It falls to Justice Kennedy

I don't really like the idea of refusing to publish a comment which disagrees with my point of view, provided it's respectfully phrased. Still, to each their own, I suppose.

Since Pandagon are unwilling to approve comments that dissent - even those with a respectful tone - I'll go ahead and post my comment here instead. My blog, my prerogative! :p

Mr. Justice Alito!

My first last and only post on "plamegate"

I have not followed the actual "plamegate" story, insofar as it appeared then and appears now the summer silly season's second least-interesting non-story (just behind the summer's least interesting non-story, sheehangate. For those counting, the other three contenders in the top five "least interesting non-story" were: lettermangate (he just isn't funny any more), kittengate (a bit of an anomaly this one, in that it was actually of interest, relatively speaking: one of our kittens nearly died and spent four days in hospital) and dessertgate (I just couldn't work out whether I wanted pudding or cake).

In any instance, I read today that there is, in fact, no need to follow the actual story. The indictment of Scooter Libby does not relate to the crimes the Grand Jury was charged with investigating, but rather, Libby's conduct in relation to that inquiry, namely, perjury.

How apt. There may or may not have been an original crime, but in the course of the investigation, crimes were committed for which indictments were issued. Doesn't this all sound rather familiar? High government official caught perjuring himself before the grand jury? Why, yes, it does! In any instance, I argued that Clinton should have been impeached (indicted, even) for perjury, so I can hardly now say that Libby shouldn't be indicted. On the other hand, no liberal can really say that he should go to prison, since Bill didn't exactly serve a sentence (although, in fairness, I would argue that being President of the United States probably does constitute cruel and unusual punishment for any sucker dumb enough to take the gig).

I respectfully decline the invitation to join the (apparently, group) hallucination that this business is actually interesting.

The anti-war lexicon

I can't resist re-posting these translations from The Fast Squirrel:

Handy Dandy Translation Guide For Anti-war Protestors

Nuance: Opposition to United States policy. Often expressed in simplistic terms.

Peace: The complete lack of action from the United States no matter how many must suffer or die.

Dissent: Wearing costumes.

Crushing of Dissent/McCarthyism: Publicly disagreeing with someone more noble. Publicly pointing out flaws in the arguments of those more noble.

Censorship: Only appearing on TV 5 times a week instead of the full 7.

Days of Action: Movie where Tom Cruise met Nicole Kidman.

Facts: Things that get in the way of Truth.

Truth: Something that must be believed regardless of facts. Example: 5,000 civilians were killed in Afghanistan. Did not actually happen, but the US wanted to kill that many and more so that means it is truth.

Racism: Thinking non-whites shouldn't have to live under oppressive, murderous tyrants.

Solidarity: Public nudity to tell those who would be stoned for public nudity that, hey, we care because we're naked.

Multilateral: Doing what the French want.

Unilateral: Going forward without the support of the New York Times.

Oil: When it ain't the Jews, it's this.

Militant: Anyone who kills a member of the oppressive power structure.

Last words on Miers - a roundup

Originally posted at Centerfield.

I had been in Indianapolis all day, and in communicado at that, and therefore only learned the joyous news of Miers' departure on arriving home this evening. The Hotline has the whole sordid timeline. For the record, kudos must go to Charles Krauthammer, whose sword she either fell - or was pushed - onto. The sense of relief is palpable.

While not wanting to retread ground previously covered by Rick, I cannot resist adding my two cents.

[I apologize in advance if this does not seem entirely "centrist," although I cannot fully articulate the delight at a commenter here at Centerfields offering a good rationale a couple of weeks ago as to why my seeming hard line stance on Originalism and otherwise moderate approaches are less of a Jeckyl-and-Hyde transformation than I had thought.]

In any case, to do so, I will cannibalize a few entries from my own blog. First, there should not be any lack of clarity on my position on Harriet Miers. I was sceptical from the word go, and explained why in two posts here and here. I defended the need for a Justice who was pursuasive rather than just a vote here, and scepticism finaly gave way to outright hostility 10/7/05 here. Her unceremonious withdrawal (or, more accurate, if less kindly, the delayed realization that her highly speculative nomination had disintegrated on contact with reality) in the face of impending rejection by the Senate is a victory for none, a defeat for a few, and a relief for everyone (except the Democrats, who, needless to say, are now beginning to canonize Miers in anticipation of a Michael Luttig or Edith Jones nomination).

