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?
Nick: I think it’s obvious that Bush is saying, as clearly as he can, that Harriet Miers is a vote against Roe that can be counted on. And the Democrats can’t prove it. That doesn’t mean that Bush is guaranteeing her close-mindedness. Most legal scholars believe that Roe is bad constitutional law, regardless of how they feel about the legality of abortion, but you can’t be on record as saying that and still be confirmed for the Supreme Court. Harriet Miers is Bush’s way of getting a sure vote against Roe onto the court. I think that’s a legitimate goal. I think he should be allowed to appoint an anti-Roe justice, and it’s a shame that this is the only way he can do it.
Jeff: If that’s a legitimate goal, and he has definitive evidence that she will vote that way, it is also legitimate for the Senate to get a public answer about that. If that’s the reason she is being appointed, that should also be a reason to oppose her. That’s what’s objectionable about any “stealth” candidate. If his/her views on some key questions is really unknown to all participants, maybe that’s OK if there is a pretty solid public record on most things. But the executive shouldn’t have special access to knowledge of the candidate that is not allowed to Senators or the public.
James Dobson is going around telling conservatives that he “knows” she is a reliable anti-Roe vote, but he can’t disclose what he was told by someone close to the President (or maybe even by the President). If the President’s base can be given that info, why not the public and the Senate? And the reason that she would be rejected if it were revealed that she were a sure vote against Roe is that the country as a whole as well as the legal profession believe that it was rightly decided. One of Miers’ public acts we do know about is that she tried to get the ABA to back off its public endorsement of the abortion rights established in Roe. She failed. So the argument is that Bush should be able through stealth to appoint a justice who, on one of the most important decisions she will face, is out of step with both the public and the legal profession but in step with one part of the Republican Party’s base and in step with conservative legal ideologues. Why would that be legitimate? And doesn’t that mean that there IS a litmus test about abortion being applied? It is true that Bush ran on a platform that he would appoint conservative judges, but it is also true that he always avoided promising to appoint anti-Roe judges and specifically claimed it would NOT be a litmus test.
By the way, loved the Miers hearing preview. A good companion piece to David Brooks’s parody of the Roberts hearings.
Nick: As I understand it, she tried to get the ABA to put the support for abortion to a vote of the members, rather than have it be decided by the executive committee, and they refused. Very similar to the current disagreement about Roe. Should it be decided by people voting, or should it be decided by five Supreme Court justices? Here’s a good LA Times article about the whole deal.
I don’t think that the anti-Roe forces are really that out of step with either the public or the legal profession. Only something like 23% of the public believe there should be an absolute constitutional right to abortion on demand. And I would guess that even fewer members of the legal profession would agree with that. Most people think that abortion should only be legal under certain circumstances, and that the states should be able to decide what those circumstances are. The reversal of Roe doesn’t mean no more abortion. It just means transferring the decision from the judiciary to the legislature, where it belongs.
It would probably be healthier if Bush were to nominate a highly respected conservative jurist who has published anti-Roe opinions, and then have the Republicans in the Senate shut down the inevitable Democratic filibuster with the “nuclear option”, but as a politically practical matter, I can see why he has chosen to do an end run instead.
Jeff: No, actually I think the public wants Roe affirmed but in a way that allows states to whittle away at the absolute character of the right. That’s more or less what the Court has done, and a rightward shift will probably only have the effect of accentuating that. Partial birth bans will be upheld, parental notification within limits will be upheld, etc. The public basically doesn’t have a legalistic view of this. They believe abortion should be permissible when it is for good reasons and should not be permitted for bad reasons. That’s all but impossible to codify in legislation, so their solution really is to allow women to have abortions for any reason (so the state doesn’t have to inquire into consciences or criminalize women and doctors who carry out abortions), but at the same time strongly disapprove of women who use the right for wrong or frivolous reasons. But that ultimately is a pro-Roe position.
I like the Save the Kittens argument. Did you see William Kristol’s latest column where he sneers at conservative arguments for Miers by reproducing the one from a former White House colleague who goes on for a paragraph or two about how Miers was always generous with the bowl of M&Ms she kept on her desk (shades of Reagan and his jelly beans)?
