Today, the Blogosphere will erupt over...

John Fund's WSJ Political Diary:

That "stealth nominee" thing may have backfired:

Some participants in the Oct. 3 conference call fear that they will be called to testify at Ms. Miers's hearings. "If the call is as you describe it, an effort will be made to subpoena everyone on it," a Judiciary Committee staffer told me. It is possible that a tape or notes of the call are already in the hands of committee staffers. "Some people were on speaker phones allowing other people to listen in, and others could have been on extensions," one participant told me.

Should hearings begin on Nov. 7 as is now tentatively planned, they would likely turn into a spectacle. Mr. Specter has said he plans to press Ms. Miers "very hard" on whether Roe v. Wade is settled law. "She will have hearings like no nominee has ever had to sit through," Chuck Todd, editor of the political tip sheet Hotline, told radio host John Batchelor. "One slipup on camera and she is toast."

Should she survive the hearings, liberal groups may demand that Democrats filibuster her. Republican senators, already hesitant to back Ms. Miers after heavy blowback from their conservative base, would likely lack the will to trigger the so-called nuclear option. "The nomination is in real trouble," one GOP senator told me. "Not one senator wants to go through the agony of those hearings, even those who want to vote for her." Even if Ms. Miers avoids a filibuster, it's possible Democrats would join with dissident Republicans to defeat her outright.

Comments

[Celine]

For some reason, conservative critics of the nomination assume that if Miers is thrown to the wolves, then Bush's next nomination to the Court will be an improvement. In terms of experience and other credentials, that might not be too difficult to achieve. But will she (or he) be any more likely to vote to reverse Roe v. Wade? Will we have any greater assurance of this? I wouldn't bet on it. But if not, what is prolife or indeed Catholic interest here? Surely not to assure that Supreme Court Justices wrote law review articles and went to Harvard rather than SMU.

[Matthew]

Well, there is no certainty that Bush will appoint a stronger originalist the second time around, but I'd say the odds weigh in its favour. Regardless, there are good reasons to oppose the nomination regardless of Miers' judicial philosophy:

1. To oppose cronyism in the Bush administration.
2. Because of Miers' sad lack of qualifications.
3. To undermine the 'stealth nomination' concept, which penalizes judges, academics and practising lawyers who have done the hard intellectual work of building up the originalist/textualist school of judicial reasoning.

[Celine]

Matthew:

I concede most of what you say. But unsure that I have any particular interest in assuring the triumph of the "originalist/textualist" school on priniciple. Justice Thomas, for example, would strike down federal efforts to limit assisted suicide in the States on "originalist" grounds. Presumably, he would strike down any federal ban on abortion that extended to the States as well. I thought that the life issues were "non-negotiable," and must trump mere prudential matters, like the judgment that originalist/textualist views should be preferred. Or is that just a principle that applies to political liberals?

[Matthew]

Well, we do want to achieve good ends, but only through acceptable means. We shouldn't suit our judicial philosophies to the ends we desire. Making up the law to suit oneself (even if it is an unambiguously good law one makes) is not the role of judges, and is an immoral means to good ends (a federal ban on abortion, or striking down euthanasia statutes). As it happens, I believe that textualism (with a dash of originalism) is the proper way to interpret a constitution. It is fortunate that such an interpretation will yield at least some good results. But even if it wouldn't, I couldn't honestly choose some other method to arrive at just results. It would be a betrayal of the judicial role to do so.

All that said, would it be wrong to support a judge who will give us the just results, even if (s)he arrives at them by sublimating the law to her(his) desires? I'll leave that to experts on ethics- anyone?

[Marc]

"Not one Senator wants to go through the agony of those hearings..."
Well, too bad. That's what you're getting paid for. If you campaigned as a pro-lifer, then grill her about Roe v Wade. Can't pro-lifers be as honest about their intentions as pro-abortion Senators like Specter???

[Ed]

Life issues being non-negotiable does not make everything a federal case. Is anyone proposing a Federal Murder Statute that pre-empts all state laws on homicide? Not anybody I've heard of.

Courts may have become policy-making bodies, but they shouldn't be, and it is more important to fix that than it is to get them to order our own policies.

