Slouching Toward Miers

Ouch! Robert Bork, the judge whose failed nomination to the Supreme Court created a whole new verb, writes a scathing piece in today's Wall Street Journal (registration required):

With a single stroke--the nomination of Harriet Miers--the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement. That's not a bad day's work--for liberals.

He then goes on to dissemble the adminstration's best defenses for Miers nomination:

The administration's defense of the nomination is pathetic: Ms. Miers was a bar association president (a nonqualification for anyone familiar with the bureaucratic service that leads to such presidencies); she shares Mr. Bush's judicial philosophy (which seems to consist of bromides about "strict construction" and the like); and she is, as an evangelical Christian, deeply religious. That last, along with her contributions to pro-life causes, is designed to suggest that she does not like Roe v. Wade, though it certainly does not necessarily mean that she would vote to overturn that constitutional travesty.

There is a great deal more to constitutional law than hostility to Roe. Ms. Miers is reported to have endorsed affirmative action. That position, or its opposite, can be reconciled with Christian belief. Issues we cannot now identify or even imagine will come before the court in the next 20 years. Reliance upon religious faith tells us nothing about how a Justice Miers would rule. Only a commitment to originalism provides a solid foundation for constitutional adjudication. (Where have you heard that before? How about here.-HC) There is no sign that she has thought about, much less adopted, that philosophy of judging.

As you might expect, Judge Bork also has a thing or two to say to those folks who want to stop any criticism of Miers prior to the hearings, as though the hearings will bring great revelations about Miers that will provide a comfort to all of us:

Some moderate (i.e., lukewarm) conservatives admonish the rest of us to hold our fire until Ms. Miers's performance at her hearing tells us more about her outlook on law, but any significant revelations are highly unlikely. She cannot be expected to endorse originalism; that would alienate the bloc of senators who think constitutional philosophy is about arriving at pleasing political results. What, then, can she say? Probably that she cannot discuss any issue likely to come before the court. Given the adventurousness of this court, that's just about every issue imaginable. What we can expect in all probability is platitudes about not "legislating from the bench." The Senate is asked, then, to confirm a nominee with no visible judicial philosophy who lacks the basic skills of persuasive argument and clear writing.

In his conclusion, Bork describes the real damage being done by this nomination:

Finally, this nomination has split the fragile conservative coalition on social issues into those appalled by the administration's cynicism and those still anxious, for a variety of reasons, to support or at least placate the president. Anger is growing between the two groups. The supporters should rethink. The wars in Afghanistan and Iraq aside, George W. Bush has not governed as a conservative (amnesty for illegal immigrants, reckless spending that will ultimately undo his tax cuts, signing a campaign finance bill even while maintaining its unconstitutionality). This George Bush, like his father, is showing himself to be indifferent, if not actively hostile, to conservative values. He appears embittered by conservative opposition to his nomination, which raises the possibility that if Ms. Miers is not confirmed, the next nominee will be even less acceptable to those asking for a restrained court. That, ironically, is the best argument for her confirmation. But it is not good enough.

It's a shame this guy never made it onto the Supreme Court. I wonder what our law would look like today if he was there instead of Justice Kennedy, who seems to take delight in finding foreign precedents on which to base his opinions.

A lot of people seem surprised by the discord among conservatives and can't understand why the folks who have stood most solidly behind Bush are now quite upset with him. Do you want to know what I think? (Of course you do, or you wouldn't be reading this site.) I think conservatives have swallowed a lot of anger over various Administration policies which, at least in appearance, seemed to go against conservative values. Things like the education bill which was largely written by Teddy Kennedy, signing McCain-Feingold, the massive expansion of government entitlement programs like the Medicare prescription drug benefit, and the lack of response of the Administration to the problems of border security. In each case conservatives shook their heads a bit, and then resignedly said "at least we'll get decent judges". That was true until Miers.

With the swing seat on the Supreme Court vacant, Bush went with stealth instead of a known, highly qualified constitutional conservative, and all those folks who have been swallowing their anger at these other administration initiatives could swallow no more, and up it all came. Supreme Court vacancies are few and far between, and many conservatives now think this pick was wasted.

Will Bush get a chance to fix it? At this point it all depends on the hearings, and whether any Republicans will join the almost unanimous rejection of Miers by the Dems (the anti-abortion news from yesterday will probably guarantee that most if not all Dems will vote no if they want any campaign funds in the future). Maybe Bush will get a chance to mend these broken fences. I hope so.


Harriet Miers; Miers; SCOTUS; Robert Bork; Bork