University of Wisconsin Professor of Law Ann Althouse has a very important post today, because it is the first “turning” post I have seen on Harriet Miers, proving that such “mellowing” is in fact possible, and from within the Academy.
Here’s the crucial proposition AA makes:
This lack of interest in theory has bothered a lot of lawprofs, including me. Conlawprofs are biased in favor of theory. If you are going to devote your life to the subject of constitutional law, as an academic subject, you are probably the sort of person who is attracted to abstractions, theories, and larger patterns and aspirations. You are going to tend to approve of jurists who have a similar frame of mind, a large capacity for theory, that makes you and the people you surround yourself with so impressive. Now, who is this Harriet Miers, this practicing lawyer, who presumes to go on the Court and write the opinions we must spend our lives reading and analyzing? Even when you have little hope that the nominee will decide the cases the way you want, you have a problem with the presumptuousness of putting a person like that on the Court. Roberts was one thing, but she is quite another. In him, we saw ourselves, but she is just an attorney. The very idea!
Thinking about it that way has begun to thaw my opposition to Miers. Why is it not a good thing to have one person on the Court who approaches constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk? Perhaps the Court is harmed by an excess of interest in the theoretical. A solid, experienced lawyer like Miers, with no real background in constitutional law, might look at the text, the precedents, the briefs, and use the standard lawyer’s methods to resolve the problem at hand. What is wrong with having that style of analysis in the mix? We need a safeguard against the excessively theoretical.
But I still have to quarrel with Professor A’s opening shot about the president’s fidelity to his Scalia/Thomas pledge. Here’s what she wrote:
President Bush has already failed to fulfill his campaign promise that he would choose someone like Justices Scalia and Thomas, because they are justices committed to a particular constitutional theory, which they make a point of saying they are bound by. Really, John Roberts did not fit this mold either. It seemed as though he was supposed to be conservative, but one couldn’t really know, and, in fact, he seems likely to end up in a more moderate position than Scalia and Thomas. And we discovered at the hearings that Roberts did not embrace the sort of textualism or originalism that distinguishes Scalia and Thomas. Roberts presented himself as more of a pragmatist (like Justice O’Connor, perhaps, or even Justice Breyer). And surely, Harriet Miers is associated with no theory of constitutional interpretation. She appears to have never shown any interest in constitutional analysis at all.
When Bush said “like Scalia or Thomas” many people heard many things. I think it is very safe to say that the vast majority of American voters did not hear “justices committed to a particular theory…of textualism or originalism.” I think they heard “justices who aren’t making stuff up,” or “justices who aren’t full of themselves,” or “justices who will not impose same sex marriage or overturn every juvenille death penalty in the land or import EEC law on a whim.”
I think they heard “results,” and if I am right, Bush has not only not broken his promise, he may be well on his way to fulfilling it twice and hopefully more times over.
I made an argument to John Fund yesterday about what a nominee needs to prevent their gradual evolution into Justice Kennedy/Blackmun or their sudden revelation as a liberal, like Justice Souter:
HH: The most reliable indication of reliability among a justice is that they have spent serious time on the front lines in Washington, D.C., taking the slings and arrows of outrageous fortune thrown at them by the left. Thus, Antonin Scalia observed it close up at the Department of Justice, as did Rehnquist, as had John Roberts, as did Clarence Thomas, most famously in the last case. And that there is nothing like cementing someone’s ideological boots into a grounded Constitutional jurisprudence, than having been on the front line in Washington, D.C. The mistakes you rolled off, and they’re all very true, they were imports from outside of the Beltway. No Republican has nominated a Beltway-experienced person who has disappointed.
JF: I’d put that on your side of the ledger.
So the folks charging that Bush broke his promise also have to ignore that the common thread between Scalia and Thomas is not just frequency of the same vote on cases, but also experience brought to the SCOTUS, and in this case, both Roberts and Miers have been on the front lines for a long time, and are hardened veterans of the political wars. (President Aristotle has more.)
There is another dynamic at work that might settle the Miers critics into a wait-and-see-until-the-hearings posture: For every angry anti-Miers e-mail that arrives, there are two pro-president which are shocked at the ease with which a large group of the right wing punditry turned on W, and appear to have done so not because of any evidence that Miers is a liberal, but because they evidence they were presented that she is a conservative was unpersuasive –to them. Here’s a selection from OpinionJournal. It is pretty easy to surmise that K-Lo is up to her ears in hate mail as well.
