Centerfield

Of course, we do realize that if W had nominated someone like, say, Bork in drag, then Dobson, Ryun, etc. would be insisting that "it's the President's perogative to appoint the nominee he wants" and silencing any and objectors with screams of "TREASON!".

Ahhhh, a little irony is good for one's blood....

Isn't irony a dietary requirement?

Bork's argument, of course, comes right back to the "Bush owes us, and we want him to pay up" line. The rest of the commentary follows much the same line. They've worked hard, they deserve the battle they crave!

"Deserves got nothin' to do with it."
--Clint Eastwood, UNFORGIVEN

I am more and more supporting this nomination just because the conservatives opposing it are idiotic... Furthermore, I think the right wing back lash could help Bush politically, which may have been the point.

Why is what Bork says important at all... Do even conservatives listen to him anymore? Bush's approval rating shot up five points in the last Gallup poll, it will be interesting to see if it does so again this week, which would put him back around the 50% mark again.

Mathew
"I am more and more supporting this nomination just because the conservatives opposing it are idiotic..."

I find it very, very difficult to take that seriously. Harriet Miers has been appointed to a lifetime slot on the Supreme Court. She has no judicial experience, and no paper trail indicating she has ever thought on any serious level about constitutional questions. You, my firend, have accrued a longer public record on constitutional law by dint of your posts to centerfields than this woman has accrued in three decades. Put simply, she is as much, or less, qualified to sit on the Supreme Court as Ann Coulter. Doesn't that worry you at all? Doesn't that embarrass you that the President has nominated someone based on the following credentials: a) she's my pal, b) I think she's conservative and c) she's an evangelical! That's it! Those are her qualifications! Doesn't it embarras you to say that this woman is just as qualified to sit on the Supreme Court as Steven Breyer?

We have a generation of incredibly smart people, liberals and conservatives alike, who have spent their lifetimes studying and theorizing about the kind of legal issues that come before the Supreme Court. And then you have Harriet Miers, who has been a lawyer for three decades. This is like asking a nurse to perform brain surgery; nurses and neurosurgeons both work in medicine, so surely a nurse is qualified to stick sharp objects into your brain; why not, right?

And the President is effectively telling us, "here's my nominee to the Supreme Court; no, you can't know anything relevant about her, just trust me on this one. Are you really willing to sign your name to that?

Here's the question. Here's the million-dollar question. You have to have open-heart surgery. You have a choice between your friend, a nurse who you have known for over a decade, who you know to be a good Christian woman, but who is still merely a nurse. Or, you could have any one of the top twenty cardiologists in the country, although you've rarely if ever met any of them. Who do you pick? Be honest. Who do you pick? The nurse, or the heart surgeon?

You are barking up the wrong tree... I wouldn't have picked her to sit on the Supreme Court, and believe that there are probably many, many others more qualified than her. You can argue about a paper trail up one side and down the other until you are blue in the face... A lack of paper trail or judicial experience means absolutely zilcho in regards to determining whether or not Miers will be a good judge, I hate to offend all of the lawyers out there, but there is a huge difference between a heart surgeon and a judge... One can be done by someone with intellect and drive, but little experience, and the other one has to have specific training and practice. I'm sorry, but that is just the way I see it, and I think history is on my side with that one.

However, you failed to grasp my point. I don't feel I have a strong enough understanding of who Harriet Miers is to say whether or not she should be a SCJ. My point, rather, is that since her appointment the wing nuts have shown their true colors... Nothing but a bunch of knee-jerk, disloyal, are way or no way, whiney, elitist, entitlement bunch of ideologues. What is most laughable to me is that Miers just may be Tony Scalia in a skirt, but that isn't good enough for them.

The way I see it, W is getting what is coming to him. Time and time again their strategy has been to please the right at all costs while leaving moderate Republicans dangling in the wind, and now they have been slapped in the face by the cut and run/scorched earth crowd. I hope Karl is happy.

I have no control over the Miers confirmation, but if she is confirmed over the objections of this group that has become such an embarrassment to the Republican Party, than I will laugh my ass off with a clear conscience.

Mathew,
I don't know how to have this arguement with you. We are talking about appointing to the highest court in the land, for a period of twenty years or more, a woman whose sole qualification is that she is an evangelical who has worked for President Bush. That's the scope of her qualifications! And you're willing to cut of all our noses to spite our faces, just because its fun to watch Republicans argue amongst themselves?!

