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Professor Graglia for the Defense

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Yesterday I quoted extensively from Judge Bork’s introduction to “A Country I do Not Recognize: The Legal Assault on American Values,” a book which Judge Bork also edited. The very first chapter in the book is by Professor Lino Graglia, a great light among conservative ConLaw scholars, and the A. Dalton Cross Professor of Law at the University of Texas. I did not know what professor Graglia thought about the Miers nomination, so I interviewed him today. I will post the transcript here a little later. Be sure to check back. Especially if you are Orin Kerr.

The transcript:

HH: It’s a great honor now to be joined on the Hugh Hewitt Show, for the first time, by Professor Lino Graglia. He is the A. Dalton Cross professor of law at the University of Texas, a giant among conservative Constitutional legal scholars. Professor Graglia, great to have you on the Hugh Hewitt show.

LG: Thank you, Hugh. Glad to be here.

HH: Your opinion, professor, of the nomination of Harriet Miers.

LG: Well, it is something of a surprise, of course. She was not one of the, as many commentators said, she’s not one of the names that come forward, that pop to mind. It seems to me the fact that most of the opposition now is coming from the right, the conservatives, because they want somebody more conservative, or more reliable, they think, conservative, like Judge Edith Jones, or Judge Michael Luttig. It seems to me that the Democrats are going to have a hard time opposing her, because if they oppose her successfully, maybe the right will get what they really want the next time.

HH: Do you think there is a legitimate reason to doubt her bonafides as a would-be justice in the mold of say, Rehnquist, Scalia or Thomas?

LG: Well, it’s uncertain to me and to most people as to what her positions are, as to whether she is a conservative or an unactivist judge. I really, unlike many commentators, especially on the right, Krauthammer, George Will, and Specter is talking about…she doesn’t have experience in Constitutional law, and the Constitution was very complicated and very difficult, and you need lots of experience. Well, I think that’s a lot of baloney. I think Constitutional law is nothing but an expression of the judge’s preferences, and she can do that absolutely as well as anyone else. Now whether she’s a Scalia and a Thomas in the sense of being restrained is uncertain. We don’t know much about her, but we don’t know much, really, about anything. The Republicans have been extremely unsuccessful, or unfortunate in their picks. You know, they gave us Warren, they gave us Souter, they gave us Blackmun. So you say that well, we don’t know what she’s going to do. To some extent, we don’t really know what anybody’s going to do, and we’re really in a position where we have to trust George Bush. He says he knows her, and she will be conservative. Let me add…you know, we talk about conservative. I’m very conservative, more conservative judges, not because I want judges who will give conservatives victories, by holding things unconstitutional that conservatives don’t like, like minimum wage laws or rent control. No, I think that important thing is to have a judge who believes in democracy, a judge who trusts the people more than he trusts his or his own…his or her own judgment, and is willing to let the political process operate. That has not been the Court of the last fifty years. The Court of the last fifty years doesn’t trust the people. The Con law professors that support it have a very low opinion of democracy, and they feel they need the Court. If you left the decisions to the people for goodness sakes, you’d have prayer in the schools, you’d have capital punishment, you wouldn’t have busing for racial balance, you’d have enforcement of criminal law, and who can live in a country like that? Not these liberals.

HH: Professor, I have spent the weekend engaged in an on-line battle with some very great minds, like Orin Kerr, and a number of other law professors, arguing with them that in fact, Con law just isn’t that hard. Constitutional theory can be hard, if you want to make it complicated, but understanding the design and the operation as it was intended of the Constitution is not that hard, and that we don’t need someone with an overarching Constitutional theory. We need someone who will honor the preferences of majorities, mediated by legislative bodies, except where they are in clear collision with Constitutional demand. Your comment on that?

LG: I think you’re absolutely right. That’s what I try to say, which you said very well. This idea of a knowledge of Constitutional law…or a complicated Constitution, you have to understand that practically all rulings of unconstitutionality, are mostly against state law rather than federal law, although it’s been increasing the number against the federal. But the bulk are against state law, and all the rulings against state law turn on a single Constitutional provision. One sentence in the 14th Amendment. The due process clause/equal protection clause.

HH: Right.

LG: You know, there’s nothing to understand, right?

HH: Right. And now, professor, I have in front of me A Country I Do Not Recognize, the wonderful new book edited by Robert Bork, in which you contribute the first chapter, Constitutional Law without the Constitution. And I have recommended it on the blog over the weekend, because it talks about the division between the professorial, legal elite class that wants to decide these cultural issues, and the people themselves, what you’ve just articulated, what I share your opinion on. But having said all that, we’ve invited Judge Bork to join us, we hope to get him this week. I was frankly stunned, given his introduction to this book, by his denunciation of Harriet Miers over the weekend, given that she seems to me to be exactly the sort of anti-Olympian, you know, a grass roots lawyer, a private practice lawyer, without pretentions of being a legal titan, that might actually do the Supreme Court some good.

