to Ford in the 1976 primary caused Ford’s defeat in the general. I don’t think it did, which is why I answered no, but then again, I was only 9 in 1976, and may have a very different perspective if I was old enough to seriously follow politics at the time. If Reagan’s opposition caused Ford’s defeat, then the GOP is a hell of a lot worse off today than it would have been if Jimmy Carter had never been elected. To this day, Carter continues to undermine U.S. foreign policy abroad in a way he never could have done without cloaking himself in his ex-Presidency. We dodged a bullet WRT the Supreme Court, but not in the appellate courts, particularly the Ninth Circuit, another Carter-gift that keeps on giving. So there can be no serious question that the GOP, or right-thinking Americans, are worse off than they would have been if Ford had been President from 1977 through 1981.
Regarding 6, 7 and 9, while I was never really a Miers propopent as such, I plead guilty as charged. Patterico seemed to think we need another Scalia on the court. I don’t. We’ve got one already. Another would be nice, but not essential. What IS essential is getting enough votes to turn the average Scalia dissent into a majority opinion.
Regarding 8, so am I. If there were any serious doubts as to Miers’s qualifications to be a lawyer, she wouldn’t be on those lists, which rely at least as much on her pre-Bush experience as what she has done since crossing paths with Bush 20 years into her already-distinguished career. Even David Friggin’ Frum acknowledges that she’s a competent lawyer and would make an excellent trial court judge. The jury’s out – and will now remain so in perpetuity – as to whether or not she would have made a good Supreme Court Justice. The only that is crystal clear in my mind is that Bush made a political mistake in appointing her directly to the Supreme Court rather than to an appellate circuit, where her nomination would not have gotten so “miered” in controversy, and then attempting to promote her to the Supreme Court when the next opening arises a few years later if all goes well in the interim.
October 27th, 2005 at 9:50 am
Aphrael:
I don’t. The difference is which results. The substantive result I care about is that the Constitution be applied correctly. The substantive result judicial liberals care about is that a politically liberal policy be implemented.
October 27th, 2005 at 2:17 pm
This one’s tricky. They type of question about their religion is important in determining whether or not the question is appropriate. I don’t see anything at all inappropriate about asking a candidate whether s/he is willing and able to hold the law of the land (the Constitution) over personal religion if the two should ever be in conflict. Someone who cannot is unqualified, period, and I wouldn’t want to be precluded from asking the question.
Now if you start getting into nitty-gritty details about specific religious beliefs, I’d agree that this would be inappropriate.
October 27th, 2005 at 2:29 pm
Fair enough, but we do still have a problem with anti-abortion judges. Rather than arguing that the right to privacy does not include the right to an abortion (which I can understand, even if I don’t agree with it), these justices generally argue that the right to privacy is not constitutionally protected at all (which I have problems with — but I don’t expect us to agree on this).
On the abortion issue, just so I can understand, your position is that abortion is not protected by the federal constitution, and that regulation thereof should be left to the states, but that said states ought to keep abortion legal? I ask because you call yourself “pro-choice,” but much of your rhetoric sounds awfully similar to “pro-life” rhetoric.
The apearance certainly factored in, I’m not going to deny that, but I think that the main reason he wasn’t confirmed is because most people in the country — and the Senate — at the time simply thought he was nuts.
October 27th, 2005 at 2:31 pm
TGirsch-8:
I agree. I consider that a question about one’s judicial philosophy (“Will you apply the law, or the tenets of your religion?”) rather than the religion (“What are the tenets of your religion, which you shoudln’t be applying anyway?”). I guess I’d have to make an exception for any religion that specifically requires its adherents to apply their religion rather than secular law if appointed as judges.
Then again, I can sort of understand the idea that having one evangelical protestant Christian on the Court would not be a bad idea. Genuine diversity of thought may serve the court well, and diversity of religious background is one aspect of that. In that case the answer would be that it’s different from other religious tests in that the goal is religious diversity, which is different from requiring all government officials within a given branch to conform to some religious orthodoxy. Then again, if that really were the goal, I think a better case could be made for appointing an atheist.
TGirsch-9:
I think “at all” is an overstatement, i.e., all Justices would agree that certain privacy interests are protected by the Third Amendment, others by the Fourth, etc. However, many anti-Roe Justices would argue – correctly, IMO – that no part of the Constitution provides a general right to privacy.
That is correct, as to first-trimester abortions. If I sound pro-life it’s probably because we’re usually discussing either the constitutional issue, or late term / partial birth abortion, which I do oppose. If science, technology, cost, etc. ever make it realistic for women to have first-trimester fetuses removed intact rather than killed, then raised by someone else at their own expense with no further contact to their biological mothers, I’ll probably turn 100% pro-life then. IOW, given my druthers, I’d be BOTH pro-life (don’t kill the fetus) AND pro-choice (don’t make a woman carry an unwanted fetus in her body against her will).
October 27th, 2005 at 8:43 pm
This was very funny.
October 29th, 2005 at 11:17 pm
Xrlq:
Perhaps “except where explicitly listed” would have been a better way of wording it. But “at all” is close enough for purposes of this discussion. Their jurisprudence usually amounts to the only privacy rights you have are the ones explicitly listed in those amendments, ninth amendment be damned.
I think that probably describes most of us, except for the extreme edges of the pro-life/pro-choice debate. In my perfect world, no woman would ever get pregnant unintentionally, no woman would ever face a health risk from a pregnancy, etc. But we don’t live in a perfect world.
October 30th, 2005 at 10:10 am
If by “damned” you mean “interpreted according to our best guess at what its drafters intended,” then perhaps so. Bear in mind that even Griswold and Roe do not hold that there is a Ninth Amendment right to privacy generally, nor to abortion or birth control specifically.
October 31st, 2005 at 7:24 am
What, precisely, is our best guess as what its drafters intended? My understanding (which could be wrong) is that it’s essentially a catch-all, to cover the shit they didn’t think to list explicitly.
October 31st, 2005 at 10:09 am
First, I don’t think the Ninth Amendment was intended to constitutionalize any particular rights, so much as to head off the “X is not mentioned in the Constitution so it cannot be considered a right under any other theory, either” argument that some of the opponents of the Bill of Rights had feared. If it was intended to constitutionalize any such rights, “shall not be construed to deny or disparage” is pretty strange way of saying that. Second, if the Ninth Amendment was intended to constitutionalize any particular rights, it its limited by its terms to those rights “retained” by the people, i.e., those rights that the people were generally understood to possess at the time. I could see the argument that the Ninth Amendment should be deemed to “incorporate” individuals rights protected by the Magna Carta, the common law, or any other generally understood rights guaranteed to Englishmen prior to the Revolution. I can’t think of any remotely plausible theory that would stretch it far enough to cover privacy in general, or abortion in particular. If anything, the fact that two other provisions of the BOR do address specific privacy issues suggests that if the Framers did intend the Ninth Amendment as a catch-all for issues they hadn’t thought of, privacy was not among the issues they hadn’t thought of.
October 31st, 2005 at 11:55 am
Remember, at issue here is privacy in general, not abortion in particular. As stated above, I can respect the position that the right to privacy does not extend to abortion, while I cannot respect the position that said right simply doesn’t exist.
And again, the framing of the fourth and fifth amendments seems to assume some expectation of freedom from government intervention.
October 31st, 2005 at 12:08 pm
Right, with respect to the subjects addressed by those amendments. But I see no basis for implying any greater privacy rights under the Ninth.