That is a bit dramatic... Again, I said I wouldn't have picked her myself and am not sure if I would even vote to confirm her. But yes, I am enjoying watching the right squirm.

I still wonder if all this sturm and drang from the right is just a head fake. Dobson cleared her and quite frankly I think that says enough as far as the Christian right is concerned.

Simon,

I think you're overstating her lack of qualifications because you don't think she's an originalist. If she came out with lots of originalist rhetoric, would you be talking up her heading the Texas and Dallas Bar Associations and her advising the President of the United States on constitutional questions?

One thing that has me wondering is all the conservative pundits coming out against this. Should I admire their not blindly following the president as they have seemed to have done until now? Are they sticking to their ideals? Or are they simply responding to what they think the sentiments of their readers are to maintain echo-chamber loyalty?

Hey Simon? Your "sole" qualification is a dual. Andas WHQ points out, the "scope" of here experience is a wee bit broader than that.

Remember, Simon, millions of people voted for Bush. Some were originalist or otherwise interested in changing the Supreme Court to be more conservative. Most weren't though.

Did we really expect Robert Bork a vocal, academic, conservative to say anything else?

A plea to Democrats, don't support her just because it will "piss of the Religious Right".

A question for Democrats, GW didn't fulfill your suspicion that he would nominate a rigid conservative because he owed it to the Right. Does that no deserve at least a little bit of positive reinforcement or is it more about "points scored"

c3 sez:
> GW didn't fulfill your suspicion that he would nominate a rigid
> conservative because he owed it to the Right

What suspicion? I was pretty sure he wouldn't nominate theocrats. Though I was pretty much at sea beyond that.

So Jon your answer whether GW deserves any amount of positive reinforcement is "No"?

A question for Democrats, GW didn't fulfill your suspicion that he would nominate a rigid conservative because he owed it to the Right. Does that no deserve at least a little bit of positive reinforcement or is it more about "points scored"

Actually Bush has had quite a bit of positive reinforcement from the lefties on this. Heck..Miers was recommended to Bush by Harry Reid.

I honestly don't have what I feel is an informed enough opinion on the woman. There is certainly a lot of conflicting information out there on her. I'm in the process of collecting articles to read and write about.

Either way I suspect she'll get through and be seated. But as someone who enjoys watching political theatre..this one definitely merits popcorn and Junior Mints.

Hmm, if enough judicial ultra-conservatives yell loudly enough that this is a sinking ship, will that make it so? I have my doubts. Simon's laundry list reads like 50% safely ignorable, and 50% groups eager to mirror the views of the staunchly conservative. It's pretty safe to presume that the WSJ and National Review know who its customers are.

I honestly don't have what I feel is an informed enough opinion on the woman...But as someone who enjoys watching political theatre, this one definitely merits popcorn and Junior Mints.

Mark your calendars, folks! Carla and I are in 100% agreement on those points.

Pass the popcorn, indeed.

What I will find particularly amusing will be the way the Dems go after Miers in hearings.

Smiling faces, smiling faces Sometimes, they don't tell the truth...

Well, as Billy Joel sang so many years ago....

The stranger...
isn't always evil,
And he is not always wrong.

I'll go back to literature of a sort.

Remember that your enemy is never evil in his own eyes. --Robert Heinlein

Some thing I've preached forever are the corollaries. Just because they're on the other side doesn't mean they're evil. (And just because they're evil doesn't mean they're on the other side.)

Personally I don't think those friendly Dems are so much happy with Miers as they are really happy with the spectacle of the GOP beating itself up. And I'm positive that much of their smiling is due to NOT having to go into a full-court press against a McConnell or Luttig or Owens coming into the recess with mid-term primaries looming. If Miers thinks the Dems will go easy on her because most of the noise so far has come from her own side, I suspect she may have a big surprise coming. We'll find out in the hearings.

Exactly. As the saying goes The enemy of my enemy is my friend.

Except, of course, when she isn't....

