Human Events Patrick J. Buchanan October 3, 2005
Handed a once-in-a-generation opportunity to return the Supreme Court to constitutionalism, George W. Bush passed over a dozen of the finest jurists of his day — to name his personal lawyer.
In a decision deeply disheartening to those who invested such hopes in him, Bush may have tossed away his and our last chance to roll back the social revolution imposed upon us by our judicial dictatorship since the days of Earl Warren.
This is not to disparage Harriet Miers. From all accounts, she is a gracious lady who has spent decades in the law and served ably as Bush’s lawyer in Texas and, for a year, as White House counsel.
But her qualifications for the Supreme Court are non-existent. She is not a brilliant jurist, indeed, has never been a judge. She is not a scholar of the law. Researchers are hard-pressed to dig up an opinion. She has not had a brilliant career in politics, the academy, the corporate world or public forum. Were she not a friend of Bush, and female, she would never have even been considered.
What commended her to the White House, in the phrase of the hour, is that she “has no paper trail.” So far as one can see, this is Harriet Miers’ principal qualification for the U.S. Supreme Court.
What is depressing here is not what the nomination tells us of her, but what it tells us of the president who appointed her. For in selecting her, Bush capitulated to the diversity-mongers, used a critical Supreme Court seat to reward a crony, and revealed that he lacks the desire to engage the Senate in fierce combat to carry out his now-suspect commitment to remake the court in the image of Scalia and Thomas. In picking her, Bush ran from a fight. The conservative movement has been had — and not for the first time by a president by the name of Bush.
Choosing Miers, the president passed over outstanding judges and proven constitutionalists like Michael Luttig of the 4th Circuit and Sam Alito of the 3rd. And if he could not take the heat from the First Lady, and had to name a woman, what was wrong with U.S. appellate court judges Janice Rogers Brown, Priscilla Owens and Edith Jones?
What must these jurists think today about their president today? How does Bush explain to his people why Brown, Owens and Jones were passed over for Miers?
Where was Karl Rove in all of this? Is he so distracted by the Valerie Plame investigation he could not warn the president against what he would be doing to his reputation and coalition?
Reshaping the Supreme Court is an issue that unites Republicans and conservatives And with his White House and party on the defensive for months over Cindy Sheehan and Katrina, Iraq and New Orleans, Delay and Frist, gas prices and immigration, here was the great opportunity to draw all together for a battle of philosophies, by throwing the gauntlet down to the Left, sending up the name of a Luttig, and declaring, “Go ahead and do your worst. We shall do our best.”
Do the Bushites not understand that “conservative judges” is one of those issues where the national majority is still with them?
What does it tell us that White House, in selling her to the party and press, is pointing out that Miers “has no paper trial.” What does that mean, other than that she is not a Rehnquist, a Bork, a Scalia or a Thomas?
Conservative cherish justices and judges who have paper trails. For that means these men and women have articulated and defended their convictions. They have written in magazines and law journals about what is wrong with the courts and how to make it right. They had stood up to the prevailing winds. They have argued for the Constitution as the firm and fixed document the Founding Fathers wrote, not some thing of wax.
A paper trail is the mark of a lawyer, a scholar or a judge who has shared the action and passion of his or her time, taken a stand on the great questions, accepted public abuse for articulating convictions.
Why is a judicial cipher like Harriet Miers to be preferred to a judicial conservative like Edith Jones?
One reason: Because the White House fears nominees “with a paper trail” will be rejected by the Senate, and this White House fears, above all else, losing. So, it has chosen not to fight.
Bush had a chance for greatness in remaking the Supreme Court, a chance to succeed where his Republican precedessors from Nixon to his father all failed. He instinctively recoiled from it. He blew it. His only hope now is that Harriet Miers, if confirmed, will not vote like the lady she replaced, or, worse, like his father’s choice who also had “no paper trail,” David Souter.
