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What Do The Critics of the Miers Nomination Want?

Sunday, October 9, 2005  |  posted by Hugh Hewitt

This is a long post, designed to reply to some of the major arguments advanced against Harriet Miers by conservative critics. Ed Morrissey has done a fine job of reviewing last week’s intra-conservative battles, though overstating my role in it, but there are many arguments advanced against Miers that simply do not stand up.

The first objection, put forward many places, is that Miers doesn’t have the intellectual chops to do this job. It was advanced by my friend John Pohoretz on my radio show Friday:

I don’t care, per se, whether she opposes [abortion]or…I don’t care whether as a matter of policy she opposes or supports affirmative action. My question is: is she a Constitutional theorist, with an idea that would suggest to her that the 14th Amendment does or does not permit the kinds of practices that we now have in place.

The idea that Miers cannot go toe to toe with the giant brains on the Supreme Court is a very odd argument, on a number of fronts. It assumes that the business of judging is very difficult and that only scholars and intellectuals are suited to the task, when in fact scholars and intellectuals have brought us to the point where the SCOTUS has become such a political problem. Read these excerpts:

First, much constitutional law bears little or no relation to the Constitution. Second, the Supreme Court’s departures from the Constitution are driven by “elites” against the express wishes of a majority of the public. The tendency of elite domination, moreover, is to press America ever more steadily towards the cultural left.

The Court majority, to put the matter plainly, has been overtaken by political correctness. Traditional values are being jettisoned and self-government steadily whittled away. The American people have no vote on these transformations; efforts by legislatures to set limits to cultural change and to control its direction are routinely, and almost casually thwarted.

The complaint here is not that old virtues are eroding and new values rising. Morality inevitably evolves….What is objectionable is that, in too many instances, a natural evolution of the moral balance is blocked and a minority morality forced upon us by judicial decrees.

Most of us understand law to mean rules laid down by a legislature, court, or regulatory agency, acting within its delegated authority. When the lawgiver acts without legitimate authority, its “law” is to that degree bogus, but if its order cannot be effectively resisted, it is, nonetheless, for practical purposes, law –power withpout legitimacy….[The Court’s illegitimate undercutting of community]takes several forms: the creation of unjustified restraints on the criminal justice system that make policing, prosecution, and punishment difficult, often inordinately delayed and sometimes impossible; disapproval of laws reinforcing morality, particular in sexual matters, to the detriment of marriage, family, and the traditional moral order; virtual antagonism to public displays of religion; and, in a stunning inversion of the First Amendment’s guarantee of freedom of speech, protection of the worst forms of pornography and vulgarity but approval of even prior restraints on political speech…

Perhaps a better understanding of what is taking place may be gained by combining the insights of Max Weber and Kenneth Minogue. Weber wrote:

The intellectual seeks in various ways…to endow his life with
a pervasive meaning, and thus to find unity with himself, with
his fellow man, and with the cosmos….As a consequence
there is growing demand that the world and its total pattern
of life be subject to an order that is significant and meaningful.

Minogue lists three variants in the intellectuals’ quest for meaning. (These developed after religion ceased to provide meaning for the intelligentsia.) The first is the idea of progress, which eventually spawned a Marxist version, and then, when communism’s promises proved disastrous, was incorporated into an alternative endeavor that abandoned the ‘quick fix of revolution’ for a more gradual course of instructing the public in proper opinions. “We may call it Olympianism,” he writes,

because it is the project of an intellectual elite that
believes it enjoys superior enlightenment and that its business
is to spread this benefit to those living on the lower slopes
of human achievement….

Minogue does not discuss the role of courts, but his analysis fits well with what we observe of the behavior of the Supreme Court and its intellectual-class allies. They display a “formal adherence to democracy as a rejection of all forms of traditional authority, but with no commitment to taking any serious notice of what the people actually think. Olympians instruct mortals, they do not obey them.”

Olympians are highly suspicious of the people….As predicted, the Supreme Court, which is the Olympians’ favorite legislature, is constantly inventing new rights to constrain an unenlightened majority….It is hardly coincidental that the explosive proliferation of rights paralleled the rise of Olympianism.

All of these quotes are from Robert Bork’s impressive introduction to “A Country I Do Not Recognize: The Legal Assault on American Values,” a collection of essays published by Hoover Press months ago, and edited by Bork.