One of the many interesting aspects of the debate is the depth to which the center-right grassroots appear to have embraced the idea of incremental progress towards their goal –a not surprising reflection of the same ethic which works well in investing, business-building, relationships, and many other fields. Of course there are the “right nows!” who are spoiling for a show down, but the gras-roots dismay with the Miers-bashers is not that Miers is so clearly a good choice, but that given that the president’s record is very good on judges, that the direction he has taken the courts is good, that the allies in the Senate are wobbly, and that 2006 looms, there wasn’t any restraint in the reaction, and by and large still isn’t.
Folks who are labelling the anti-anti-Miers crowd Bushbots and much worse are telegraphing nothing about their opponents and plenty about their own grasp of politics. From a friend who is a lefty, who goes by the name “scribbler”:
NOTE: If there’s anything to any one of John Fund’s six bombshells, all will be a moot by the time you read this. Otherwise, please continue reading on the Miers battle with the scribblers at the…
White Flags, Blank Slates, and Starting Over from Scratch Desk
Is it at all surprising? That is, is it at all surprising that so many conservatives–including, we should think, many serious conservatives (you know, the kind of conservatives upon whom the Deep Profundities of the Borks, Luttigs, Gralias and Scalias are not wasted)–are so disappointed, depressed and demoralized?
Judge not your wayward and dispirited brethren too harshly, dear Hugh. Remember, aside from being denied a TRUE conservative, they were also deprived of the long-awaited, much anticipated Big Showdown. They were ready. They smelled victory. And total victory at that. All Bush had to do was say the word and it WAS ON. …But the calls for a Pryor or Owens or J.R. Brown were in vain. Instead of throwing down the gauntlet, the president appealed for a truce. Push never came to shove. And the war never came.
Right now, even as we write and even as you read, the battle should have been raging. Instead the taunting “51-50 or fight!” battle cry, is but a feint echo.
Pity most the poor, highly principled conservative bloggers. All those summer weekends boning up on Rule XXII white papers–for nothing. All those hours turning over in their heads clever “gang of fourteen” metaphors–for naught. Reading and rereading all those originalist talking points (“not dead, but enduring”)–por nada. And this time it was to be fought on their own turf. Bloggermania Twenty Five is finally here! ALL SCORES would finally be settled. Take that, you activist liberals! Up against the wall, you clueless MSMers! Out with all of you gutless, godless, self-hating, Soros-loving, global-testing, hedonists! And you seven Constitutional option dodgers, don’t think we forgot about you! …But Bush said “Miers,” and the rumble was over before it started.
…to be continued???
Yeh, we know, Kaus said it better and first-ly yerz,
Here’s another excellent missive from outside of the Bos-Wash Axis of Excess:
I want you to know I’m with you on the Miers nomination. I am so tired of the attack of the pundits, that frankly they have lost considerable credibility in my eyes. They seem to forget the unhelpful things they said about Roberts. To me they seem to rationalizing rather than reasoning. I’d been more impressed if I hadn’t heard the same tune, with different words from the Roberts naysayers on the left. Everytime you try to talk to them, instead on introspection they have to reach down grab another clod of dirt, and as they throw it sneer, saying “yeah well what about this.” I am unimpressed. Oh but I’m merely an unwashed mortal. What do I know? Well, here’s a question, “How many Constitutional Experts wrote the constitution?” Answer: None! And it was the second try! We didn’t get the first one right. (Hint for pundits: Articles Of Confederation. Remember?) The wisdom of the framers was built from hard experience. By the way look what the constitutional experts in the EU wrote: 121 pages with attachments, and completely unworkable.
I have plenty of thrown hammers in my mail as well, but unless a conservative Anita Hill shows up, Miers will be confirmed, and the argument will shift to her votes. And then we will know who was right and who was wrong. If Miers is a reliable vote for originalism, what will all these people say? “Never mind?”
Now, can you believe Bono is doing a benefit for Rick Santorum’s campaign? John Podhoretz only begins to glimspe the turmoil this announcement is going to set off.
