Below is a picture of a possum that lives in a tree in our backyard. Would he (or possibly she) make a good Supreme Court justice? Hard to say. There is no paper trail or other evidence about how he feels regarding any constitutional questions, including Roe v. Wade. And being nocturnal could pose some problems. On the other hand, he is a very traditional creature from an ancient bloodline, which should reassure conservatives. And I feel confident that he would never change his legal philosophy no matter how much pressure the liberal establishment brings to bear. I can say, from my long-standing personal relationship, that this is a possum of firm character, slow to jump to conclusions, or to jump to anything for that matter, methodical and detail-oriented in his decision-making. This is an honest, hard-working possum with much real-world experience. I don’t know the answer. I think we would have to wait and see how he performs in the Senate hearings.

Harriet Miers’s Blog!!!

Here is a lengthy three-way conversation about the Miers nomination among my brother Jeff , my cousin Andy , and myself:

Nick: This is a great interview with Robert Bork about the Harriet Miers nomination.

Here’s a great preview of the Miers’ hearings to come.

And this is the best argument I’ve seen so far for confirmation:

I don’t know what to think. I don’t really see how anybody can be so gosh-darned passionately opinionated about it, as so many seem to be, before watching the hearings. Seems like there’s a certain amount of sour grapes amongst the conservative lawyers and judges who have labored so hard and so long in the trenches, and who now deserve to be rewarded instead of this upstart SMU grad. I do agree though with Bork’s point that the lesson here seems to be to never publish or even voice a controversial opinion about anything if you ever want to be a federal judge.

Jeff: I’m not sure that’s true. Bork’s problem was not that his judicial philosophy was public but rather that his public judicial philosophy was way out of whack with the public. He was adamantly against Roe (the public consistently says it should be upheld), and beyond that he adamantly rejected the notion that any right to privacy was implied by the Bill of Rights or any other part of the Constitution. He also looked really, really weird. So, he seemed to be an extremist wingnut who, if confirmed, would repeal citizen rights to privacy against government intrusion. Ruth Bader Ginsburg had a very public paper trail and something like 10 years of experience on the bench and time as an ACLU lawyer. She even had public reservations about the way Roe was decided despite being strongly pro-choice. But overall she seemed like a mainstream moderately left-of-center judge. Breyer seemed even more centrist and uncontroversial.

What is a problem for confirmation is being on record with support for what the public regards as extremist views. One of the conservative darlings they want instead of Miers (I don’t remember whether this is Janice Rogers Brown or Priscilla Owen) has publicly declared that both Social Security and minimum wage laws are unconstitutional because Congress has no power to do such things. She in effect wants to go back to the judicial philosophy that prevailed pre-New Deal. Of course, that sort of paper trail will get you in trouble.

If I were a Dem Senator, I would oppose Miers on two grounds. First, I agree with Bork that her complete lack of experience either on the bench or in the area of constitutional law makes her unqualified to be on the court. It is clear that her primary qualification is her long, loyal service to Bush. That should be a disqualification rather than a qualification. Second, her decision as a mature adult to join an evangelical Christian church that believes strongly that the Bible is infallible and that anyone who does not acknowledge the divinity of Jesus Christ is going to hell has demonstrated a dogmatic approach to the interpretation of authoritative texts and a form of religious bigotry that show she doesn’t have the judgment or open-mindedness appropriate in a Supreme Court justice. For a statement of her Church’s views, go to the Valley View Christian Church web site.

I love the rationale on Miers that Bush assures us all that she will “never change” if she is on the Court. People for the American Way have published notes of a conference call to conservatives around the country in which several of the pro-Miers group promise that she won’t “grow” on the Court. All of this, of course, is code for she won’t become a Kennedy or Souter on the Court. But it strikes me as a strong claim that you can count on her to be absolutely dogmatic. She’s not open-minded now and we promise she won’t develop an open mind once she is on the Court.

The other big theme is that, sure, she doesn’t have a public record, but she is a member of an evangelical Christian church (wink, wink, nudge, nudge). If conservatives can be publicly reassured by supporters that they should trust her because she is an evangelical Christian, isn’t it legitimate for liberal Senators to ask her about the relevance of her religious beliefs to her judicial philosophy?

(more…)