Category Archives: General

More On Miers

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I have no respect for any Democratic senator who finds Harriet Miers’s nomination to the Supreme Court acceptable, such as Charles Schumer, Harry Reid and others. I understand why most Republican senators would support her – despite her utter lack of qualifications, she passes their religion/abortion tests. But how can a Democratic senator support her when she lacks any evidence of the intellectual firepower necessary to sit on the Court, and probably doesn’t agree with them on substantive issues to boot? I’m flummoxed, unless they’re pretending to like her in order not to give Republicans more reasons to support her.

I loathe this nominee. It’s odd that I find myself agreeing with people like George Will and Charles Krauthammer (BTW, doesn’t he totally look like Mandy Patinkin?), but I do.

Of course, I feel some schadenfreude watching many conservatives get as angry about this nomination as I am. But that doesn’t mean I don’t agree with them, even if my reasons are slightly different than theirs:

For more than two decades, conservatives have been developing a team of potential justices for the high court in preparation for a moment such as this. They point to jurists such as Judge J. Michael Luttig of the U.S. Court of Appeals for the 4th Circuit, Judge Michael W. McConnell of the 10th Circuit and Judge Priscilla R. Owen, newly sworn in on the 5th Circuit, as examples of people who have not just paid their dues but also weathered intellectual battles in preparation for reshaping the Supreme Court….

“The feeling was after John Roberts that surely the president was going to have to go to the bench where there were all these very excellent people who are serving on the circuit court or scholars who have been grooming for this possibility for years and years,” said Paul M. Weyrich, a leading voice in the conservative movement and one who has been openly skeptical of Miers.

Luttig and McConnell are highly qualified for the Court and I could respect them. But Owen? She might be intellectually qualified (is she? I don’t know), but she’s a major radical and I find her decisions odious. It’s Miers’s lack of intellectual qualifications and experience that concern me more than her purported judicial “philosophy” (if she even has one). Although that does bother me, too.

That said, she could pull a John Kerry during her confirmation hearings. Many people were surprised by John Kerry’s first presidential debate performance because they had built up all these preconceived notions about him in a portrait painted by the Republicans. It’s possible that Miers is a lot smarter than I’m giving her credit for.

But there’s no reason to believe that’s true unless there’s any evidence for it.

Harriet Miers was an awful, awful choice for a nomination. She’s completely unqualified to sit on the Supreme Court and her name should be withdrawn.

A Dirty Job

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I am beginning to think that I’m a social liberal but a judicial conservative, or at least not a judicial liberal. That is, I hold many viewpoints that today would be considered liberal (e.g. I support gay marriage, I am generally pro-choice on abortion), but I’m not completely comfortable with courts deciding these issues – even if I agree with the outcomes.

Roe v. Wade is a great example of a case that strengthened its opponents. So is Brown v. Board of Education; 10 years after Brown, most southern schools remained segregated, and the decision also led to a strong southern backlash against blacks. Roe and Brown were both morally correct decisions, but can anyone honestly argue that they were based on the text of the Constitution? (And Roe went into way too much trimester-by-trimester quasi-legislation.) As Nicholas Kristof wrote in the NY Times the other day, “court rulings can constitute fine justice and bad law.”

It’s a brain-versus-heart thing for me. Intellectually, I don’t like the idea of courts venturing into certain areas. The best way to accomplish social change is through legislation; when you rely exclusively on the courts, you bypass the dirty work of trying to convince society of your views, so you wind up with a good court decision and an angry populace. Not that social movements rely exclusively on the courts; they sometimes go to the courts only after the regular democratic process fails.

I guess I’d say that I’m ambivalent about what courts do with the Constitution. Sometimes I agree with what they do, and sometimes I don’t. And sometimes my view is that it’s a dirty job, but somebody’s got to do it.

Of course, hardly any of us are ideologically pure, not even those who claim to be. We’re all just human, after all, and our personal views can get in the way of our intellect. In the end, there are no ultimately right or wrong answers to these questions. In the end, there is no ultimate authority and we’re all dead. But it’s interesting to think about these things anyway.