In the mists of all this flap about President Bush’s latest nominee, Harriet Miers, to the U.S. Supreme Court. Some conservatives broadcasters have aired their concerns (even dismay) about this nominee. I have only this to say. If you are a Christian, than the only opinion that should matter to you is the opinion of Christian lawyers fighting to defend life and family in our US court system. One such lawyer, Jay Seculow, Chief Counsel for the American Center for Law and Justice (ACLJ), has actually worked with Harriet Miers. He personally knows her, and he’s saying she’s the right choice for pro-life Christians in this nation. You just have to hear him for yourself, and pass this message on to as many other pro-life people as you can…
{Listen to Jay’s audio clip on Harriet Miers}
{PLAY THE WHOLE BROADCAST}
{Read more on this story}
Thanks Catholic Knight
Catholic Knight –
With all due respect, my answer to your post is simple – bull. Sekulow may be right. Or, he may be pulling a Falwell from the mid-80’s. Falwell was warned by his people about O’Conner, but chose to endorse her because Reagan personally called him and asked for his support. He felt that ‘access’ to the president was too important to waste on opposing a potentially bad nominee. Christian leaders can be wrong. They can also be co-opted.
The Bible tells us to judge a tree by its fruits, and that wolves come in sheep’s clothing. No one can say for sure what Miers thinks about anything. She’s a big blank.
Look, Sekulow may be right, but there is absolutely no way to confirm this. Even Rush got his dander up with the Vice President today. The VP said to wait ten years and that we would be thrilled with Miers. Rush asked me why we had to wait ten years when there were dozens of people that we would be happy with today.
I have never, ever heard Rush be anything other than obsequious when dealing with a high-ranking member of this administration. This is serious business. Reagan gave us O’Connor and Kennedy. Bush I gave us Souter. Senator Orrin Hatch supposedly recommended Ginsburgh to Clinton, and then delivered all but three Republican votes to confirm her – the single worst nominee in the history of the SCOTUS.
Forgive my cynicism at this stage, but I wanted a clear and convincing record of conservative achievement. Instead, I am supposed to rely on personal endorsements. You have placed your faith that George W. Bush won’t sell you down the river for his own agenda. I’m sure Sekulow has done the same thing.
God bless you for your faith. After the farm bills, the pork laden transportation bill, the massive new Medicare entitlement, the endorsement of civic unions for homosexuals, the out-of-control budget deficit, the open borders, the lack of real tax reform, and all the rest – you and Sekulow refuse to believe that Bush could ever BETRAY his conservative principles and appoint a squisy centrist who will vote to affirm Roe the first chance she gets.
If you’re right, then I’ll eat my words. All of them, with salt and relish the taste as I run, not walk, to the polls to vote for State House and Senate candidates who will vote to outlaw abortion in the State of Florida in a post-Roe world of sunshine and light.
If you’re wrong, then how many more babies have to die before we get this chance again? If the Republican Party had any spine then we would push this nomination back in Bush’s face and not take the chance. There are plenty of dye-in-the-wool conservatives who are ON RECORD criticizing the logic of Roe. Why on Earth are we being asked to take personal endorsements over hard evidence?
The Miers nomination is another troubling example of Bush cronyism and the horrible impact it is having on the performance of our government. This is an administation where sycophancy and obsequieous loyalty are the most valued traits one can display. Apparently Harriet Miers excelled at both.
John Roberts, like Miers, may have been a stealth candidate for the Supreme Court but at least he had suberb credentials and experience to support his nonmination. Miers has neither. I find it impossible to believe that she is the finest legal mind we can find anywhere in the United States to serve on the highest court in the land.
Glen,
If Seculow is right, we’ll both be satisfied if/when she starts making rulings on the SCOTUS. If Seculow is wrong than all is lost. If we can’t even get a Republican president to nominate a strict constructionist to the SCOTUS than no one will. Lord, knows the Democrats won’t. We might as well give up voting entirely because no matter who we put in the Whitehouse (Democrat or Republican), all we’ll get is Liberal activist judges.
My post pointing to Seculow’s comment is my only ray of hope in what seems like a dark defeat and betrayal. I can only hope and pray that he is right. What else do I have? Nothing.
I made up my mind long ago. If Bush’s SCOTUS nominees turn out to be Liberal activists, (like Reagan’s and one of papa Bush’s) than I’ll never vote Republican again. (I’ve already vowed never to vote Democratic again.) So the only thing I will have learned as a conservative Catholic voter is that Democrats hate everything I believe in, and Rublublicans lie to me while they betray everything I believe in. What’s worse?
