Archive for October, 2005

More pointless and unproductive whining about Miers

October 26, 2005

I can’t believe how silly some of this stuff has gotten. Here, cross-posted for reference purposes, is my comment interchange from Two Minute Offense, where I agree with the core post, and take issue with some of the commenters, particularly one “courageous” person identified as “anonymous” and one Jeremy. Read their statements, but pay heed to Stan’s.
Oh, Jeremy- “I’ve yet to see any “personal attacks” against Miers”- go to Jonathan Adler’s posts at NRO where they make an extended point about how a typo in her questionnaire response (“contact” instead of “contract”- it is obvious that they had to rely on spell-check given the time) means she is too sloppy to be a SCOTUS justice when she is actually supposed to be meticulous, to see how petty the personal attacks have been.

And none of the opponents here have cited one specific documentably supported objection to the nomination. “Not conservative enough”? We simply don’t know. We can have ideas, but we don’t have actual evidence- the stuff about sending money to Gore, the feminist lecture series, and the Texas Bar affirmative action outreach (“quota”? Perhaps- ask the quesiton and don’t let her dodge it) are either already dealt with and well-explained, or we don’t really know yet and the answers will come from the hearings- if the SJC does its job.

Stan correctly points out that the Entitled Right Punditry immediately threw a giant temper tantrum when the nomination was announced and has been pounding on the floor and kicking its feet wildly ever since. And much of the commentary I’ve seen has been other unrelated recycled gripes, most of which are either incorrect, unimportant, fueled by ignorance, or are essentially unrelated policy differences (Katrina spending, steel tariffs, highway spending, drug benefits, immigration, etc.), giving the distinct impression that it was just time for us Real Conservatives to have a good cry over the fact that the American public and Senate are not enough in agreement with us so we get to have our own way about everything. I heard almost exactly the same caterwauling in 1986 and 1987 about another Republican president who now looks to have been a pretty good president.

The thing to do now is what we should have done several weeks ago. Dig for all the information we can find, publicize it without the side comments, let our representatives and lobby organizations know our well-supported views and concerns based on facts (e.g., send Sekulow a letter, enclose a $20 contribution), ask our senators to be sure that certain questions are answered appropriately (I could provide a list), and wait to see what the hearings turn up.If Miers looks bad, she will withdraw. If she looks good, she will be confirmed. If she looks liberal, the center-right senators will vote “no”.But the state of the “debate” to date has been appalling. The best comments on substance have been made by John Hinderaker and Paul Mirengoff at Powerline- go read their stuff.


Debates from ConfirmThem-dot-com

October 25, 2005

I posted a harmless little bit of commentary on a thread about JR Brown, and got shot at by “Andrew”. Here it is, for the record, from
16 Kurmudge Posted on October 24th, 2005 at 7:01 pm. About ‘JRB on SDP’.
No matter how much we want the Constitution to be specific enough to protect us from black-robed dictators diving headlong off the cliff before they can even get to the slippery slope, we can’t. Unless we turn the US Constitution into something as detailed as the EC nightmare, there will always be a need for an interpretive court to tell the government to knock it off, which it does well sometimes and less well at others (Kelo).

But how do we really preserve the basic fundamental rights of not being regulated by the government for everything if there is not some kind of recognition that we have inalienable rights not spelled out (because they were so obvious to the founders) in the Constitution, and had been called out just 12 years previously in the Declaration as being liberties endowed by the Creator? When voracious governments of all levels go nuts, someone has to call a halt. Yes, today the SCOTUS is as much at fault as is the legislature, but pretending that there are no natural law liberties is not exactly a way to preserve them.

The problem is not Griswold as described and justified by Harlan (NOT Douglas’ execrable opinion), but that the Court then threw off all barriers and started to act like a permanent Congress in Eisenstadt, Roe, etc. Each time they didn’t like a case, they made something up to justify it. That is STILL not a reason that we don’t have some kinds of “fundamental rights” that flow from our basic right to life liberty, and property. I think that that is where JRB was going, and decided not to get into the debate and the need to explain in one-syllable words the delicate difference between Griswold (some logic) and Roe (utter nonsense, with no pretense at Constitutional justification).