It is not a victory, in the sense that one would not usually celebrate preventing a friend from making a fatal mistake by shooting him in the leg as a "victory;" it simply is what it is, and what was done was what was necessary. But it is not yet a victory in a more important sense: the goal of the anti-Miers forces was never limited to kericking (or, if necessary, borking) her nomination. While different opponents had different goals, mine was always fulfilment of the President's campaign pledge to appoint Justices in the mold of Justice Scalia (who, incidentally, has a very fine book review just released in First Things) or Justice Thomas. The champaign corks will pop here only when Bush nominates - and the Senate confirms - such a Justice, regardless of what color their skin is, what their religious beliefs are, what gender they are, or which school they went to.

Laura Ingraham is right to point out today that "[i]f the President bows to...pressure and shies away from a verifiable judicial conservative, we will be back to square one;" or, as Captain Ed gracefully puts it today, "[n]ow can we nominate a candidate whose qualities and track record presumes we control the Senate?" Quite. I would add, could we have a nominee who does not imply that conservatives are so ashamed of their legal philosophy as to refuse to publically defend it, so much so as to disavow membership of the Federalist Society as if it were the League of Shadows? In that vein, it seems to me that Dahlia Lithwick - albeit, doubtless, with a heavy heart (Lithwick being not just pro-choice but pro-Roe) - offers the best-case scenario for the post-Miers world:

"[With the Miers nomination] movement conservatives weren't willing to settle for a coded message anymore. They have built up a strong and capable stable of thinkers and jurists who are not speaking in half-promises or symbols. And they wanted a nominee with the brains and brawn to overturn Roe because it's bad law rather than just because it's "a sin." The code also didn't suffice because the right had heard the same coded promises about Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter—and had dejectedly watched them go on to uphold Roe. Sick and tired of ambiguous messages and middle-of-the-road nominees, they would not be placated by anyone who wasn't willing to say, as are Janice Rodgers Brown or Priscilla Owen or Edith Jones, that Roe must die now.

John Roberts was the last wink, or coded nominee, the far right will ever accept...[I]t's a big win for honesty, and that may be, in the end, a good thing."

"[GOP judicial nominees] should be going in [to Senate confirmation hearings] and calmly, dispassionately and respectfuly explaining precisely why Roe was wrongly decided, demolishing the myths that surround the case (and, following from that, what precisely overruling it would do, in practical terms [q.v. at part I.a]), and commit themselves to upholding the Constitution of the United States, a pledge which inherently and inescapably requires their vote to reverse Roe."

"I generally follow a textualist approach to statutory interpretation and look to text and history in constitutional interpretation. I have been cautious about the expansion of the common law and generally have not been in favor of recognizing new causes of action or expanding existing theories of liability unless there is a sound, compelling reason to do so and a clear set of governing legal principles can be articulated to define the claim or scope of liability"

Scalia on "Law's Quandry"

Our Hero has penned a book review published in the November issue of First Things. Lacking in easily-quotably soundbites, but cracking none-the-less, in every other way it's vintage Scalia, practically jumps off the page at you. Hat tip: Orin Kerr.

"[I]t's a big win for honesty, and that may be, in the end, a good thing"

Dahlia Lithwick - albeit, doubtless, with a heavy heart (Lithwick being pro-Roe) - offers the best-case scenario for the post-Miers world:

movement conservatives weren't willing to settle for a coded message anymore. They have built up a strong and capable stable of thinkers and jurists who are not speaking in half-promises or symbols. And they wanted a nominee with the brains and brawn to overturn Roe because it's bad law rather than just because it's "a sin." The code also didn't suffice because the right had heard the same coded promises about Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter—and had dejectedly watched them go on to uphold Roe. Sick and tired of ambiguous messages and middle-of-the-road nominees, they would not be placated by anyone who wasn't willing to say, as are Janice Rodgers Brown or Priscilla Owen or Edith Jones, that Roe must die now.

John Roberts was the last wink, or coded nominee, the far right will ever accept.

"[GOP judicial nominees] should be going in [to Senate confirmation hearings] and calmly, dispassionately and respectfuly explaining precisely why Roe was wrongly decided, demolishing the myths that surround the case (and, following from that, what precisely overruling it would do, in practical terms [q.v. at part I.a]), and commit themselves to upholding the Constitution of the United States, a pledge which inherently and inescapably requires their vote to reverse Roe."