I think your account of the ABA controversy is not quite right. It was not the executive committee of the ABA that put the org on record as supporting Roe; it was 450 or so delegates to the annual national convention. I assume these delegates are elected by local bars. They voted about 3-2 to reverse the ABA’s neutral stance. What Miers tried to do is force a referendum of all ABA members, not on a pro or anti-Roe position but rather on whether the ABA should take a stance in favor or return to its previous stance of neutrality. The ABA had not referred ANY issue to the full membership since 1878. Such matters have always been handled by the delegates to the national convention. Apparently, though, it has been rare for the ABA to take public stances on policy questions, so in supporting a neutral stance she was appealing to the traditions of the org.
Andy: A few rather belated observations…Supposed inside information or not, what conservative groups tell each other intramurally is one thing. For Senators to ask a judicial nominee–any nominee–about the relevance of personal religious beliefs to judicial philosophy is quite another. Should the Senators inquire whether a candidate believes in God? Whether the answer is yes or no, it certainly might influence a judge’s approach to church-state cases, prayer in the schools for instance. Does a Catholic nominee believe in aid to parochial schools? If so, under what conditions? Ad infinitum. I doubt that that’s a can of worms you would really want to open, however influential personal religious beliefs, or lack thereof, mght be with respect to judicial philosophy or court rulings.
My own opinion is that a great deal of jurisprudence boils down to predetermined outcomes rationalized a posteriori by whatever means necessary, as the legal scholar Malcolm X used to say. Penumbras are elusive little bastards, lurking furtively behind clauses or hiding in amendments, but you can ferret them out if you’re diligent and they can be extremely useful in this regard. And of course conservatives do the same thing, or the equivalent, only not (in my opinion) quite so much.
The relationship of personal faith to public policy is necessarily complex and no doubt varies greatly from individual to individual. I’m certainly not crazy about Harriet’s born-againness, but I think religious people, even genuine believers, are often capable of a great deal of compartmentalization, an ability to separate personal mystical faith from the practical demands of real life. Double-think if you will. Fitzgerald’s famous dictum may not be strictly true, but I’ve always liked it: “The mark of a first-class mind is the ability to hold two opposing views at the same time and still retain the ability to function.”
Whether Harriet has a first-class mind is perhaps debatable. But I think it’s an exaggeration to say that she, or evangelicals in general, necessarily believe the Bible is infallible. How the hell could anybody of rudimentary intelligence, even a true believer, think that, when the Bible is so full of contradictions and absurdities? Just for starters, the laws and prohibitions of Leviticus. Do you think Harriet actually believes it’s a sin to combine textiles of different provenance? Or that the earth is just a few thousand years old? She doesn’t seem to be an idiot. I suppose belief in the divinity of Jesus is a sine qua non, but that’s hardly confined to fundamentalists, and I doubt that Harriet believes that anyone who thinks otherwise is going to hell. If she even believes in hell. Not everybody of that persuasion does, you know.
I’m inclined to think it’s unlikely that Roe will be overturned, even with a conservative majority on the court (should Harriet be confirmed and Justice Stevens prove to be mortal after all). Aside from the long-standing precedent, things could get very messy (and no less acrimonious) if the basic question, not just the refinements, went back to state legislatures, and you don’t have to be a liberal pro-choicer to appreciate the potential problems. Even conservative judges (Scalia? Roberts?) are not necessarily crazed ideologues with no regard for precedent or consequences or public opinion.
I don’t think it’s a foregone conclusion that Miers would vote to overturn, under the circumstances. For that matter, while Bush’s views about legislating judges are no doubt genuine (and well warranted in my view), I have a sneaking suspicion that he himself is not so eager to overturn Roe as most people assume from his winks and nods to the base. For whatever it’s worth, my impression is that Barbara and Laura are both pro-choice, as was Bush pere before he was seduced by political expediency.
I think you’re right about the ABA episode, Jeff. Apparently Miers argued that it was inappropriate for the ABA to take a position on such a controversial and incendiary issue, which seems to me quite reasonable, whatever her own views about abortion. But I still find her apparent fundamentalist faith disturbing. For me it would not in itself be sufficient to oppose the nomination, but there are obviously plenty of other considerations as well. The objections of mainstream conservatives like Kristol, Krauthammer, Will et al are pretty cogent, and Barnett in the WSJ does have a point. Poor Alexander Hamilton, spinning in his grave. Maybe the hearings will be helpful, but I doubt that they’ll be any more enlightening than the Roberts show–the preview Nick provided pretty much says it all. So on this as in so many other areas I remain a cowardly agnostic. Fortunately the fate of the Republic is not in my wishy-washy hands.
