Thursday, October 27, 2005


The Miers nomination: the right was wrong

yeah, I heard. I have a different take on that than most "conservatives"...I'd rather have Bush pick someone he's pretty confident he knows, as opposed to a) another "Souter" off a list who looks qualified and seems to lean "conservative" or b) a bona-fide well-documented right-wing ideologue who will not be confirmed anyway. "Conservatives" like to forget that the Republican Senate majority includes social moderates and liberals who are not going to support an obvious hard right-winger.

I have a real problem with the way "conservatives" have acted on this. Many of them have made it quite clear, while laboring mightily to make it appear otherwise, that what they really want is a right-wing ideologue, a conservative judicial activist. I'm a strict constructionist, and no more interested in having "conservative activists" than "liberal activists". I'm for a "judicial self-restraintist". I liked Rehnquist, who tried, with varying degrees of success, to push the Court back to a more "federalist" and less "nationalist" orientation.

I also think the right has done exactly what they've been complaining about, bitterly and justifiably, for years. Just like the left, they now think they should insist on an "ideologically" acceptable candidate, with a "paper trail" made available for inspection. Sorry, that's what the left has been doing to block judicial appointments, it's wrong for them and it's just as wrong for the right.

I think the hard right is becoming as detached from reality as the hard left.

First, there is no massive voting group called "conservatives" that "elected" George Bush. Bush, in both 2000 and 2004, in places like Ohio and Florida, Arkansas and Missouri, pulled an awful lot of votes from Reagan Democrats - these voters are neither anti-abortion nor libertarians, they're very much middle-of-the-road on balance (and many are, on "social" issues, a bit left-of center).

"Conservatives" didn't elect Bush, but they came darn close to electing Gore by not bothering to vote, or wasting a vote on Buchanan, in 2000.

Second, the "conservative" label is being applied as if it refers to a monolithic block of right-of center voters. In fact, there are two much smaller blocks of "conservatives" - religious conservatives and personal liberty conservatives (and a large block of “sort of” conservatives). Their interests are not only not always identical they are sometimes diametrically opposed. The recent Supreme Court case on assisted suicide is a perfect example. "Liberty" conservatives will see it as a states' rights issue, the federal government should butt out. Religious conservatives see it as a "respect for life" issue, and think the federal government should prohibit the practice.

The right-wing blather about her "not being qualified" was a smokescreen to try to avoid coming out and admitting they want a demonstrated ideologue. These are, after all, the same folks who piously insist that what they want is strict construction of the letter of the Constitution. The Constitutional qualifications for the Supreme Court are...absolutely none. No previous judicial experience, no legal professional... nothing. The idea wasn't to appoint "great legal scholars", it was to appoint people with common sense and good judgment, as determined by the President.

While many of the Founders were lawyers by education (if not really by trade...most were career politicians) most had little or no use for the long-tenured legalistic pseudo-scholar judges of the British court system. Remember, at that time equity jurisdiction was still maintained strictly separately from legal jurisdiction, the law courts and processes having been rendered so technical and hair-splittingly "scholarly" as to be useless for most purposes. I have a hunch the Founders would see our overly academic and legalistic federal judiciary in much the same way.

Miers was obviously no idiot. And as for not being a Constitutional "scholar", just once I'd like someone like her to sit at the "deliberations" table and say, to all those “constitutional scholars” , something like "I'm sorry, but where does it SAY THAT in the Constitution?"

The "qualification" issue is a non-starter. She was at least as qualified as Rehnquist or the 1/2 of the last 100 nominees who had no judicial experience. And surely as "qualified" as another guy criticized as "mediocre" who got the nomination through "cronyism". That guy was John Marshall, and heck, he turned out OK.

Well...that's surely more of a response than you were expecting!

[sent as an e-mail in response to an e-mail asking if I’d heard Miers withdrew]

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