If things keep going the way they are, it won’t be long before we live in a crytocracy anyway, and our votes will be worthless. Judges will rule us like monarchs, and that will be the end of it.
So Seculow’s comments come as a ray of hope. If he’s wrong, we can only hope it comes out in the hearings in some dramatic way that sways the Senate against her. If it doesn’t, than we’re all stuck with her anyway.
Difference between Social Conservatives and Business Conservatives. Professor Jack Balkin writes:
“Religious and social conservatives may be shocked to learn that the Republican Party is the party of big business after all– it has been since the Civil War– and that big business is not always interested in the same things they are. That is why the Republican revolution in the courts inevitably will be a revolution on business’s terms.
And what, exactly, does business want? Overturning the New Deal? The Constitution in Exile? The return of God to the public schools? The end of affirmative action? Outlawing abortion once and for all? Squashing gays and lesbians underfoot? None of these things.
What business wants is stability, comfort, predictability, and an agile, productive, submissive and demobilized population. It wants a powerful executive that can protect America’s interests abroad. It wants a Congress freed from federal judicial oversight that is able to dish out the pork, jiggle the tax code and deregulate the economy according to its ever shifting concerns and interests. And it wants a Supreme Court that will give a pro-business President and a pro-business Congress a free hand, a Court that will protect the rights of employers over employees, advertisers over consumer groups, and corporations over environmentalists.
It wants, in short, someone very much like Harriet Miers.”
http://www.acsblog.org/judicial-nominations-2048-prof-balkin-miers-a-business-conservative.html#discussion
Pres. Bush, your Base in on the Phone and it isn’t happy.
This is intended solely as an observation on political strategy. Perhaps Bush should have consulted his base prior to announcing his second pick for the Supreme Court. The White House does not seem prepared for many of the reactions it is getting to the Miers nomination. Bush’s base needed some TLC and he gives them Miers, this can’t be good political strategy, can it?
Secondly, how did the White House end up so defensive with respect to its nominees? Presidents get to pick their Supreme Court Justices after they win elections. Republicans have a majority in the Senate and the power to eliminate judicial filibusters. Democrats always strove to move the Court left, now Republicans can’t move the Court to the right? Nonsense. This defensive posture can only mean that the Republicans have only a nominal majority in the Senate, and that RINOS have, in effect, created a third party. What other explanation can there be, Bush does not behave like a President who can control the Senators in his own party. Yikes!!
Yes, I know that the Supreme Court should be above politics but it hasn’t been for quite some time, so for the foreseeable future we have to deal with a politicized nomination process.
Dean,
There is an interesting article in Touchstone Magazine this month that reads along those lines. Business leaders are often at the forefront of various social ‘movements’ if there is money to be made in it. They are also the first to collude with government, if there is profit to be made. After all, the term ‘rent-seeking behavior’ exists for a reason. J. Budziszewski also touched on this problem when he wrote an article ‘The Trouble with Conservatives.’ Capitalism is a system of economic organization, it is not a moral code. Unfortunately, too many Christians seem to misunderstand this.
Christians in earlier eras understood the greedy corporate tycoon who colluded with the government to oppress competition and keep down the workers. In our current environment where wealth is worshipped, we idolize many of the people who engage in this kind of behavior. In fact, we even elect president a man who made his fortune looting property owners through emminent domain. No wonder he didn’t protest the Kelo Case.
This isn’t an endorsement of socialism, however. I’ve lived through that up close and personal and came away hating the taxes, the rules, and the corrupt government officials. Rather, I prefer a government to weak for the powerful to twist it to their own ends.
Anyway, Miers will be approved. She’s a crony. She’s unqualified. She is likely to be a disaster. But, here she is. My vote for the Constitution Party in 2004 is looking better to me all the time.
Note 5. There is one other possibility: the Republicans themselves reject Miers, or at least give such indication so that her nomination is withdrawn. It’s a very long shot but worth pursuing.
