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Tuesday, October 04, 2005

Miers Debate

Two blogging lawyers, both of whom I read and respect highly, have opposing views on the Miers nomination.

Carl of No Oil For Pacifists curls his lip in disdain, and explains why.

Beldar rebuts some of the claims against Miers here and here and here.

As for charges that Miers is not a conservative, I think she is a social conservative who will tend to be literal about interpreting the Constitution. If someone blinked here, I believe it was the Republican senators. Specter wanted Bush to delay any nomination until next year. Senators like McCain have made their priorities clear, and those priorities are to win crossover votes. They wouldn't fight for Janice Brown, and they darned sure weren't going to fight for another such candidate. Priscilla Owen took herself out of the running last week.

I agree with Beldar when he writes that we don't need some lofty constitutional theorizer to get a person that will function on the Supreme Court. What we need is someone who will take the text of it seriously. The lofty theorizers are the ones who have shoved us into our current constitutional quagmire. Beldar writes:
If you restrict Supreme Court nominations to those individuals who've spent their lives living in that rarefied atmosphere, pondering constitutional minefields to the exclusion of everything else, then you're going to end up with a Supreme Court whose members are out of touch both with America and with nuts and bolts legal practice. You're going to end up with a Court full of prima donnas who can't "just" concur, but instead feel compelled to write countless separate opinions. You'll often have no majority opinion, but instead special concurrences, partial concurrences, separate dissents, and partial concurrences only in Part III-D-6(f) but not Part III-D-6(g) of another's minority opinion. You'll get a Court that on the same day finds a display of the Ten Commandments constitutional in Texas and unconstitutional in Kentucky. You'll get a Court that takes up an incredibly important issue like redistricting, one that's splintered the Court in previous years, and then just leaves things more splintered when it's done. You'll get a Court that flip-flops within the space of a few years on issues involving capital punishment and what the government may or may not do in an attempt to promote morality. And you'll never see another unanimous Court like the one that produced Brown v. Board of Education.
I still think it would have been better to dump the gender requirement, but I don't think the Republican senators wanted to do that. Beldar has a very good point in the above passage. The Constitution was not meant to be an esoteric document requiring a twenty-year legal priesthood to interpret. Treating it that way is what has generated our current problem. See this post and the point about Breyer's "judicial philosophy", which amounts to the idea that the Constitution is whatever he thinks it should be.

Carl also has a point. But I seem to recall a lot of conservatives who were very disappointed in Roberts because he wasn't conservative enough. In my view Bush tried to address that with this nomination. The average individual is irked and appalled at the wild goose chase that so much of constitutional law has become. What is quintessentially undemocratic and absolutely unconservative is the idea that a couple of elite law schools espousing their own idea of the Constitution should have a lock on SC judgeships.

As for me, I don't believe for one second that Harriet Myers will ever buy into illogic such as Breyer's, and that is really what I care about. So I suppose for now I am in the "tentative approval" camp, with the codocil that the idea that a woman must be replaced by a woman doesn't satisfy me.


Comments:
If justice is blind, why do we require our candidates to telegraph their philosophies?

At some point, we have to trust our constitution more than we do the philosophies of Justices of the Supreme Court. In other words, we have to believe the Justices will do the right thing.

The country has not disintegrated into chaos, notwithstanding assurances to the contrary. Hollywood may reflect a more liberal elite, for example, but in the end, that didn't mean anything to the voters. Court jesters are just that- irrelevant in the real world.

Americans are a lot smarter than people think. Kelo will have a short life.

Just because a Justice is more or less liberal or conservative, does not negate their worthiness as members of the bench.
 
SC&A - I totally agree. What matters is how they regard law.

That's the real debate, not how they vote personally. Does the nominee think that the plain language of the Constitution means something, or doesn't the nominee?
 
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