If we keep this up, Jean, we're going to be mistaken for Zen Discordians. ;-)

I don't support Harriet Miers, not b/c she's pro-choice (I don't care about that) but because, to be on the Supreme Court of the United States, *it helps to have some damn experience in interpreting Constitutional law*. Miers has none, zero, zilch. Would you pick a neurosurgeon who'd spent his career as a psychiatrist before his first operation? Would you choose an architect for your hotel whose only experience was building model train sets?

I dislike Bush and the ultra-conservatives and I'd be only too happy to have another liberal on the court. Still, I don't want someone who's not suited to the position. No matter what she says in the hearings, she lacks the experience for this job. The Democrats and Republicans should unite in defeating her nomination.

Would you pick a neurosurgeon who'd spent his career as a psychiatrist before his first operation?

It's not brain surgery, Reckless. (Bless you--I've always wanted to have a good reason to use that line.)

As many have pointed out (including in the thread comments above) the Supreme Court has a broader mandate than just Constitutional interpretation. The complaints about wanting an "expert" in the job are fairly hollow in this regard when coming from people who complain that Ivory Tower liberals have led the law off into the wilderness of unreality, becoming increasingly divorced from the real-world results of their theoretical flights of reasoning.

To explode the "surgery" analogy entirely, let's make it more apt by turning it around. What if your choice was between a general surgeon with three decades of hands-on experience in actual operating rooms, or an academic theorist who's never actually operated on a patient, but spent their career criticizing other doctors' performance in rounds reviews and journals?

Zen Discordians? Buddha forbid it! ;-)

It's not like Miers has zero legal experience; true, she went to a state university rather than an Ivy League school, and she clerked for a district court rather than an appellate court, but there are thousands of lawyers out there that have done the same. Tully probably knows the congressmember who said it better than I; "Average people need representation too."

She went to SMU in Dallas, which is actually a private school. BA in Math, and JD. She later helped fund and start the Raggio women's studies lecture series at the college.

She's also headed the Texas Bar Association, chaired the editorial board for the American Bar Association Journal as well as the ABA Commission on Multi-Jurisdictional Practice.

PS--It was the late Senator Hruska of Nebraska who said that, about mediocre people needing representation too.

Of course, he was ranking minority member of the Judiciary Committee at the time, and he was arguing for Nixon's nomination of Carswell. A lost cause if ever there was one. Not even Republicans cried when Carswell went down in flames.

"I don't care what you do with me, Brer Fox, says he, "Just so you don't fling me in that briar patch. Roast me, Brer Fox, says he, "But don't fling me in that briar patch."

"It's so much trouble to kindle a fire," says Brer Fox, says he, "that I expect I'd better hang you," says he.

"Hang me just as high as you please, Brer Fox, says Brer Rabbit, says he, "but for the Lord's sake, don't fling me in that briar patch," says he.

"I don't have any string, " says Brer Fox, says he, "Now I expect I had better drown you, " says he.

"Drown me just as deep as you please, Brer Fox," says Brer Rabbit, says he, "But please do not fling me in that briar patch, " says he.

"There's no water near here," says Brer Fox, says he, "And now I reckon I'd better skin you," says he.

"Skin me Brer Fox," says he. "Snatch out my eyeballs, tear out my ears by the roots," says he, "But please, Brer Fox, don't fling me in that briar patch, " says he.

Of course, Brer Fox wanted to get Brer Rabbit as bad as he could, so he caught him by the behind legs and slung him right in the middle of the briar patch. There was a considerable flutter when Brer Rabbit struck the bushes, and Brer Fox hung around to see what was going to happen.

By and by he heard someone call his name and 'way up on the hill he saw Brer Rabbit sitting cross-legged on a chinquapin log combing the tar pitch out of his hair with a chip. Then Brer Fox knew he had been tricked.

Brer Rabbit hollered out, "Born and bred in the briar patch. I was born and bred in the briar patch!" And with that he skipped out just as lively as a cricket in the embers of a fire.

Of course, Carswell was an embarrassment. Thanks for the quote, Tully!

Sometimes I think that what really ticks the fundies off about Miers is that she's a) a woman who works outside the home and b) she's sixty, but never married. Now I ask you, what kind of example is that to set for the girls?!!!?? ;-)

Lol, BJ! Great point. These liberal women have forgotten where their place is...lol.

Seriously, just reading the list of those who are so adamantly opposed makes me want her on more than ever. Of course, the cynical side of me wonders if its all smoke and mirrors.

