Miers: Is that all there is?
By Jeremy Schupbach jshoebox@mac.com
Conservatives would be wise to be cautious in their support of the President’s nominee for Supreme Court Justice. The jury is out on whether Harriet Miers will be the strict constructionist, federalist justice in the mold of Scalia or Thomas; the kind of justice that President Bush promised to nominate. Too little is known about Miers.
What are her credentials? She is touted as a consensus builder, a pioneering woman in the field of law, an “elected member of the Dallas City Council” and head of the Texas Lottery Commission. Miers is an unknown quantity, with a surprisingly light resume. Her law degree is from Southern Methodist University; she is hardly the intellectual appointment that conservatives expected. That’s not to say that she’s unqualified. It just suggests that, compared to other names that must have been on the President’s short list, her nomination seems, well, less serious. John Roberts has an impressive resume; Miers has a resume.
On face value, it appears that Miers was picked because she is a personal friend of George W. Bush, and because she was a woman he felt comfortable with. And that may be the heart of the matter for those who are disappointed with the pick. Miers’s nomination smacks of favoritism and not commitment to larger principles – principles conservatives will fight for, and hope that Bush will too. Some would say that she got the nod because of cronyism. Miers was the safe pick. This was the pick of a President looking to duck a fight rather than throw a punch for the values on which he campaigned.
This was Bush’s opportunity to name a bona fide conservative and change the balance of the court. This was his moment to show the courage and personal strength that has shaped his foreign policy. This was the moment conservatives hoped would repay their dedication and loyalty of the last 20 years.
In part much of the initial disappointment was because Miers was a safe pick. Conservatives were looking for a fight. We were ready to support a Luttig, an Owens, an Alito. We were eager to have a stage to debate the direction of the courts and the danger that an activist court represents. We wanted a piece of Harry Reid, Ted Kennedy and Chuck Schumer. They’re wrong, we’re right, and this was — in the minds of many — supposed to be the moment we proved it. This was a shot at the title.
But the Miers nomination denies conservatives this debate. If conservatives rally behind the President’s choice — and the jury is still out on that — it won’t be because we’re defending the principles we cherish and she defends well. It won’t be because her belief in the supremacy of the original intent of the framers is well documented. No, it will be on the trivial and the insignificant. The truth of the matter to many conservative minds is that the nomination, and the hearings to follow, will likely deny conservatives the high ground we have worked 20 years to gain. And that is disappointing.
There are of course no givens with Miers. Her supporters are quick to argue that we should trust the President. She may turn out to be a great justice in 10 years. She may turn out well — there is no way to know that yet. And that is the problem. We should know now, or at least have some solid evidence, but with Miers there is no evidence. After so many years conservatives are looking for evidence — and the evidence is scarce.
The author can be reached at John@BackBoneAmerica.net
Jim Windham of Houston, txpilgrim@houston.rr.com,
wrote this in his monthly print journal, The Texas Pilgrim, just before Roberts took office and Miers was nominated. It makes painful reading today:
BUSH’S HISTORIC OPPORTUNITY
As I write, John Roberts is about to begin his tenure as the 17th Chief Justice of the U. S. Will he preside over what can be described as the “Roberts Court”? This remains to be seen, but the critical next step is for President Bush to solidify Roberts’ leadership with a bold appointment of another Justice in the same mold or, even better, one that is more of a “movement” natural law enthusiast similar to Clarence Thomas. Would this result in the use of the so-called “nuclear option” in order to break an expected Democratic filibuster? Maybe, but bring it on. If not now, when?
After the Roberts hearings and the confirmation vote, the bright dividing line in competing judicial philosophies is absolutely clear. The Senate Judiciary Committee Democrats on the left of this line were totally revealing on this point, as evidenced by their inquiries. Listen to Richard Durbin: “…beyond loyalty to the law, how do you view the law when it comes to expanding our personal freedom?” Beyond loyalty to the law, Sen. Durbin? Are you kidding? (I wish that had been Roberts’ response.) And Dianne Feinstein, in announcing her “no” vote, said she was disappointed when, with respect to the issues surrounding end of life decisions, she asked him how he “feels” as a husband, father, or son, and received only a “detached” answer. (Much like we should expect of a judge, Sen. Feinstein?). These inquiries epitomize the jurisprudence of the left and the captivity of the Democratic Party to it—total constitutional incoherence.
In fact, the most striking phenomenon throughout the Roberts confirmation hearing was the degree to which it seems that our entire public discourse is being driven by the fealty to complete personal autonomy and a generalized “right to privacy”, the concept that was created by the Supreme Court out of “the emanations and penumbras” of the Constitution, in other words, out of whole cloth, and which later drove the Roe v. Wade decision. As a result, as so well noted by Hadley Arkes in his book, Natural Rights and the Right to Choose, the Democratic Party has become the party of the courts, has completely prostituted itself to the privacy/abortion lobby, and demands that the judiciary continue to alienate itself from a central mission of the jurisprudence of a republic—the protection of human life.
As a follow up to one of Sen. Durbin’s questions on loyalty to the law, Roberts made an instructive statement. He said that he had been asked, “Are you going to be on the side of the little guy?”, and his answer was, in effect, that whether the little guy or the big guy wins a case will depend on which one the Constitution says should win, because his loyalty is to the Constitution. This is a refreshingly direct affront to the philosophy of John Rawls and his A Theory of Justice, the liberal “bible” of distributive justice for almost forty years. You want to know whether John Roberts will preside over a “Roberts Court”? He will if he has a sustained majority on the Court for the point of view embodied in his answers to Durbin, Feinstein, Schumer, et al, and this is why it becomes even more imperative that Bush follow up boldly on this once in a lifetime opportunity to transform our jurisprudence.
by John Andrews | Monday, Oct 10, 2005 | 7:55 pm