Addenda

Bidisha Banerjee at Slate writes:

the desire of Bush followers to have O'Connor replaced before the Justices take up the new abortion cases on Nov. 30 appears to have been frustrated by Miers' withdrawal."

It feels like awakening from a long nightmare.

I have been in Indianapolis all day, and thus, unable to respond to the news of Harriet Miers withdrawal from consideration as President Bush's second nominee to the Supreme Court of the United States. The Hotline has the whole sordid timeline. For the record, kudos must go to Charles Krauthammer, whose sword she either fell - or was pushed - onto. The sense of relief is palpable.

The End of Federalism?

So asks the Claremont Institute's John Eastman:

the nomination of Harriet Miers exposes the fault lines of disagreement within the conservative coalition, and appears to have boxed out one significant component of that coalition.

...[T]he 1992 election loss was just a symptom of the real, underlying cause of the coalition's rifts, which had less to do with disagreements between the three groups than with a change in the underlying philosophy that held them together.

The big business component of the Marketeer part of the triad began to realize that a broad and preemptive federal regulatory power was better for them than having to deal with less sophisticated regulatory agencies in 50 different states, placing them squarely at odds with the limited government and federalism ideology. And the Doves, for their part, began to see a national government in their hands as a solution for the ills of society, a view equally at odds with limited government and federalism. In other words, the new glue that cemented the three legs of the governing coalition was no longer the original intent intellectual movement, but an expanded federal government in Republican hands. The era of "big government is over" was over.

...President Bush and Vice President Cheney have asked their conservative base to "trust" that Harriet Miers will be a solid vote for their causes. Yet how would she vote in the Oregon [assisted suicide] case? Would she vote to uphold the Attorney General's assertion of power because of the immorality of physician-assisted suicide, pre-empting the deliberate (though, in my view, idiotic) policy judgment of the people of Oregon? Or would she strictly adhere to the Constitution's text and structural principals, voting to hold the Attorney General's regulation to be unconstitutional?

Precedential weight

Speaking of stare decisis, here's the explanation of my concerns that I coughed up for ConfirmThem:

Stare decisis and originalism are not necessarily opposed ideas, but when you have a series of precedents leading in a direction perpendicular to the constitution, originalism must trump precedent.

Visualize it like this: imagine the constitution as a dot. Imagine a series of originalist justices set precedents (we’ll call them, collectively, "circle A")which form a circle around the dot. Each of the originalists cite the preceding precedents, which are all still centered on the dot. Now imagine someone comes in and writes an opinion (we’ll call it "Circle B") which is a circle of the same size, but it’s not centered on the dot - it’s still in the ballpark, its center is still within the circle of precedent. Is that decision okay? Sure. But what happens next? What happens if someone now comes in and writes another decision ("Circle C")producing a precedential circle of the same size - but this time, Circle C’s center point is towards the edge of circle of circle B, and the edge of the circle doesn’t even touch the constitution (our original dot. What happens the next time that a case comes up which a person who believes in stare decisis says is controlled by this line of precedent? Is the judge free to create circle D anywhere they like, as long as it’s within circle C? I would argue that the answer is no, because what has happened is that a series of "in the ballpark" decisions have gotten further and further away from the pitcher’s mound, to the point where the decisions no longer have ay foundation in the text, rather than our circles of precedent. If we lived in a common-law system, that would be fine - but we don’t. Periodically, there HAS to be a course correction to bring us back to the text.

Here’s a slightly clearer explanation using graphics also:

More conlaw

I have a series of comments over at Concurring Opinions covering my views on stare decisis, textualism and various other matters of ConLaw. Thoughts on the Eleventh Amendment and sovereign immunity can be found here.

The campaign against Miers gets organized, and an alternative appears

http://www.betterjustice.com/

Looks like opposition - far from fading - is starting to coalesce into something more organized.

Update: one of the more interesting suggestions I've read this morning is that the new nominee should be Diane Sykes (Justice, WI Supreme Court, 1999-2004; US Court of Appeals, 7th Circuit, confirmed 2004).

Jessica McBride is leading the charge. McBride avers:

[H]ere is why a Diane Sykes candidacy would be a brilliant move for Bush.