This is still, and will always be, a sort of dialectical balance to yank things back when they go too far off, as Rehnquist, et al did to the Commerce Clause in Lopez and Morrison.
And we STILL don’t know how Miers feels about this, despite all the heated rhetoric in the blogosphere. Time to stop bloviating and wait, make sure that somene on the SJC asks the right questions. If she answers sensibly, that’s all we can ask for unless we are sure she’s lying., Last time I looked, the President gets to make these nominations, and us fussing that he didn’t consult us enough is equally wrong as Chuckie-doll Schumer suggesting that he provide the list off of which the choice is made.
17 Andrew Posted on October 24th, 2005 at 7:10 pm. About ‘JRB on SDP’.
Kurmudge, who tells the British government to knock it off? The British parliament got along perfectly well prior to the Factortame case.

Basically, there are two kinds of judicial review: either the courts strike down only legislation that plainly conflicts with the terms of a constitution, or the courts have carte blanche to enforce what they deem to be the “spirit” of the constitution. Those of you who advocate the latter have two high hurdles: (1) the framers never intentioned such a thing, and (2) other countries have gotten along perfectly well without ANY judicial review, much less the carte blanche type that you advocate.
18 Kurmudge Posted on October 25th, 2005 at 12:22 pm. About ‘JRB on SDP’.

As you very well know, Andrew, the British government operates essentially totally on “political questions” that are, by definition, non-justiciable. And you know that we have a different system. And the issue here is separation of powers, particularly the tendency of the SCOTUS in arrogating for itself a lot more power than most of us who read this blog would believe is proper. I do agree with Black’s comment in his dissent on Griswold, even if I am sympathetic to Harlan’s actual opinion on that case.

But you still don’t address the fundamental question, it seems to me. We cannot spell everything out as the EC bureaucrats in Belgium are determined to do, and it is obvious that Thomas is the only justice who will rail against the unfortunate modern tendency to threat the 10th as a “truism” in his dissent on the term limits case. So we are left with the reality that something still has to be interpreted, and this ends up being in actual practice a push-pull battle to keep the Douglas-Brennan-Stevens-Souter-Ginsburg cabal from making it up as they go along when that irresistible mood strikes to be a Change Agent For Good, and preventing the Kennedy types from getting too enamored of their press clippings and listening to goofy clerks who like to read Swedish laws about “tolerance”.

I categorically reject your notion that the process of judicial review is a digital switch. Over history we went from Gibbons to Slaughterhouse to Darby to Lochner to (yecchh) Wickard to Lopez, etc.- not exactly a straight line of interpretive approach. And I fail to see where, by recognizing the same principles of review as CJ Roberts appears to accept, I am suggesting anything like “carte blanche” to legislate judicially.

Your comment suggests to me that you think that every law allowed to stand under the Commerce Clause that regulates something not directly crossing state lines (in other words, Marshall in Gibbons was dead wrong) is an example of unconstitutional behavior. Maybe, under the most restrictive interpretation of originalism, but that view is a non-starter in the real world, so much so that you won’t find any mainstream conservative seriously saying that the minimum wage laws, for example, can be struck down. The realistic approach was Rehnquist’s in Morrison, it seems to me. If we can maintain and extend that, we will do well. If we can kill Roe (and, please, the principle of “health” exceptions established by Doe and affirmed in Casey) dead once and for all so that the issues could be legislated appropriately, we ought to be delirious.

In practice appellate jurisprudence is a continuum, and we need to keep doing useful things to increase the spring pressure toward the right side. I’m not sure that trashing Miers to promote JRB (a personal favorite, I add) is helpful on that front.

Piling on Miers is getting ridiculous

October 24, 2005

This post at “Baseball Crank” prompted me to post a mild rebuke in the comments, cross-posted here for the record. The subject is Hugh Hewitt’s imputations of elitism to some of Miers’ critics (because she went to SMU rather than Harvard), followed up by him then actually invoking a little bit of an elitist tone in a follow-up response to a different criticism.

Hugh is on record as actually promoting an elitist mindset in his book “In, But Not Of”, where he advises young Christians to go to fancy schools, etc., to get with the crowd that has the influence on the world. Sort of like he did.

But though I think he has gotten a bit hyperbolic at times in his earnest defense of the Miers nomination, he has been a lot less so than Will, NRO, Prof. Bainbridge, or the other virulent commentators who are so unhinged by this that they have taken to criticizing the proofreading of her questionnaire responses for one letter typos as evidence of her unfitness for the job (

This would have been far better in every respect if those opposed had made their substantive objections known and then shut up, at least with the hortatorical invective, until there was something real to talk about. The first legitimate policy-oriented issue I’ve seen brought up is the Texas Bar Assn minority set-aside, which is a substantive policy matter that people can discuss, pro and con, in an adult manner.

