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In re Harriet MiersI know very little about Ms. Miers beyond what I've read in the news and blogosphere this morning. In general, in the absence of readily-available evidence to the contrary, I must tack towards caution. I therefore join the opinions of Prof. Zywicki and Article III Groupie in full, and the opinion of David Frum in all but ¶¶1-2. There are two possible ways to think about appointments, one is to appoint those who will simply "vote right" on the Court, the other is to be more far-reaching and to try to change the legal culture...Bush's back-to-back appointments of Roberts and Miers is a clear indication that his goal is at best to merely change the voting pattern of the Court rather than to change the legal culture. One suspects that the best that conservatives can hope for from the two them is that they will consistently "vote right."I agree, but I write separately to express additional reasons for concern, and to perhaps attack the problem from another angle. I think that what is making me uncomfortable is nominees who are more concerned with results than process. Whether the results a Justice prefers are liberal or conservative, if they think in terms of results rather than process, they're just another flavor of dead wrong. This is not merely a rhetorical point, but one with real significance for the likely direction of the court. If one favors process, and follows process in a given case to whatever result is compelled by the law and the facts, then process does not really change in time. But, if you favor results, and are in the habit of choosing results and then finding a reason to come out that way, as you change - which, with age, we all inevitably do - the results you prefer may well change. This, I think, is what happened with Mr. Justice Kennedy: he was a conservative when appointed, but he was a results-oriented conservative, not a process-oriented conservative. As he got older, and spent time in Washington, his proclivities drifted towards the center, thus so did his preferred results. Lacking a firm anchoring in process, he continued to do exactly what he did before: justify results through process, rather than reach results by process. Ditto Ms. Justice O'Connor. This would explain why the process-oriented originalists, Thomas and Scalia, have not disappointed the Presidents who appointed them, and the results-oriented conservatives, Stevens, O'Connor, Kennedy and Souter, have in every instance done exactly that. To add further example - when I was younger, I was in favor of capital punishment; as I have gotten older (and, I hope, wiser - but if not, at least, wider), I have leaned increasingly towards regarding it as a relic that should be abolished. None-the-less, being an originalist, and being thus process-oriented, I am just as compelled today to the conclusion that capital punishment is constitutional as I was back when I thought it was indisputably a good idea. Perhaps Justice Kennedy had a similar journey to Justice Blackmun. Perhaps Justice Scalia, even, no longer feels the death penalty a good idea - but Justice Scalia at least recognizes that the dictates of his conscience are not to be mistaken for the scope of the constitution. The measure of constitutionality is not the personal preferences of five Justices. I await proof that Miers is a process-oriented originalist, rather than merely a conservative. That this burden of proof lies on the nominee and her backers is unmistakable; if not mandated by the constitution, it is certainly mandated by expediency. Some might suggest that this is a Republican President, and we should thus trust and defer, but I have an unfortunate affliction that I believe doctors call "memory." I keep remembering that a Republican President appointed Earl Warren; a Republican President appointed Harry Blackmun; a Republican President appointed Sandra Day O'Connor; a Republican President appointed Tony Kennedy and David Souter. A President does not gain a right to deference based solely on the party banner they carry; Republican Presidents in general - and a fortiori this President - have earned very little right to deference on their judgement of Supreme Court picks. n1. Party loyalty should go out of the window when Supreme Court nominations appear, and Senators should remember their oath: to support and defend the Constitution. At the risk of sounding the intolerant ideologue that Ann Althouse suggested that those who oppose Roberts must be - see Althouse, 78 at 1:16 PM; cf. my comments, id. at 1:49 PM - I see no way in which a person who is not an originalist can swear that oath in good conscience. In short: I'm not saying that she's a Souter. I'm saying that she has all the appearences of a Kennedy: today a conservative, who chooses conservative results and finds a plausible rationale - but in ten years, fifteen years, twenty years, who knows what results she might prefer. By contrast, I feel very confident in saying that in twenty years, Clarence Thomas will still be ruling essentially the same way, even if his personal proclivities have changed, and if Scalia can hold out that long, so will he. As Robert Bork once explained, "I don't want liberal judges, I don't want conservative judges; I want originalist judges." In the absence of strong evidence that Miers is such, I respectfully dissent. ________________ Footnotes n1. Not, of course, that I have a great deal of deference for this administration in general, having often found myself at odds with it. See, e.g., Hamdi v. Rumsfeld, 4/12/2005; Judicial filibusters - my take, 5/3/2005; CAFTA passes US Senate, 7/1/2005; The recess appointment power: not so fast, 8/1/2005; GOP spending, 9/27/2005. But cf. This Big Tent, 3/3/2005. Although I'm not a legal expert or lawyer, and so I wouldn't state the case so eloquently, this is precisely the issue I see (process vs. results) with the nomination--and the ONLY honest argument against supporting the Miers nomination. I'm far more optimistic, though, for two very simple reasons: 1) I see the hardcore social conservatives freaking out, as though they fear she WON'T be results-oriented (which is dead wrong, as you said), and 2) my gut. I know it's not a great reason, but I'm virtually certain that Bush doesn't want a results-oriented Justice. Despite the rantings of the fair-weather conservative "base," I don't think he has to toss them a bone, and I suspect he doesn't feel the need to do so, either. He's not driven by polls, he's driven by loyalty and his vision. I say this as a social conservative myself (although probably not as rigidly so as the short-sighted extremists on the blogosphere) who would love to see abortion disappear forever (for example), but I definitely don't want what you call a results-oriented originalist. Thanks for putting a clear definition on that for which I couldn't find the right words. Timestamp: 10/4/2005 4:15:00 PM | Cite as: #1 |
    
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