Jeff: I don’t like opening up this can of worms either, but the religious right has done so by insisting that it is appropriate for them to use the Bible and their faith to guide public policy. If, in a particular case, there is a suspicion that a nominee uses his/her religious beliefs in that way, it seems appropriate to ask and appropriate to base one’s vote to confirm or reject on the answer. I agree that many religious people are able to achieve a remarkable degree of compartmentalization, but not all are. Isn’t it an appropriate question to ask a nominee whether he/she compartmentalizes or not? In this case, the testimony of Dobson and others that they have received private assurances about how she will vote based on discussions of her religious beliefs seems to me to make the question legitimate. As for whether or not she believes the Bible is “infallible” or not or whether those who do not accept Jesus are going to hell or not, I am just lifting this straight from her church’s website where they are quite explicit about these being the beliefs of the church. She is not just a casual member. She did not grow up in this church but came to it as a result of a quite deliberate adult conversion. She has faithfully attended, served diligently on its missionary committee, taught Sunday school for years, and is now involved with a group that is separating off from the main body because they don’t like the new minister’s approach to modernizing services, etc. Every indication is that she is a true believer in the doctrine of her church, and that church is quite explicit about the Bible’s infallibility and absolute authority and about the absolute necessity of embracing Jesus or going to hell. See the website at www.vvcc.com and the section on “what we believe” and something like “what it means to be a Christian.”
Ronald Dworkin, one of the country’s leading authorities on the intersection of political philosophy and law, has an interesting piece in the most recent New York Review of Books about John Roberts. He tries to describe assorted forms of judicial philosophy that would make it possible for a judge to separate his/her personal political convictions from a particular legal decision. Interestingly, he suggests that Roberts may fall short on this. He cites Roberts’ answers in the hearings that he has no single overarching judicial philosophy (he seemed to want to insist on this to convey the impression that he is not an ideologue) but rather embraces rather different judicial principles from case to case as the case suggests. Dworkin wonders whether that isn’t in fact a formula for picking and choosing judicial rationalizations to provide cover for simply channeling one’s own beliefs into the judicial outcome. If one’s judicial philosophy provides no constraints on such channeling, then you don’t really have a judicial philosophy but only a kitbag of convenient judicial rationalizations. Does Miers even have a kitbag?
Nick: I don’t believe for a nanosecond that Roberts has no overarching judicial philosophy. That’s just one of the lies that must be told to be confirmed nowadays. As for Miers, I have no idea, but I think that, regardless of all the necessary dissembling that will go on during her hearing, we will get a pretty good idea of who she is. I think she was absolutely right in her quixotic attempt to get the ABA to back off from its unprecedented endorsement of Roe. It speaks well of her toughness and bravery. Although it doesn’t necessarily mean that she is a sure vote against Roe, it looks to me like the signs are saying that she is, and I think that that is a good part of the point of her nomination. Bush figured this was the only way to sneak a social conservative onto the court, and he underestimated the reaction from the right, because he assumed they would understand the dodge. All of the talk about what are and are not proper and reasonable avenues of inquiry, and what the Senate has the right to know, etc., is beside the point. The Democrats have politicized the confirmation process to the point where the Marquis of Queensbury rules no longer apply. Stealth candidates are now the only option.
Jeff: But then this is one more reason (and I don’t disagree that much with your analysis of how we have come to this pass in the confirmation process) that we can’t really think of ourselves as living in a democracy. We have now essentially gutted both the executive prerogative to appoint (since they can only appoint stealth types) and the Senate prerogative to advise and consent (because they are to be systematically denied any real info about the candidates). Forget the public altogether.
I think I agree with you that Roberts does in fact have a well-developed judicial philosophy, and I hope (and largely believe, I think) that in some cases this will lead him to uphold actions of the executive or the legislative branch that he detests or, alternatively, strike down measures as unconstitutional that he wishes were constitutional. But as Dworkin cites him from his hearings, he resolutely and quite clearly denied having any consistent judicial philosophy, so that he wouldn’t have to articulate it, I presume.