But it was, and still is, demeaning to a distinguished attorney to say that unless she is an incompetent idiot she is supposed to remember the names of ConLaw cases (e.g., the 1920’s Nebraska case on German language instruction, etc.) that only law professors remember after ConLaw 1- you remember the concept, the ruling, but seldom the rationale or the case name. And there is absolutely no reason to remember it all, even for one going to the Court.

And to be apoplectic about her statement that Griswold was “correctly decided” is simply unfair, revealing more ignorance on the part of those protesting than Ms. Miers herself. I tend to agree that Griswold WAS correctly decided, while disagreeing with Douglas’ rationale. If you read the decision again, you can very consistently argue- with Harlan- that the state has no right, where we are “endowed by our Creator with certain inalienable rights… among these… life, LIBERTY…” (emphasis added) to intrude on the intimate affairs of married couples. That says absolutely nothing about Roe, which made no pretense whatever of any natural law or Constitutional basis. Harlan goes to the 14th Amendment, implicitly incorporating the originalism of the Declaration in declaring our independence from state interference in our daily lives. Where there is another life involved- as in a fetus- there is a state interest in protecting that helpless life. What’s not to like about liberty and morality, predicated on marriage, as the Griswold decision- not the Douglas opinion rationale- concluded?

The thing to do, still, is to see how she handles the hearings and the questioning. Ask her detailed questions about philosophy. If she refuses to answer, or gives answers you don’t like, vote her down.

But the current right-vs-right food fight has brought out the petty in everyone, and makes me ashamed to be a conservative. Some of these postings in various places sound, in form and even substance, like Daily Kos.

Is Harriet Miers Brennan, or Blackmun?

October 7, 2005

“Servant Disposition”, Skilled Manipulator, or anxious and scared nonentity?

Harriet Miers was not my candidate for the open SCOTUS seat; I threw the same kind of hissy-fit upon hearing about it as did many of my fellow True Believers. However, after reading all the fulminating outrage coming from many of them, it almost seems as though it is time to take a shower and move on. The outrage is a bit over-the-top, and seems to have as much to do with disappointment over missing out on a good cathartic fight as it does with any actual evidence about the nomination.

There is a lot of the current furious commentary, larded as it is with comments about the highway bill, Katrina-recovery spending, the steel tariffs, failure to veto appropriations bills, signing BCRA, and (drum roll) the ineffably evil act of keeping a primary campaign promise to add prescription drug coverage to Medicare (the latter shows up in virtually every post). Based on what we read, the desire for a “good cathartic fight” seems to be as much longing for a fight with Bush as with Harry Reid.

One factor that is never addressed, as the commentators slog down the list of judicial superstars they wanted to put into O’Connor’s chair, is that of roles on an effective team. Smart people, from athletic coaches and managers, to corporate gurus, to Saint Paul in the 12th chapter of first Corinthians (“14For the body is not one member, but many. 15If the foot would say, “Because I’m not the hand, I’m not part of the body,” it is not therefore not part of the body. 16If the ear would say, “Because I’m not the eye, I’m not part of the body,” it’s not therefore not part of the body. 17If the whole body were an eye, where would the hearing be? If the whole were hearing, where would the smelling be? 18But now God has set the members, each one of them, in the body, just as he desired. 19If they were all one member, where would the body be? 20But now they are many members, but one body. 21The eye can’t tell the hand, “I have no need for you,” or again the head to the feet, “I have no need for you.”), have discovered that an organization that pays attention to a range of roles and responsibilities and fills the essential holes usually accomplishes more than one exclusively staffed by superstars. This is emphatically not an argument for Hruskaism, the famed paean to mediocrity descended into by the late Nebraska senator while desperately trying to support the Supreme Court nomination of the unlamented G. Harrold Carswell for associate justice.

The most effective working group- which in this case means a center-right caucus on the US Supreme Court- boasts a variety of skills to fill a variety of essential roles and responsibilities. Thus far this debate over Miers has exclusively focused on two issues: 1) where does she stand on various Constitutional law positions, and 2) how can she be competent to deal with those issues given that she is not known as a Constitutional scholar in the way that law professors and appellate court judges are. The debate might be enhanced if we stop and look at a couple of characteristics of the Court and of those persons who have been most effective, and thus left a lasting legacy (for better or worse) in their service on the Court.