• Sykes won't have a problem in conservative circles. She is a card-carrying member of the federalist society.
• She had a conservative record on the bench. She's perceived as a rock-solid conservative.
• Here's the reason it's genius: ...[A] Sykes' nomination puts Wisconsin Democratic Senators Herb Kohl and Russ Feingold in a box...Both voted for Sykes [for CA Judge]. But they did more than that; they actively pushed her for the federal appeals court. And they were liberally quoted lavishing praise on her.
• She is only in her late 40s. She could be on the SCOTUS for FORTY YEARS.
• Like Roberts, Sykes is attractive, articulate, and cagey about discussing her beliefs. Unlike Roberts, we know she's a conservative.
• William Rehnquist just selected her before he died to serve on a prestigious committee that serves as the link between the federal judiciary and the Congress
• Conservative bloggers love her

More on the need for intellectual big guns

The Volokh Conspiracy's Todd Zywicki has an article on Law.com, here. Zywicki makes - far more eloquently than I had managed - the same point I was trying to make in this post.

Todd writes, inter alia:

There are two possible ways to think about Supreme Court appointments. One is to appoint those who will simply "vote right" on the Court; the other is to be more far-reaching and to try to change the legal culture...President George W. Bush's nomination of Miers is a clear indication that his goal is merely to change the voting pattern of the Court. One suspects that the best that conservatives can hope is that Miers will consistently "vote right."

[T]he historical record suggests that justices who are appointed on the presumption that they will "vote right" but who lack a developed judicial philosophy soon don't even vote right. Those who come to the Court without a clear judicial philosophy almost always end up moving left over time. Think Harry Blackmun, David Souter, etc.

Inspired by thinkers such as Scalia, Thomas, Robert Bork, and Richard Posner, and nurtured by groups such as the Federalist Society and the Institute for Justice, the conservative legal movement in America has grown in confidence and competence, building a deep farm team of superbly qualified and talented circuit judges primed for this moment.

The prevailing liberalism of the contemporary legal culture was on the ropes and primed for a knockout -- only to have the president let it get off the canvas and survive this round.

...Conservatives should not fear to debate their judicial philosophy. It defers to the judgment of elected officials at the state and national levels, preserves federalism and the separation of powers, and empowers individuals to use their property free from arbitrary regulation. On numerous issues -- such as public religious displays, property rights, and the death penalty -- it is far more popular than the liberal alternative.

That's why so many conservatives are upset with the president. Picking someone who merely votes right while forgoing the chance to change the larger legal culture is a squandered opportunity. Even worse, when the president picks someone who votes right but who follows no overarching judicial philosophy, he may soon find himself with a justice who does neither.

Finally - a nominee with a paper trail!

President Bush nominates Ben Bernanke (Official bio) as Chairman of the Federal Reserve Board. This nominee has actually served in positions relevant to the post to which he has been nominated, and has written stuff! Huzzah!

I oppose the Miers nomination

The Truth Laid Bear will be running a custom blogsearch to test the strength of opposition in the blogosphere to Harriet Miers. Hat tip: Ann Althouse.

There should not be any lack of clarity on my position on Harriet Miers. I was sceptical from the word go, and said so in two posts here and here. I defended the need for a Justice who was pursuasive rather than just a vote here, and scepticism finaly gave way to outright hostility 10/7/05 here.

The reality is that there simply is nothing that can or has been offered in support of the nomination, beyond "trust the President." Once one has rejected that argument, there really is nothing else available. The Miers nomination is a political disaster which must be prevented from becoming a judicial disaster; her name should be withdrawn from consideration, and a candidate such as Sam Alito, Maura Corrigan, Michael Luttig or Emilio Garza should be brought forward. I therefore join The Truth Laid Bear's survey thusly: I oppose the Miers nomination.

Just as Confirm Them! is now inaptly named, since the vast majority of the posters at that group blog are inveterately opposed to the Miers nomination, so there seems to be something vaguely odd in writing a blog called "I respectfully dissent" when, weirdly enough, I seem to be part of the majority on this one.

On originalism

Over at ConfirmThem.com, I offered the following brief explanation of what originalim is, and as a precis, I'm rather pleased with it:

There are several schools of originalism, the most common being original meaning, but there are also believers in original intent (a pretty lacklustre theory, IMO) and original understanding. What they have in common is a shared view that the text governs and the meaning of the text must freeze in time at ratification, if the document is to be reconcilable with democratic government. The differences between the various originalist schools largely revolve around: WHAT freezes in time? What is authoritative?

