Wednesday, October 5

More on Miers

For those of us who think the Supreme Court is at least as important as the War on Terror (in and of as much as because of how it can effect the WoT), I bring you some good writing on both sides. The first is by George Will, whom I think we all know of and respect:

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's "argument" for her amounts to: Trust me. There is no reason to, for several reasons.


In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked -- to ensure a considered response from him, he had been told in advance that he would be asked -- whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, "I agree." Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, "I do."

Emphasis is, as always, mine. I highlight this because signing McCain-Finegold was one of the few places this President has disappointed me. He effectively yelled "Hot Potato!" and threw it over to the Court, and the Court decided that while hard-core groupsex porn is Constitutionally protected speech, dissin' a sitting Senator on TV or the Radio just before an election ain't.

Unless, of course, you are an editor of a major newspaper, TV talking head, or the like. The Court would have been more intellectually honest if they had simply said that all animals are equal, but some animals are more equal than others. That is one of the reasons that a Court nomination is so important.

Contra Will, we have Reg Brown, courtesy of the Volokh Conspiracy:

Will’s fourth argument is the most dangerous and absurd. He suggests Miers shouldn’t be approved because she hasn’t shown a "talent" for "constitutional reasoning" honed through years of "intense interest" and practice. Judging takes work, but the folks who think "constitutional reasoning" is a talent requiring divination, intense effort and years of monastic study are the same folks who will inevitably give you "Lemon tests," balancing formulas, "penumbras" and concurrences that make your head spin. The President sees through that mumbo jumbo and recognizes that good Justices are the ones who focus on the Constitution’s text, structure and history and who call balls and strikes. Bush is in favor of demystifying the Court and the Miers choice is part of that effort. Will seems to be buying into the "Nine Wisest Men" mythology that is a root cause of the Court’s aggrandizement of power over time.

I'm troubled by this appointment, because it is like a grenade thrown into the middle of the Left-Right fight. We don't know what type of grenade, or which side she will hit hardest. Like Souter, she is an enigma. Unlike Souter, Bush has known her, and trusted her, for many years. Frankly, I expect that he expects her to essentially be his proxy on the Supreme Court. Bush can't appoint himself, so he has appointed a close confidant that he knows will vote the way he would.

While I understand that, I'm not sure even I can support it, and if I were a Democrat (after the frontal lobotomy and 10 years in a re-education camp :-) that would be my first reason for opposing her. Indeed, as they know practly nothing else about her either, it would have to be about their only reason for opposing her.

As it is also about our only reason to support her.

I'm not sure I want her to pass. I wanted to ram Janice Rodgers Brown down the Swimmer's throat sideways. If she doesn't get a thumbs-up, maybe the base can put enough pressure on Bush to make that happen.

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