When I was young, I recall a lot of angry talk about the Supreme Court by conservative people, and the object of the enmity was Justice William O. Douglas. This ire at Douglas actually midwifed a lot of half-baked, but sort of serious proposals to “Impeach Douglas!” He was the target of the barbs, and the reputed source of all the Godless and Immoral rulings to protect communists, outlaw Bible-reading in schools, and the like. Interestingly, he retired in 1975, and the Court didn’t make any sudden correction toward more sound jurisprudence. And the liberal legacy of the Court didn’t start in 1939 when he took his seat on the bench. Why?

Because these things require teams, not just visible superstars- and superstars are important, provided that they can operate in a group dynamic without being narcissistically counterproductive. If you are uncertain about this, think of a football team with 11 superstar defensive ends. They will still be outrun by the fast tailbacks. Any real team needs to field all the different positions. To the extent that the luminously intelligent and articulate Justice Scalia is successful in shifting the Court in his direction on some matter, it was likely at least as much because the late CJ Rehnquist had quietly maneuvered such a result by taking care of a lot of little things in the background as it was because Justice Scalia debated the issue in the conference with rapier-like logic.

Marvin Olasky has been widely ridiculed for approvingly posting a statement at the World magazine blog to the effect that Miers’ “servant mentality” would serve the country, and the Right, well at the Supreme Court: “According to a source in her Dallas church quoted by Marvin Olasky, Harriet Miers is someone who taught children in Sunday School, made coffee, brought donuts: ‘Nothing she’s asked to do in church is beneath her.”

The question that should be asked, as we all fulminate over Michael McConnell and Michael Luttig, is whether the conservative wing of the Court would benefit from adding someone who is less debater and more water-carrier.

The best water carrier in Court history was probably William Brennan, whose 34 year tenure fell just short of that of his then more notorious colleague. I doubt that there is a Court historian around today who would not agree that the unabashed liberal who had the most impact on the Warren Court and its successors was the previously little-known, certainly not particularly impressive state supreme court justice from New Jersey. As David Yalof, UConn political science professor and expert on Supreme Court nominations put it in the Christian Science Monitor ( “No one could possibly have thought in 1956 that William Brennan was on the top 100 list of people to become a justice of the Supreme Court,” Yalof says. “At the time of his appointment, William Brennan…… was far and away not considered the most reputable justice on his own court. “Was he qualified?”

Tony Mauro, in Legal Times ( explains why the most effective style is not necessarily brilliant argument: “’They don’t argue cases at conference,’ says one former Court clerk. ‘Kennedy and Scalia would say early on, ‘Wait, we need to discuss this,’ but Rehnquist would tell them, ‘This isn’t a debate society”. Mauro went on to explain why Brennan had been effective with his personal relationship style, while Chief Justice Roberts’ formidable skills of debate may not necessarily be the defining issue compared with his pleasant demeanor. The same factor may apply to Harriet Miers based on the roles she has had to play over the last 20 years in many situations infused with challenging group dynamics.

The best exposition on this phenomenon with regard to the Court and the way Brennan worked to move the agenda without flash or visibility is Bob Woodward’s 1979 book about the Burger Court, The Brethren. More than any other treatment, that narrative shows how Brennan’s causes were moved forward- through Brennan’s tireless, behind-the-scenes maneuvering and personal lobbying. The most interesting case in point was the cultivation and apostasy of Harry Blackmun. Just take the book, and in the index under “Blackmun”, go to “and Brennan”, and you will see how the senior Justice spotted Blackmun from the beginning as a timid person who hated to be the person on whom everything rested. He took his chair at the end of the term, and dreaded having to make the decisions about certiorari on a large pile of cases that had three justices already signed on.

Brennan saw Blackmun as one whose insecurity could be manipulated, and he set his plans to do so. The process by which that occurred, the significant shift by one insecure and frightened justice away from his philosophical roots, and his long time friend (Chief Justice Warren Burger, friend since childhood, wedding participant, and the reason he had been nominated for the Court at all) toward media lionization and the creative exploration and discovery of privacy penumbras, is an fascinating tale that may offer a very different take on the current situation.

The single most over-invoked point of the current discussions of Miers has been the solemn recitation of the mysterious ways of constitutional law. National Review’s Jonah Goldberg made an illustrative comment that appears to reflect that common misconception ( “Here’s the trap. Miers by all accounts is tireless at doing her homework. If she does show up at the hearings and can actually duke it out over the fineries of constitutional jurisprudence, the Democrats will have no place to go (and, I might add, neither will many conservative critics). This might mean Miers is in for the Mother-of-All-Cramming-Sessions.”