I'm just trying to imagine a similar reaction if Bush had nominated Ashcroft from the conservative wing. You'd never hear them discuss qualifications. In truth, that's not what this is about. This is about a litmus test--what they slam the left for wanting.

Of course it's about a litmus test. That I am really on the side of the originalists may not come through, but I am. I'd just like to see some more honesty in the objections, and some acknowledgement that, like it or not, there are political and party considerations that WILL play a role. It's all well and good to say that fighting the good fight is its own reward, but the GOP moderates who might lose seats from a fractious floor fight would disagree.

There's a very practical split between the originalists, and the religious right. The RR doesn't give a damn HOW their goals are achieved. If achieving them meant pitching the Constitution entirely, many would do so without hesitation. The Constitution is meaningless to them as long as it gets interpreted their way.

For the most part the originalists (and myself) are tired of seeing Constitutional debasement by fantastic interpretations. If it doesn't mean what it says, it doesn't mean anything at all. There is a process to reform it, if the political will is there, one that has been shown to be workable in our history. "Reforming" it through psychic discovery is not that method.

There is a process to reform it, if the political will is there, one that has been shown to be workable in our history. "Reforming" it through psychic discovery is not that method.

Tully, what do you say to the notion that there's possibly a burgeoning gap between theory and practice here? I'd go so far as to say I agree with much of originalist views in theory, but I acknowledge that it's very possible that the nature of our culture may be making amendments harder and harder and harder, and that the subsequent rigidity may not in fact be evidence that the constitution has reached relative perfection. Maybe another 50 or 100 years would have to pass to make this argument compelling, but there's an underlying point there about how past results are no guarantee of future performance.

IMO, it's at least possible that a 100 or 150 year constitutional stasis might foster the triumph of venality. Whaddaya think? Don't tell me ya gotta have faith now! :-)

I would say that there's always a gap between theory and practice. The Constitution is hard to change precisely because it should not be changed lightly to suit the fashion of the moment--much less rendered obsolete by judicial fiat. Society will continue to evolve (or devolve). We have all eternity ahead of us. What's the rush?

The big protest of the RR is that judicial activists have forced social changes against the will of the majority and the legislatures. (Note that this doesn't say the changes are good or bad, just that they have been forced through judicial activism, where the Constitution relegates that fucntion to the legislature.) The related protest of the originalists is that said judicial changes are simply not justified under the Constitution. They're both right--the difference is that the RR would object to the changes even had they been properly done through the legislature. An originalist (theoretically) would accept the acts of the legislature if they did not violate the plain language text of the Constitution.

I'm not sure how venality crept into the debate, but venality "triumphed" before the written word. The Constitution can neither stop it, nor speed it. If society can fit inside the plain words, great--there is no need for change. If it can not, then it will be obvious to enough people that it can be amended. Note that society and the law are not the same thing at all.

Which is why I fought so long and hard against the anti-gay marriage amendment in my home state. Society is moving (rapidly, in historical terms) to acceptance of marriage in all forms as a private affair between consenting adults. The law will evolve to match if society so wishes. The amendment would just be another legal barrier, and a massive one, to taking the law out of people's private affairs. Fortunately what passed is so badly worded that it will likely be thrown out on grounds of rights infringement before the "same gender" question even becomes involved.

The natural inclination of conservatism is (as William F. Buckley said half a century ago) to stand athwart history, yelling "Stop!" The natural inclination of liberalism is to push the boundaries, to attempt to whip history into a higher gait without considering painful lessons learned through long suffering. Which is why I'm a centrist. I think either position as doctrine is stupid, even when they may be correct regarding specific issues at specific times.

Conservatives want to lock us in stasis. Liberals want to rush blindly. Centrists want to think about it, and move deliberately. The Constitution as worded supports centrism more strongly than the other two, IMH & AO. So I fall in the originalism camp.

That didn't really answer my question but maybe it wasn't explained clearly enough.

What I'm sugeesting is that there's no reason to think that the constitutional mechanism has gotten it exactly right, other than by looking to what weve seen so far and comparing those results to other systems. And gittin faith as a result.

What I see in originalism is the presumption that if mechanisms for change in the constitution are not fulfilled, then they therefore should NOT be fulfilled. There's really no way around acknowledging that this deifies the constitution in a very significant sense.