LG: Well, I was surprised, too. And the only thing I learned about it is it was quoted in a column by Maureen Dowd of the New York Times. I don’t usually read that, but she quotes him. And I was surprised at the quote that she attributed to him. And I’ve been actually meaning to call him to ask him what is exactly his objection. But I’ve been a little reluctant to do that, because he has this strong feeling, and I just don’t understand. I think there is a certain amount of elitism here, you know, that some pointed out, you know, eight of the nine members on the Court have a degree from either Harvard or Yale, and often both of them. Can you imagine that? Eight of them from Harvard or Yale, and the only exception is Stevens, and his degree is from Northwestern and the University of Chicago. It is almost as good. So now you have someone who comes from SMU? Really. I mean, what a shocking change.

HH: Now, what is your opinion of adding a practitioner, as opposed to an Appellate judge to the Court, Professor Graglia?

LG: Well, I think there’s maybe a lot to be said for it. As her supporters have been saying, she should have more real world experience, and more real world understanding that should be a valuable contribution. But again, I think that the main thing in a Supreme Court justice is do they trust democracy? Are they reluctant to intervene and say that, for example, Ruth Bader Ginsburg wrote the opinion that Virginia can’t have an all-male military school. Well, why can’t they have an all-male military school? Does the Constitution forbid that? Nowhere that I’ve ever seen. But they’re perfectly…but she doesn’t like it. Any discrimination that involves sex, she’s going to hold unconstitutional. So to me, it doesn’t matter whether I’m for or against all-male military schools, or whether I’m for or against abortion, control of pornography, prayer in the schools, and so on.

HH: Same sex marriage even.

LG: Or same sex marriage. My position is that these decisions, if you read my article in that book, my position is these decisions should be made by the people.

HH: And is that not the true originalist position?

LG: Of course. That’s the genius, the very genius intent of the American Consitutional system, was one representative self-government, that the idea, the original, radical idea at the time that people can be trusted to govern themselves, there’s no improving on that. Secondly, federalism. Leave most decisions to the local level, so you can have different positions on any issue in different states. What they’re doing in Maine you don’t have to do in Arizona. And third, separation of powers. When the Supreme Court makes the policy judgments, it’s by a majority vote of nine lawyers, unelected, holding office for life, deciding for the nation from Washington, D.C., and the judges perform the legislative function. It violates every Constitutional provision.

HH: Professor Graglia, one of the credentials that Harriet Miers brings to the table that has been much mocked, actually, by some conservative commentators, is that she stood for in one election to the Dallas city council, and actually governed. What do you make of that as perhaps inducing in her more, rather than less respect for local decisions, locally arrived at.

LG: I can’t believe that anyone would raise that as anything but an asset, or a plus. I mean, to the extent that she’s actually participated in real democratic electoral politics, that’s got to be valuable experience. That’s supposed to be what this country is about.

HH: So, with about a minute and a half left, Professor Graglia, why the meltdown among conservatives? Is is simply seven times burned, they simply will refuse anything except the greatest guarantee, and perhaps an unconfirmable one? Or is it really elitism?

LG: Well, they certainly have reason to be worried on the basis of the Souter appointment. I mean, if we had a respectable conservative running today, being judge there, we’d be living in a different country today. Abortion wouldn’t be a Constitutional right, you’d have prayer in the schools, and so on. Whatever one thinks, they’d say of those positions, my positions would be left to the country. So, they’ve been burned by Souter, burned as badly as you can be. So you’ve got this Souterphobia. We don’t want another Souter. We don’t know this Miers, so we have to trust you. We just have to trust George W. Bush. Well, we couldn’t trust your father, and they said we had to trust him, and he said Souter will be like hitting a home run. Of course, Souter knew, told the first President Bush there, and he was a disaster. So, it’s certainly understandable that these people are nervous. The Supreme Court is running the country. What point electing conservatives if you don’t change that.

HH: I should have asked this at the beginning. Do you know Harriet Miers?

LG: I do not, no.

HH: Do you know Nathan Hecht?

LG: I know Nathan Hecht.

HH: Do you trust him?

LG: Nathan Hecht is very trustworthy. Nathan Hecht is probably the most conservative judge on the Texas Supreme Court, very trustworthy. He speaks very highly of Miers, who he knows, and that is a large part of my basis of belief that she’ll be all right.

HH: Professor Lino Graglia, I really appreciate your taking the time. It’s an excellent essay. I’m going to oblige my Con law students to read it. I wish every American would get this book and read yours, and Judge Bork’s essays, and the other fine ones, therein. A Country I Do Not Recognize: The Legal Assault On American Values.

End of interview.


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