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Sam Brownback just won a campaign contributionKansas Republican Sen. Sam Brownback has said he would consider voting against the nomination of Harriet Miers to the Supreme Court even if President Bush made a personal plea for his support.I had been trying to avoid reaching the point of outright hostility to the nomination, but as the week has worn on, I've had to grapple with the question: what is it that would convince me that she was an okay nomination? But the reality is, what it would take to convince me is a paper trail - the want of which being the primary reason she was nominated! The question is, as it properly should be, what would Reagan do? Well, when Ronald Reagan nominated Robert Bork, NOBODY had to ask whether Bork was "another Harry Blackmun", as we now worry every nominee might be another Souter. Why didn't we have to worry? Because the President said he trusted her? That wasn't it. Because Bork was a good Christian man? That wasn't it either. Everybody knew Bork wasn't another Blackmun because he had a thirty year paper trail, and had worked in little BESIDES constitutional law. What is the writer's maxim? "Show me, don't tell me." Bork showed us. If Miers could show us, she wouldn't have been nominated. Furthermore, when Bork was defeated, the Democrats controlled the Senate. They do not any more, at least in part because of the defeat of Bork and the promise of Scalias and Thomases. The future of the Courts, and whether America will be governed by the people or by Judicial Oligarchy is THE coagulent that has held the big tent together for thirty years. I wanted someone in the Scalia/Thomas mold. I wasn't kidding. And nobody - not even those who support her - pretend she is in the Scalia/Thomas mold. It isn't enough for the President to ask us to trust him; as I noted here, and as Paul Weyrich and Trent Lotthave pointed out, we have been sold that line too often, and it has NEVER worked out. If putting a completely unknown quantity onto the Supreme Court for twenty years - which has NEVER worked out for a Republican President - was not bad enough, there is worse. The worse is, by declaring that anyone with a clear record as a conservative need not apply to be a Judge, that membership of the Federalist Society or any other conservative organization is now a bad thing, Bush will effectively silence the next generation of conservative intellectuals. They will simply stop writing, and if they stop writing, they stop influencing the generation after that. As David Wagner puts it: My concern is that open advocacy of conservative legal views is now a definite disqualifier for the Supreme Court, in a conservative administration that campaigned in part on putting more Scalias and Thomases on the Court, and with a 55-member GOP Senate conference. Whether you're in practice, in academia, or on a lower court, the crime of being conservative in a public place now means no one will appoint you to the Supreme Court. It's not even clear that Federalist Society membership will be tolerated when it comes to picking high Court nominees.A Supreme Court justice is more than just a vote; Scalia changed the legal culture by sheer force of intellect. Even in cases he loses, he writes these extraordinary opinions - accessable, pithy, lucid, and utterly convincing. People in law school - who may never even have met an originalist before - read these dissents and say "you know, by Jove, he's right!" - and thus another conservative is made. Margaret Thatcher once said, you win the argument and then you win the vote. So it was with me; I did not become a conservative because it seemed like an okay idea, I was dragged by the sheer force of argument offered by conservative intellectuals. They won the argument, they thus won my vote. Bush is not a big fan of winning the argument, and he is helping create a culture that will silence the people who can. |
    
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