Why did I bring up venality? I was trying to suggest that in a more complex nation of evermore subcultures, we'd be too balkanized to fulfill the sorts of requirements for change that the constitution requires. (all those two thirdseses)The hardcore originalist responds to this by saying that would be as it should be. No two thirdseses, no changeses. ). Gridlock due to balkanization might well make it easier for venal impulses to triumph; we'd have stasis, atrophy, entropy.

Of course, I've no real reason to think that venality functions better in an environment of stasis than one of change, other that suspicions about how power works. Power loves stasis for accruing evermore. I think maybe entropy is what I'm really concerned about. Scientists always say its inevitable, and leave it at that. It's always troubled me, it's not a hopeful concept, IMO.

I have troukle with the implication of originalists that we are and indeed should be entirely locked in by the constitution. It reminds me of the song everyone from Boston knows, where poor Charlie is stuck on the MTA because he doesn't have a nickel to get off.

You answer really does suggest a faith, when it claims that sufficient will will emerge when the nation needs it(you didn't say exactly that, but you know what I mean). I'm not even all that bothered by the notion of faith in the constitution and in our form of democracy. I was just wondering if you had anything else BESIDES that.

I don't give two craps what Kristol and his ilk say. People are listening to and putting stock in a guy whose boss once was Dan Quayle? That group of "conservative pundits" mentioned who oppose the Presidents selection of Miers can drive off a cliff while riding the short bus...they and the Religious Right are the downfall of the TRUE Republican Party. They aren't Republicans at all in the correct sense of the term...
The Republican Party, in its original form, was created by people who believed in the freedom of the individual to set his or her own path. The Republican Party, in its original form, grew rather quickly upon its inception into the most successful political party in America's history relative to elected officials across the board. Regardless of the Dan Rathers, Larry Kings, Walter Cronkites and Barbra Streistands...this rapid growth the Republican Party took and the successes it has achieved was not by mistake. The Republican Party, in its original form, dictates that the individual is responsible for him or herself. It stands for self-reliance, freedom, doing what one deems is right for them personally within the boundaries of sensible, logical laws for the masses. Senator Barry Goldwater put it best when he said..."keep the government out of your pocketbook, out of your bedroom and off your back.". The Republican Party, in its original form, doesn't care if two consenting adults of the same gender want to get married...doesn't the government have better things to do than worry about what two homosexuals in Topeka want to do in their bed? Who cares? The Republican Party, in its original form, doesn't want the government to support through American citizen's tax dollars a person who'd rather belly up to the bar than work. The Republican Party, in its original form, doesn't believe the United States should be the planets police chief. For some reason however the Republican Party was hijacked in the 1980's by deep pocket moralists; ie, the Religious Right (see Falwell, Robertson, Dobson of today---for my money the only nationally recognized religious leader worth his salt is Dr. Graham and he's never moralized relative to politics---maybe that's why more people have traveled to hear him in person than all the other "religious leaders" put together). The American electorate has made a transformation over the past few years. They like a little of this, and a little of that...that's why a centrist by the name of Senator John McCain is the most popular politican in America. The Republican Party better get it's head out of the sand and get back to its roots supporting people like John McCain for President in 2008, in the vain of Jefferson, Lincoln, TR, Robert Taft, Ike, Bob Michels, Jerry Ford, (can you name a NATIONALLY recognizable and continuosly successful Republican in American history, besides President Reagan out of ALL of them, who wasn't a Centrist? You give up? You wonder why you can't???) or they're gonna end up losing their prominence if they continue to allow Dobson and his crew to puppeteer people like Delay, Hastert, Brownback and Santorum into deciding that THEY know what is best for Americans more than Americans do. That's not the original Republican Party...that's Nazism.

There's no reason to think democracy has gotten it exactly right, Brian, or that any government system ever will. I prefer loose to straitjacketed. What annoys me about reading things into the Constitution that aren't exlicitly there is that it cheapens the whole, and restricts the many for the sake of the few, and is just plain dishonest. But you can get lectures on originalism from others better qualified to comment on the subject. My point would be that those "penumbral" expansions are so often not actual expansions of the rights of the many, but "extra" rights for the few that actively impose upon and reduce the rights of the many. Kelo, for example.