Just arrived in the mailbox:
The Meirs opposition will have no effect on Hillary’s chances in 2008. Whatis helping her is almost everything that W has done from rehabilitating hercriminal husband to the education bill with Ted Kennedy, to the Prescriptiondrug entitlement, to the open border policy, to 19 other issues ad nauseum!It is time to stop W before there is nothing left of America! Remember theoverwhelming majority of Americans want machine guns on the border. Jointhe real world Hugh. god blessDouglas A_______
And then this one:
Mr. Hewitt, I’m become so frustrated with the folks at NRO that I sent them this letter to the editor. There is no reason to think they’ll publish or post it. I’m looking for another outlet. The odds are good that if you read the first three paragraphs you will be drawn into reading the whole piece. If you like I would appreciate your help in placing it. If you don’t like it, well, there’s no known cure for that, and I’m out of luck. Thanks for whatever attention you give it. Russ M_______Cardiff-by-the Sea, Ca. It is obvious that Conservatives pundits feel betrayed by Bush’s nomination of Harriet Miers. The question is why? Bush has lived up to every commitment he made during his two campaigns for President. On the positive side he cut taxes, held fast on the GWOT, and made a major effort at reforming Social Security. The reform of Social Security might be further along had the intensity of Conservative support for reform equaled the intensity of effort Conservatives expend trying to reject Ms. Miers. He made an even more important commitment. He promised to nominate justices that would not legislate from the bench, and he’s keep that promise. Many of the potential justices on the Conservative the wish list would not be in the positions they currently occupy had Bush not pushed hard to get them confirmed by a spineless Senate. He hasn’t backed down from a single commitment. Conservative intellectuals have an interesting response. They list all the things that Bush has done that they don’t like. The problem is that all but one of the complaints are about commitments that Bush made in the open while running for office. It’s true that Bush compromised with Ted Kennedy in order to enact No Child Left Behind. We were all surprised, right? No we weren’t. Bush did exactly what he said he would do. Bush has an immigration program. Most of us, those of us who don’t write for the Wall Street Journal, want a different approach to immigration. We’re all furious that Bush didn’t announce his intensions when he ran, right? Not likely. Bush has increased social spending for the poor at a faster rate then Clinton. Why didn’t Bush tell us he was a compassionate conservative. Don’t know about you but I wouldn’t have voted for him if he’d said he was a compassionate conservative during his champagnes. How could faith be based on a program with initiatives like that? We are operating at a higher level of pork then most of us would like. I don’t remember Bush saying anything about cutting back on log rolling. Do you? I do remember him saying that the real fiscal threat to the country was our run away entitlement programs. Running our current comparatively small current account deficit in the face of a war and our other problems is not a serious issue. The entitlement gap will sink the country. Here’s a 5 cent psychiatric assessment. Many Conservatives seem to be focused on Bush’s alleged fiscal recklessness out of understandable guilt over not being more helpful in reforming Social Security. I’m certainly open to other explanations but these folks sure look like the pot calling the kettle black. Fiscal discipline brings up the one complaint about Bush that he didn’t deal with as a candidate. In the aftermath of Katrina, Bush is committed to rebuilding the Gulf Coast. I do wish he had anticipated this problem and discussed it prior to taking office. Bush just wasn’t prescient on this matter. So now he surprises us with a massive albeit quite conservative program of reconstruction. He’s talking about radical ideas like Enterprise Zones, Tax Credits and (can you believe it?) school vouchers. Of course Conservatives oppose all those things because it is the Conservative position that the Gulf Coast should not be rebuilt. It works for me. I want Andrew Jackson’s face removed from the $20 dollar bill. If it hadn’t been for Old Hickey and his arrogant adventures in 1814 and 1818 we wouldn’t have any of that coast anyway. George W Bush always does what he says he will do. Sometimes I like what he does, sometimes I don’t but he never breaks his word. A man like that operating in any arena deserves respect. A man with this kind of integrity fighting in the Presidential political arena deserves much more respect and trust than he has gotten from the wordsmiths who sit in the conservative grandstands and want to engage in a quarterback controversy with the head coach. Ah, but there’s still another answer. We worked hard, say the Conservatives, to build a strong stable of candidates. He should be riding one of our well groomed horses . People actually say that and apparently expect to be taken seriously. Here is a serious answer. If you want to have influence on who is nominated to the Supreme Court then get your best friend, the one who always takes your advice, elected. Bush isn’t that guy. He never claimed to be that guy. He said that he was his own man and that he would make judgments that would be different, and certainly from my vantage point better, than either Al Gore or John Kerry. Bush didn’t select Harriet Miers to make any of you happy. He choose her to fulfill his commitment and to live up to his own very high standards of integrity. He made an honorable choice. Honor means something to Bush. Honor means something to me. Does it still mean anything to the people who call themselves the Conservative Elite?