Fr. Hans writes: “There is one other possibility: the Republicans themselves reject Miers, or at least give such indication so that her nomination is withdrawn. It’s a very long shot but worth pursuing.”
I’m a little confused here. Miers goes to a pro-life, evangelical church. When asked whether he had ever talked to Miers about abortion, Bush gave several evasive answers and finally said that he didn’t “recall” having talked to her. Obviously he has talked to her and likes her views. Obviously he has nominated her precisely because she has little history to criticize. She helped prepare Roberts for his hearings, which is to say that she helped him develop a variety of ways of not answering questions. She also will use those techniques.
I always thought that the only reason why a thinking person would vote for a corrupt dolt such as Bush is because he would pack the court with anti-Roe justices. As far as I can tell, that’s what is happening. Mission accomplished. I always got the sense from many conservatives that the only issue that mattered was abortion — and that if Bush wrecked the country in every other way, which he seems to be doing, that really didn’t matter, because abortion was always the be-all and end-all.
So I would expect to see conservatives giving each other high fives and dancing in the street. Instead, everyone’s all sad and gloomy about Miers not having “qualifications” or “experience.”
What the –? Conservatives voted for a guy for president who himself didn’t have qualifications or experience — who can’t speak in sentences longer than 8 words — whose only skill in life was getting family and friends to bail him out of his own business failures. And the reason they voted for him was Roe v. Wade. Now, at the very moment of triumph, they want a “qualified” nominee . . . they want “experience” . . . they’re worried about all these other issues on which Miers will rule.
Now if many conservatives want to be single-issue voters, then great, BE single-issue voters. But please don’t be single-issue up to the moment of victory, and then suddenly want all of these other things as well, because it’s confusing to the rest of us.
I’m really disappointed in the Democrats – but then again, what else is new. There are so many layers of cluelessness I don’t know where to start.
First they opposed the suberbly qualified and experienced John Roberts, and now they support the mediocre, inexperienced crony, Harriet Miers. Whatever political calculation is responsible for that is so disconnected from reality it’s frightening Then they continue to make support for the stale, discredited Roe V. Wade decision a litmus test, even though nothing would invigorate them politically like a fresh approach on this issue.
Lastly and most disappointingly they have nothing positive to offer. It’s as if their entire platform boils down to “not Bush”. The public is yearning for new solutions to urgent issues like the war in Iraq, energy independence and health care (where the Bush administration has clearly failed) and the Democrats respond with nothing but whining. I listen in vain for new ideas, alternative policy proposals, a mission statement perhaps, and all I hear is Nancy Pelosi’s shrill outrage and Harry Ried’s carping.
Sportswriter Frank DeFord, looking for a parallel for a losing sports team he was commenting on this morning on NPR, compared them to the Democrats, “cowardly, rudderless, vapid, dunderheads.”
Note 10. I’m surprised you don’t understand this. The larger is issue is judicial activism vs. judicial restraint. Miers has such a scant track record that there is no clear indication of where she ultimately will place herself.
Just because Miers is a moral conservative does not mean she will be a competent justice. Even if she turns out to be a judicial activist for conservative views (your argument), a Ruth Bader-Ginsberg of the right instead of the left, constitutional authority, and thus the Republic, is still undermined.
It seems to me judicial activism is in the eye of the beholder. For example, conservatives would dearly love to see the Supreme Court strike down Oregon’s assisted suicide law, and once again trample over state’s rights in the process. No conservatives voiced their opposition when the Supreme Court swept away California’s Medical Marijauna laws and once again gave the DEA authority direct their resources against those dangerous cancer patients seeking relief from nausea. The Rehnquist court has struck down more state and federal legislation, like the Violence Against Women act of 1988, then any other court. Why isn’t a court that aggressively seeks to curb the power of the legislative branch considered activist?
To me its seems that when conservatives talk about being against judicial activism they are actually using code to signal their opposition to expansive interpretations of constitutional rights that protect the rights of citizens against violation from powerful government and private interests.