Believers in original intent posit that a) there is a discernable singlular intent of the framers b) that we can discover it and c) that it governs. Most serious originalists dismiss this theory as pretty vapid and facially incoherent, not least because it renders itself incompatible with textualism as a device for statutory interpretation, about which more anon.

Another school of thought, original understanding, says that what the framers (or, in some sub-groups, the ratifiers) thought they were enacting. This is a good, coherent argument, but I find it unsatisfying. Lastly, the school of thought I subscribe to, original meaning, says that the plain meaning of the document as the words would have been understood by a reasonable person at the time of ratification is what governs. This seems to me to be a good, reasonable theory which makes the governing instrument democratically accountable and does not clash with textualism.

So what’s textualism? Textualism is fundamentally a theory of statutory interpretation that says, “it means whatever it says.” Textualists are not concerned with what the Congress INTENDED to do (even assuming that 536 people can have a singular intent), nor with what the Congress THOUGHT it was doing (if you’ve ever perused the pages of the U.S. code, you’ll understand that the people who wrote this stuff had, at best, a torturous writing style, and at worst, a tenuous command of the English language). Textualists are concerned with what the law says; what is the plain meaning of the words that were enacted, as they would have been understood by any reasonable, educated person fluent in the English language, as 435 fictional reasonable Representatives, 100 fictional reasonable Senators and one fictional reasonable President should have understood the plain, ordinary meaning.

So textualism is essentially about using the plain, common public meaning of the words of a statute. Where does originalism come in? Why not just apply textualism to the Constitution? Answer: you should apply textualism to the Constitution, but in doing so, you must understand that the ordinary meaning of certain words in 1789 was not necessarily the plain meaning today. Originalism - as I view it, at least - is an error-correcting lense that sits neatly over textualism to adjust a plain textualist reading to take account for the toll of time on language.

Just a bunch of noise on the fringe?

National Center's Amy Ridenour has posted an utterly glorious transcript of a hapless White House staffer falling afoul of Tucker Carlson's wrath. The WH drone made the unfortunate mistake of suggesting that opposition to Miers is a fringe activity of the "far right" (yes, this guy works for the Bush White House, not the previous one). One reads this sort of nonsensical puffery routinely in recent weeks from the pro-Miers camp, but instead of reading it and then reading eloquent demolitions on blogs, what makes this example spectacular is that Carlson absolutely eviscerates the WH drone, there and then. Great stuff, and well-worth the click.

A couple of interesting things from this morning's news

John Podhoretz writes:

Having read through the Miers questionnaire supplied to the Senate Judiciary Committee, I note with shock that in a legal career that lasted more than 25 years, she argued 8 cases before juries: "I have identified eight cases that were tried to verdict. I was lead counsel or sole counsel in four, lead local counsel in one, and associate counsel in three." That number again: 8. Eight. E-I-G-H-T. Turns out that the number is pretty important in Miers's career, since it's exactly the same number of cases she dealt with at the appellate level as well.

Her entire combined courtroom experience in the course of her long career: 16 cases. Thus does the last prong in the Miers defense -- that she will bring real-world lawyering experience to the bench -- collapse like a house of cards.

I feel like George Jetson: Jane, won't somebody stop this crazy thing?

Mr. Goldstone doesn't say what he would have had these "highly pragmatic men" do instead, given the reality of slavery in some of the states. He admits that, "had idealism dominated in Philadelphia," there may never have been an America at all. He observes that Gouverneur Morris, Rufus King and John Dickinson--principal northern figures--"seemed willing to pay almost any price for union." Such a willingness makes them sound positively Lincolnesque, but Mr. Goldstone evidently disapproves. If he knows how they could have paid a lower price, he again doesn't say.

Another round of "spot the difference"

Given the departure of the Supreme Court from the Constitution in recent decades, one of the key questions for any nominee thereto is their attitude towards the doctrine of stare decisis.

"Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. Thus, whether the prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling." (Senate Judiciary Committee, Questionnaire answers of Harriet Miers, nominee to the Supreme Court of the United States, p.56

"It has been argued that we should not overrule so recent a decision, lest our action appear to be occasioned by nothing more than a change in the Court's personnel, and the rules we announce no more than the opinions of a small group of men who temporarily occupy high office.