Bork’s on target critique of SCOTUS is not that is not powered by enough intellect, but that intellectuals or would-be intellectuals have run it over the cultural cliff. It is odd indeed that some denouncing Miers, including now Judge Bork, seem to anchor their fiercest arguments in the fact that she’s not smart enough for the job, when the implication of Judge Bork’s argument is that the last thing the SCOTUS needs is another would be legal titan. Rather, the most important quality in a justice, from Bork’s published point of view, would be humility in the face of majoritarian choices consistent with the federalist framework. Chief Justice Roberts was speaking directly to this need for a new judicial humilty throughout his hearings. Miers lack of string of law review articles is not evidence of the lack of such a humility.

There are two other aspects of the “not smart enough” critique that deserve response. Beldar, and now Mrs. Bay, have extensively chronicled the exact talents it requires to accomplish what Harriet Miers has accomplished. To deny the value of these accomplishments because they are unfamiliar to the critics is like throwing away Euros upon landing in the States. It is also to risk an incredible amount of scorn from Red State folks who value the talents she embodies because they are the talents they have relied upon for decades in building up their families, businesses, communities and churches.

The other argument is a subdivision of the :not smart enough” argument, and it suggests that even though she is smart, ConLaw played at its highest level requires a lifetime of practice, either in the classroom, the federal courts, or at least as an appellate litigator like the new chief justice.

From this I especially dissent. Simply put: It isn’t that hard. It is wrong to argue that it is so. It is anti-democratic to argue that it is so. The Left wants you to believe it is so, and the center-right should resist that.

For ten years I have begun a year of ConLaw teaching to my class by asking who among them plays golf. We then launch into a discussion of the rules of golf, which can be quite obscure to anyone who has never played the game, and even surprising to many who have but who have neglected the finer rules such as grounding a club in a trap etc.

Then I make two points. First, the rules are extensive but easily learned. Second, rules changes are troublesome and greatly contested.

ConLaw is a just another set of rules, vastly lengthier than those of golf or baseball, and subject to much more frequent changes, which is why they appear complicated to many observers. Further, some of our justices have spent quite a lot of paper and ink arguing absurd theories that tell us “A” is not “A,” with the intent of persuading not the people but other judges of such propositions that the Framers and their friends, who approrpriated money to Catholic missionaries that they might go and convert the Indian tribes intended to ban “under God” from the Pledge.

I am quite certain that Harriet Miers has all the intellectual firepower she needs to join SCOTUS and get the decisions correct. Can she write like Justice Scalia? Of course not. No one can write like Scalia. I agree that her opinions will be less entertaining, less memorable.

Will she stake out as many unique positions as Justice Thomas? I doubt it very much. Justice Thomas has undertaken a very difficult task of asking hard questions about many wrong turns the Court has taken over the past many decades. He is conducting the autopsy of the very dead originalist position on many issues. I doubt Miers will join Justice Thomas in many of these reviews, but neither has Justice Scalia, which hasn’t led to blanket condemnations of Scalia.

I imagine that Justice Miers will vote most often with the new Chief, and that the new Chief will vote most often as did the old Chief, and that the SCOTUS will shift significantly to the right as a result. So what is the problem?

First, there is my objection, first aired on the day of her nomination: She is 61. I wanted another decade of potential service. The president appears to want reliability more than durability. Critics say he could have had both. The reply is that for reasons political, he couldn’t have Luttig or McConnell or Brown, at least not this time. The rejoinder is that this is too important for politics.

Now that is absurd, as absurd as “she’s another Souter.” She’s the anti-Souter, of course, as well known by this President Bush as Souter was unknown to the last President Bush.

But it is also absurd to argue that politics is no factor in the selection process.

Review the lists of acceptable nominees that appeared from various conservative sources like Bench Memos and Confirm Them. Almost all of them –maybe all of them– left off the name of perhaps the most qualified nominee of all –Dean Kenneth Starr of Pepperdine University. The left howls at the thought, of course, but every serious ConLaw type knows that but for his sacrificial service as Independent Counsel, Starr would have been as likely a candidate to be in Roberts’ place this summer as Roberts himself. But his name isn’t on any list because politics prevents it, and everyone knows that.

Given that politics plays a role in the nomination process, critics of the Miers nomination aren’t asking me to stop trusting the president on ConLaw knowledge, they are asking me to trust them more that W (and Rove et al) on political matters. Pardon me if I stick with the folks who brought us wins in 2002 and 2004 and have their eyes on 2006.

Now a few clean-up points.

It is hard to overstate my respect for Judge Bork, and not just for his intellectual contributions to American life, but also for a long ago bit of personal kindness. When I arrived to clerk on the D.C. Circuit for Judge Roger Robb in the fall of 1983, Judge Robb had been incapacitated by a stroke. Along with Judges Scalia, Ginsberg, Skelly Wright and Spotswood Robinson, Judge Bork kept me and co-clerk Terry Ross engaged in the life of the court, each of them assigning us cases and treating us as their own, until we settled into Judge MacKinnon’s chambers for the duration.