I’m not sure there’s such a thing as conservative “judicial activism”, is there? Conservative judges typically consider most laws (especially if they’re criminalizing something they don’t like) Constitutional, no matter how impractical or intrusive. In Alabama, for example, it’s illegal for a man to seduce “a chaste woman by means of temptation, deception, arts, flattery or a promise of marriage” as well as to play dominoes on Sunday. Are these laws Constitutional? I guess, although the former law does unfortunately make tricking a girl into marriage a more risky endeavor! 🙂
However, instead of “judicial tyranny” we end up with “legislative tyranny” where man is rendered incapable of rising from bed without committing some form of a crime.
Note 13. The relevant legal issue over Oregon’s assisted suicide law is the dispensing of narcotic drugs in ways that violate federal law. How a challenge to that law is framed, eg: states rights, right to die, etc. is an entirely different issue. If you think that this law ought to be overturned because state sponsored suicide ought to be allowed, then make your case and bring it to the people. The Courts however, should base any decision on the constitutionality of that law on the merits of the law itself, and not on any of these secondary challenges.
The objections to judicial activism concern not the curbing of the power of the legislative branch to make law, but to curb the increasing tendency of the Court to create law by judicial fiat. Even if some law is undersirable but constitutional, judges are obligated to let that law stand. Those who seek to overturn have the legislature as recourse.
By appealing to broad principles of protecting private interests in order to defend judicial activism, you will, in the end, remove private protection altogether. Witness the Kelo decision. All private landowners were stripped of Constitutional protection in favor of big business interests. Roe v. Wade did the same thing. Conservatives view this encroachment on personal liberty by the liberal judiciary with increasing alarm.
On the other hand, if conservatives employ the same activism but for conservative ends, then in the end the same kind of tyranny will prevail. They differ little from their liberal counterparts. Conservatives must be brutally honest here. The same honesty ought be coming from the liberal side but probably won’t be given that many of their pet policies like gay marriage don’t stand a chance in the legislatures. The Courts are their only hope since an activist judiciary is essential for imposing these policies on the nation.
The Constitution stands between the tyranny of government and the freedom of its citizens by circumscribing the power and reach of government. The judiciary functions to curb any overreach of the executive and legislative branches. The excutive and legislative branch functions to curb the overreach of the judiciary through appointment, and advise and consent. The Constitution does not allow the judiciary to become a legislative body unto itself.
Note 14. The laws cited were not implemented by judges, but legislatures. Further, if a law is not enforced, there can be no tyranny.
Most likely the laws that seem senseless to us today had some real world antecedents when they were first crafted. Times change, real world circumstances change, and some laws that were relevant earlier are no longer relevant today. They can either be removed from the books or they just fall into disuse. Either way the end result is the same: no enforcement is applied thus no “tyranny” exists.
Why even have laws that seem so senseless to us? Without know the historical circumstances, it is hard to say. Perhaps the law you cited was meant to fight prostitution in some neighborhoods? Who really remembers? Legislators sometimes get creative, particularly if a law is crafted to target a localized problem.
RE: No. 12 (Supporting Father’s argument) Boston University Law Professor Randy Barnett, in an op-ed published in the Wall Street Journal, writes:
“To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered “judicial philosophy,” by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. Nothing in Harriet Miers’s professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people. It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement.”
Another interesting quote: Alexander Hamilton in Federalist paper No. 76 wrote:
“To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation.
It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”
http://www.acsblog.org/judicial-nominations-2055-barnett-alexander-hamilton-wouldnt-approve-of-justice-harriet-miers.html#discussion
Is Miers the “mother” of the White House diversity strategy?
Classify this as internet rumor. I don’t have it on good authority, but, it makes sense. I was very unhappy with the position that the White House took in the recent academic affirmative action cases. As a matter of strategy, I was dissappointed that the White House did not contest the idea that “diversity” was a “compelling state interest” in constitutional terms. They had two major arguments they could make in opposition to affirmative action and they gave one up before the debate began. I had blamed Theodore Olson (Olsen?) the Solicitor General who argued the case, however, some internet legal rumor mongers are claiming that it was Harriet Miers idea.
Again, this is just a rumor, as the old joke goes, I don’t believe in repeating rumors so you had better “listen good the first time.” I consider this unconfirmed but highly plausible.