"I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion upon the democratic process in order that the Court might save face...I agree with Justice Douglas: 'A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.' Or as the Court itself has said: '[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.'" South Carolina v. Gathers, 490 U.S. 805, 824-5 (1989) (Scalia, J., dissenting) (Internal citations and some quotation marks ommitted)

Trying to have it both ways on abortion

David Ignatius writes in today's Washington Post:

"The bickering over the Miers nomination epitomizes the right's refusal to assume the role of a majoritarian governing party. The awkward fact for conservatives is that the American public doesn't agree with them on abortion rights."

"A CNN/USA Today/Gallup poll in late August found 54 percent describing themselves as pro-choice and only 38 percent as pro-life, roughly the same percentages as a decade ago."

"[Like Blackmun,] Powell also made abortion his summer research project. As a young lawyer in Richmond in the 1930s, Powell had heard tales of girls who would “go away” to Switzerland and New York, where safe abortions were available. If someone were willing to pay for it, it was possible to have an abortion. Powell came quickly to the conclusion that the Constitution did not provide meaningful guidance. The right to privacy was tenuous; at best it was implied. If there was no way to find an answer in the Constitution, Powell felt he would just have to vote his “gut.” He had been critical of Justices for doing exactly that; but in abortion, there seemed no choice. When he returned to Washington, he took one of his law clerks to lunch at the Monocle Restaurant on Capitol Hill. The abortion laws, Powell confided, were “atrocious.” His would be a strong and unshakable vote to strike them. He needed only a rationale for his vote."

As Stewart saw it...[t]he public was ready for abortion reform...But the state legislatures were always so far behind. Few seemed likely to amend their abortion laws. Much as Stewart disliked the Court’s being involved in this kind of controversy, this was perhaps an instance where it had to be involved.

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.

On the Miers/Powell comparison

Patterico offers these thoughts about why Justice Powell was a nice guy and a bad Justice.

Two interesting things

More-or-less interesting, at least. An awesome post entitled Why Originalism is Not Strict Constructionism (found via Technorati search) and a quick roundup of a CNBC interview with Scalia notes that "I’m not even sure I wanted [the Chief Justiceship], to tell you the truth", worrying - as David Wagner noted recently - that it would detract from his writing and thinking time.

Lastly, this article eloquently offers more thoughts on the bitter taste of the Miers nomination.

............
Post facto: Profs. Althouse and Bainbridge are pointing out that the conflation of strict contructionism with originalism is false and has been explicitly rejected by Scalia a number of times, in print and in speeches.

On the value of intellectual firepower

Another post that was originally written as a blog comment.

Robert Bork: the Miers nomination is...

..."A disaster on every level"

Verbatim from the transcript.

"[The Miers nomination] is a disaster on every level...a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years. a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years. There’s all kinds of people, now, on the federal bench and some in the law schools who have worked out consistent philosophies of sticking with the original principles of the Constitution. And all of those people have been overlooked. And I think one of the messages here is, don’t write, don’t say anything controversial before you’re nominated."

So sayeth the WSJ's OpinionJournal.

For nearly 25 years, conservative legal thinkers have been building an argument that liberalism transformed the Court into an instrument of national policymaking more appropriate to the nation's legislative institutions...Across these many years conservatives have been creating a structured legal edifice to stand against a liberal trend toward aggrandized federal power that began in the 1930s. Chief Justice William Rehnquist's "New Federalism," which devolves many powers back to the states, was one such example. Harriet Miers may share these reformist views, but her contribution to them is zero. Conservatives are upset because they see this choice as frittering away an opportunity of long-term consequence.

If instead the Senate had been given the chance to confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing, that vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to.

Replacing Justice O'Connor with a recognized judicial conservative--which by definition means risking an occasional nonconservative decision--would have helped restore the Court as the institutional tabernacle of the Constitution. With the Miers nomination the Court remains a political Colosseum. We'll win, but the price is a politics of permanent payback.

Sam Brownback just won a campaign contribution

Story.

Kansas Republican Sen. Sam Brownback has said he would consider voting against the nomination of Harriet Miers to the Supreme Court even if President Bush made a personal plea for his support.