That year taught me a lot about the different sorts of judging that go on within the federal appeals courts, and on SCOTUS as well. Judges Robb and MacKinnon, Nixon appointees nearing the end of their careers, were old school. Both, like Miers, had been practitioners and politically connected. Both approached their tasks with an eye on the plain facts before them. Both wrote relatively short, to the point opinions. If “high theory” was necessary, fine. If not, best to skip the dicta and get to the point.

One case in particular illustrated this for me. Before Judge Robb’s stroke, he had sat on a panel with Judges Bork and Harry Edwards, considering the attempt under the Alien Tort Claims Act to sue Libya, the Palestinian Liberation Organization and others brought by survivors of the victims of a terrorist attack on a bus traveling the Haifa highway –the case was Hanoch Tel Oren.

Judge Robb was still very sick when it came time to issue the decision in Hanoch, and he was also adamant about his approach to the case –that it constituted a political question our court ought not to pursue and his opinion was blunt and to the point. Judge Bork’s opinion was eloquent and complicated and long. Judge Bork’s frustration was, I think, quite large as he saw an opportunity for two judges to combine and issue an opinion that would limit the mischief of this very old and very odd statute at the center of the case. Judge Robb didn’t want to move beyond the central fact of the dispute or his conviction that here was a “political question” if he had ever seen one.

Both judges reached the same result –as did Judge Edwards, for that matter, via a third path. But those paths were so very different. I suspect that Justice Miers will be much more of a Robb-MacKinnon judge than a Bork judge. But I suspect the results will be very much the same.

Go back to Judge Bork’s quotes at the top of this very long post, and see that the root cause of SCOTUS’ drift from its role is the absence among its majorities of attention to democratic results and long standing cultural values. Which brings me to the last point of this post: Ms. Miers’ faith.

Forget E.J. Dionne’s silly indeed incoherent argument that critics of Democrats’ breach of the Constitution’s prohibition in Article VI on religious tests are hypocrites for valuing a nominee’s religious faith. Sincere, mainstream religious belief is a very good thing in a nominee for the courts, for the reasons that its absence produces just the sort of Olympianism that Judge Bork warns of above. Dionne’s grade school assertion that condemnation of religious bigotry forbids appreciation of religious conviction is an embarrassment to grade schoolers everywhere.

But I want to note one troubling aspect of the intra-conservative debate this past week. Among Miers’ defenders are James Dobson, Chuck Colosn, and Rick Warren. Almost no credit or respect is given the judgment of these men by the conservative elites hammering away at Miers.

Why is that? Without question, the base of the conservative movement numbers among it members millions of people who put their faith in whole or part in the judgment of this trio. We actually need an old-style McDonald’s “Over __ million sold” to keep track of Warren’s book sales, and Dobson’s broadcasts are heard and influential across the globe. Colson was a keen political operative before his conversion and has single-handedly built a vast ministry devoted to serving prisoners and their families while producing book after book on public life and Christian values.

In short, these are very influential voices, far more influential, in terms of the GOP base, with all due respect, than George Will and Charles Krauthamer.

In considering the political impact of opposing Miers, Senators have to ask themselves not just what their Beltway colleagues think, but what the base thinks. The base trusts the president. At least three senior leaders of the base are persuaded that Miers is a good nominee. This doesn’t compel anyone to support Miers, of course, but it does argue for a great deal of prudence in urging opposition and in the language of that opposition. As my friends at The Corner has noted, there is quite a lot of backlash against perceived elitism among Miers’ critics, a backlash that will grow much stronger if the inference takes hold that Miers’ evangelical faith is some sort of flaw, and that the opinions of evangelical leaders are easily ignored.

Paul Mirengoff stresses the need for conservatives to move cautiously through various arguments in the week ahead, and puts the emphasis on “respect.” He’s right to do that. The instant reaching for rhetorical guns of last Monday has a bit of a stand-off quality to it, and the situation wasn’t helped by Lindsey Graham’s “shut up,” or the Gang of 14’s rush to remind us that they are running the Senate.

So I recommend that everyone involved order and read Judge Bork’s fine essay and the companions to it, and begin by asking before Ms. Miers sits down before the Committee, not who would you have rather seen nominated, but rather what is it that you want in a justice.


For a quick guide to the various arguments, pro- and con-, see Right Side Redux.

Ken Masugi has more.

Pejman disagrees, but fails to note that I did reference Judge Bork’s opposition to Miers above.

Penraker thinks a turning point is here.

More from the Anchoress and Susan Salisbury.

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