There is NO provision in the Constitution for the judiciary to change the Constitution. None. If it can be changed at will by the unelected, what point is there to it? It is either fundamental, or meaningless.

There is NO provision in the Constitution for the judiciary to change the Constitution. None. If it can be changed at will by the unelected, what point is there to it? It is either fundamental, or meaningless.

Right. But what I'm really talking about here is the necessity of occasionally interpreting it, due to the fact that its not exhaustively detailed nor is it always 100% clear. Judges sometime have to decide what it means, and the claim of originalists that "it means what it says" is simply not always helpful. I think it's a really big overstatement, and the favored big lie of hardcore originalists to claim that interpretation as as it has been practiced is equivalent to letting judges "change it at will" as you put it.

I do think judges need to be "bound" by the constitution, and virtually every scotus judge acknowledges being bound by it in one way or another. But I think there's a ton of real estate between "entirely bound" and "unobstructed," and it's all directly related to constitutional clarity and detail, or the lack of the same. I disagree with Kelo too, and it points out the dangers of judges who don't feel very bound. But I still think that the scotus has for the most part worked very tolerably well over the years. Far more than either the executive or legislative branches, I've found their decisions and actions wise and meritorious.

BK,

I don't think too many origionalists would argue that there is no room for interpretation in the Constitution.... I certainly wouldn't. There are alot of cases where how it should be applied and interrupreted may not be exactly clear from the text. That's not at odds with an origionalists philosophy.

The difference between you and I, is that I see way to many justices choosing to ignore what the Constitution actualy says when the meaning is plain and clear and enact what they want DESPITE what the Consitution says. I see way too many examples of Justices paying nothing more then lip service to being bound by the Constitution and then turning around to do whatever the heck they want anyway. I see Kelo increasingly becoming the rule... not the exception.

The difference between you and I, is that I see way to many justices choosing to ignore what the Constitution actualy says when the meaning is plain and clear and enact what they want DESPITE what the Consitution says. I see way too many examples of Justices paying nothing more then lip service to being bound by the Constitution and then turning around to do whatever the heck they want anyway. I see Kelo increasingly becoming the rule... not the exception.

I'm willing to admit the possibility that you're right. But I'm unpersuaded without citations of such examples, and the count of such decisions appearing in the numerator of a fraction with "total cases" in the denominator. I notice judges finding ways to do what they want from time, but I think its very far from being the rule instead of the exception. I've said multiple times I don't agree with the Kelo decision. But that's the only one that ever gets named. It certainly deserves to be the centerpiece for originalist objections, but what else ya got?

All of this "therefore the constituion means absolutely nothin:" barbarians at the gate hyperbole makes me laugh. I just don't see it.

You're right, Brian. If it can still be used as a screen to do whatever you (as a judge) feel is right, it's not meaningless. It's still good as a smokescreen. :-)

Tuilly, if it isn't the scotus justices themselves deciding what it means to be "bound" by the constitution, based on careful study and a thorough versing in the many facets of a historically lively debate, then who?

And if little or no weight is given to the precedents set by previous scotus decisions, doesn't that foster a different sort of meaninglessness, one in which the constitution means what the last guy to rule decided it means? The constitution itself doesn't mention the virtue of predictability, but surely most acknowledge the virtue of a system where it would be very rare that a judge could just say "ok, the last 3 decisions made by the last 4 courts were all wrong about what the constitution allows. Article x doesn't mean y, it means z."

I'd say that when SCOTUS goes in the face of elected officials, they should be able to come up with better reasons than invisible "penumbras."

But as I also said, if you want to debate detals of originalism and SCOTUS, I'm really not the guy. It gets too deep too quick. I'm no Harriet Miers, after all....

;-)

Maybe someone can point me to laymen's executive summaries of the 5 or 10 best concrete examples of crappy expansionist rulings and why they are demonstrably bad for us as a nation right now at this very moment (as opposed to being bad because they are leading us down some slippery slope blah blah blah).

Excluding Kelo, of course, since I am already familiar with and troubled by Kelo. Simon? Cengel? Pat if he ever has time to get back?

Good idea--many of the "activist" decisions that folks whine about the most were lower court decisions that SCOTUS did not review. For whatever reason.