My concern is that open advocacy of conservative legal views is now a definite disqualifier for the Supreme Court, in a conservative administration that campaigned in part on putting more Scalias and Thomases on the Court, and with a 55-member GOP Senate conference. Whether you're in practice, in academia, or on a lower court, the crime of being conservative in a public place now means no one will appoint you to the Supreme Court. It's not even clear that Federalist Society membership will be tolerated when it comes to picking high Court nominees.

Watch for the next generation of conservative legal thinkers to go silent on the big questions, leaving no indication of who they are, making no disciples, and forcing the next conservative administration -- if there ever is another one, which must now be considered in doubt -- to trust to sheer luck in finding them.

Meanwhile, on the other side...

Tony Blankley couches a call for patience and trust for Bush's judgement in attractive prose.

In favor of elitism

A commenter over at Althouse (not me) offers a pretty good rebuff to the "stop being elistist" objections:

[L]et's say you have to choose between two doctors for a heart surgery, you don't know anything about either except you get your hands on their medical diplomas. One graduate with honors from Johns Hopkins, the other was a graduate (no honors) from a second (or worse) tier school. Which do you choose if that is your only information?

Another reason to be concerned

I'm reposting this from Volokh, where I posted it as a reply.

The Miers nomination: day two

I offer comments about Miers over at Volokh and Patrick Ruffini's blog (1, 2). I read a great takedown of Hugh Hewitt by Professor Bainbridge.

As mentioned yesterday, I'm trying to avoid explicitly rejecting this nominee, because you never know what might turn up in the next few weeks. But when Senator Cornyn (R-Tex), who has "known her for fifteen years" says that "She is obviously not a Scalia or a Thomas", I think it's safe to say which side I'm leaning towards. After the ghastly performance of the Democrats during the Roberts hearings - during which they appeared to display an almost complete failure to grasp what the Supreme Court is actually supposed to do - I'm inclined to agree with Aaron Margolis that "Whoever the Democrats don't want is who we want. Anyone they would label as 'radical' or 'fringe' or 'out of the mainstream,' that is who I want." Margolis goes so far as to call for Miers to be borked by Republicans; I'm not quite willing to go that far yet, but I'm leaning that way.

The first Ruffini comment is actually something I want to think about and maybe later expand upon, but I offer it here anyway in its current form:

Originalism is a process-oriented judicial philosophy which is not especially concerned with whether the results are conservative or not. It is a judicial philosophy that is a happy bedfellow to Republicans, because the Republican philosophy is deeply rooted in the same history of the Republic's limited government constitutionalism that originalism venerates; in recent years, though, as *some* Republicans have shifted their philosophical ground away from a system which can be reconciled against the original understanding, they have found that the originalism less-and-less confirms their agenda. See, for example, Scalia's dissent in Hamdi, Thomas' dissent in Raich, or the refusal of the federal courts to get involved with Ex rel Schaivo.

Originalists tend to restrain government, because the constitution is explicitly designed to make government more difficult for the governors. It seems to me that President Bush is determined to put conservative judges on the court, and is well aware that as the conservative majority emerges and solidifies, if the court places limitations on government, that will de facto limit the conservative movement. I fear that the GOP has been but a fairweather friend to the original understanding; the concern is not that Harriet Miers is a blunder, the concern is that the President knew exactly what he was doing.

As the court’s new junior member, the 60 year old lady Harriet Miers will finally give a break to Stephen Breyer, who has been relegated to closing and opening the door of the conference room, and fetching beverages for his more senior Justices. Her ability to do this type of work with no resentment, no discomfort, and no regrets will at the least endear her to the others. It will also confirm her as the person who cheerfully keeps the group on an even keel.

In re Harriet Miers

I know very little about Ms. Miers beyond what I've read in the news and blogosphere this morning. In general, in the absence of readily-available evidence to the contrary, I must tack towards caution. I therefore join the opinions of Prof. Zywicki and Article III Groupie in full, and the opinion of David Frum in all but ¶¶1-2.

Prof. Zywicki writes:

There are two possible ways to think about appointments, one is to appoint those who will simply "vote right" on the Court, the other is to be more far-reaching and to try to change the legal culture...Bush's back-to-back appointments of Roberts and Miers is a clear indication that his goal is at best to merely change the voting pattern of the Court rather than to change the legal culture. One suspects that the best that conservatives can hope for from the two them is that they will consistently "vote right."