This is a common misconception, and very popular in print these days. The truth is, on those constitutional law subjects, Miers will need about one day, if any, of brush-up coaching and reminders from any competent professor; I suspect that Mr. Hewitt would be happy to help. Any first year law student can go in front of Senator Biden and quote exhaustively from “Griswold” and “Doe-Bolton” about privacy, “Lopez” and “Morrison” about the Commerce clause, “New York” and “Prinz” on federalism, and so on.

The key is not the debate- every party who ever took a Con Law course knows the issues in those cases like the ingrown nail on his left big toe. The deciding point is not nuances of Article II, it is persuading an undecided someone else, for reasons that often have little to do with legal matters, to go along with your position on a particular case. That happens more often through personal interplay that has little to do with the Constitutional mysteries.

I seriously doubt that Justice Brennan won very many battles by applying superior, as Charles Krauthammer put it, “constitutional jurisprudence …. exercise of intellect steeped in scholarship.”

In Blackmun’s case, it had more to do with an old friend, Burger, who, as portrayed in the book, was a bit self-absorbed and took Blackmun for granted as an ally, and Brennan, who saw a chance to use his personal skills to pump up self-esteem of the insecure man and win a permanent and ever-more-reliable ally. Brennan didn’t care who got the ink or wrote the opinion- just the so he got the vote for the precedent he cared about. Woodward’s description of the patient seduction of Blackmun, on Roe v Wade, to move from trusting the Mayo doctors’ medical judgement regarding abortion, to writing an opinion that effectively authorized legal infanticide, is classic marionette manipulation. You don’t have to like the result to admire the craftsmanship. Like Reagan, Brennan cared more about results than about credit. Burger was the opposite, an image person who loved the cameras.

So, what does that suggest we should watch for when Justice Miers takes her seat on the Bench? Will she be a Brennan- a stolid behind the scenes rudder helping to steer a large ship in her preferred direction? Or a Blackmun- a nervous and uncertain cipher with regard to the causes near and dear to the hearts of President Bush’s “base”, currently in near revolt? A team player on a good team, as she has been for her life thus far in the law? A team-focused provider of synergy and steady progress rather than a mercurial leadership?

Her nature and style have been described both ways by people alleged to be “in the know”. And she could turn out to emulate either predecessor, and still make conservatives very happy if she allies with the right mentors on the Court. The inference is actually high that she will gravitate toward those with whom she is comfortable, most conspicuously, the new Chief Justice. If he is the person he is reputed to be, that is good news for the Right. And, after the justice’s philosophy in an area of appellate law is established, the leg work is done by clerks, and if she selects clerks the way she helped to select appeals court judges, the President’s base has no cause for complaint.

On the other hand, David Frum has described Miers as “a taut, nervous, anxious personality”, likely to succumb to the seductive Washington leftward temptation and abandon her roots, whatever they are (, seeking approval. Knowing nothing whatever firsthand, and having infinite respect for Frum, it still doesn’t appear to be obvious that she is a Blackmun. In fact, it would appear most unlikely that she would tend to work closely with Justice Breyer or Stevens as her “Brennan”, if indeed she subconsciously seeks a mentor on the Court in the manner of Blackmun.

If she is the person President Bush appears to believe she is, she may well herself be the next Brennan, with views that are more popular with conservatives.

We shall all see.

Why Miers? It may be simpler than you think.

October 4, 2005

The dismay on the right over the Miers selection to the SCOTUS, which I philosophically share, may be a bit more histrionic than necessary in light of one logical scenario.

Suppose Bush’s issue in getting a true “movement conservative” justice confirmed is not that a Democrat filibuster would block a vote. Suppose that the Senatitis sufferers (that word is a tribute to the Dr. Johnson of our day, James Lileks) who actually wish to dictate the selection are Specter, Snowe (who voted against Rogers-Brown and made a speech criticizing her opposition to abortion as the primary reason), Collins, Voinovich, Warner, et al? Suppose that when Bush consulted the Senate regarding this nomination he discovered that his own party was likely to betray him, because of the truism- there are liberal Republicans, but when it comes time for a party-line vote, there is no such thing as a conservative Democrat now that Zell has retired.

Therefore, he did the only thing he could do to still meet the objectives- selected a stealth candidate who only he knew, but also knew he could trust on the key issues.

By the way, regarding age and prospective longevity on the Court, remember that Miers’ mother is 93. She could still stay there for 20 years.