[chris K]

Whoa! So Specter is going to show his muscle and ask Ms. Miers the very same questions that were asked of Roberts. She will answer the same...that, of course, at this moment Roe is settled law. Big deal! If he gets belligerant and gets tougher than with Roberts he will, once again, be seen as a bully towards women. The conservative elitists, if turning against this nominee, will hope to get a stronger and more recognized from prior views conservative?? If they are willing to filibuster this one, they will be sure to take that action against a better known quantity. Such a nominee might make the intellectual elitists happy in the beginning, but if they think it will pass, they are living in an isolation ward. They will see that they passed up the best chance for any gradual chipping away at abortion, anytime for any reason. But, then, it's credentials that matter, right? History will only repeat itself. The strategy of common sense by the President will be rejected for talking heads kind of failed reasoning...once again.

[JP]

There does appear some confusion about what an orginalist would do as a Supreme Court Justice. Here are a few points:

1)Respect The Seperations Of Powers as specified by the Constituion.
2)Defend the Constitition and its Amendments as explicitly stated in their texts.
3)Defer to the other branches unless there is obvious enough reason not to.
4) Always refer to the orginal intent of any law
based on the laws texts and contexts.

Those were just a few. An orginalists must at all times avoid the temptation to render a policy decsion or render a new law based on his religious or politcal views.

At times Justcies must allow even distasteful or immoral laws to stand, if those laws pass constutional muster. Our laws must always come about through the consent of the governed, and not through as Scailia says "our black robbed masters". Consent given at the lowest levels allows the people to have the most impact on laws that have the most relevance on thier lifes.

Yes, there are many cases that require a careful examination of constitutional principles (drug induced ethanasia as mentioned in other posts, or church-state relations), but an orginalists is paid to consider the cold, hard constitutional principles of the case, and not the moral ones. In our society, we are governed and not ruled; a justice should defer to the governed unless there is a clear, obvious, constitutional reason to do otherwise. A justice should never enter a case as a partisan. That's what politcal parties are for.

A Conservative minded court would never rule against local expressions of religion. The Constituion prohibits Congress from recognizing religions, not the states or local goverments. Maryland, for instance had a state religion when the constituion was ratifed.

A Conservative Court would interpet the Interstate Commerce Clause as written, and only allow it to be used to regulate economic matters between states.

A Conservative Court would only apply Amendments to those areas that the Amendments were intended. If Congress wishes to expand those areas, then they should add an Amendment or rewrite a statute.

The Constitution is flexible and can grow or evolve. Congress, and not the Courts is the means this can be done. The heresey in our civic life is that we can change our culture on the cheap. Having judges make the difficult decsions for us not only erodes our liberties, but ultimatly corrupts our souls.

[Margaret]

Well put, JP and Matthew! Without the activist court pushing their laws advancing both the tyranny of the federal government and liberal, secular politics, the people, through their elected officials would be able to exercise their opinions. Would we get laws that Catholics could support? Sometimes and sometimes not depending on the constituency voting. At a minimum we would have the morality of a free people determining their lives -- our God-given right.

[JP]

Celine,
If Congress passed a law prohibiting abortion, and that law could pass constitutional muster, than it is constitutional. The same with euthanasia. If our country passed an Amendment protecting a woman's right to abort that too would be legal. In all 3 cases I sited, the people had an active involvement in what laws they wanted. The courts in all 3 cases would have to step to the sidelines.

Politics rightly belongs to the governed, and not to 9 Justices who see themselves as Philosopher Kings.

Hamilton rightly saw the 3rd Branch of Goverment as the least dangerous branch. It is up to conservative legal minds to return that branch to its rightful place

[Art Deco]

Matthew offers:

Because of Miers' sad lack of qualifications...

A discussion of some of the commercial litigation Miss Miers has been involved in, as well as other aspects of her background, may be found here:

http://beldar.blogs.com/beldarblog/

I will leave it to the lawyers who comment here to make an assessment of the degree to which Miss Miers absence of public writings on the subject of constitutional law ought to be disquieting (it would seem so to me). However, this woman was the senior partner of a Houston law firm with in excess of 200 lawyers, and has argued some quite complex cases in the realm of commercial law. Only a modest minority of attorneys are offered associates' positions in firms of that size, only a modest minority of that minority are offered partnerships, and very few are tapped to lead the firm. The notion that she is a common-and-garden lawyer with political connections (propagated by Chas. Krauthammer, among others) is simply not so. By contrast, Sandra Day O'Connor's preparation consisted of a few years as a state trial judge, some terms in the Arizona legislature (with a stint as majority leader in one house), and about 20 years of quite mundane law practice (in partnership with her husband and no one else, if I recall correctly). O'Connor was not a crony of the President, 'tis true. Her in was Sen. Barry Goldwater.

The woman is professionally impressive. He nomination may be imprudent for other reasons.