Monday, October 03, 2005

Judicial Irony

It's interesting that the Reuters story on the Miers nomination, "Bush pick for high court outrages conservatives," mentions Abe Fortas:

Manny Miranda, head of a conservative coalition called The Third Branch Conference, said Miers was "the most unqualified choice" for the high court since Lyndon Johnson tried to make Abe Fortas chief justice in 1968.

Fortas's name came up in the discussions over the judicial filibuster. He is the only Supreme Court nominee ever filibustered, though it was a bipartisan effort without support of either party's leadership.

The Republicans are still itching to pull the trigger (the poorly named "nuclear option") on a Democratic judicial filibuster, an opportunity much more readily available had Bush nominated someone in the mold of Thomas or Scalia, both of whom he has explicitly praised. But judging from initial reaction, it sounds that in the impossible event Harriet Miers were to draw a filibuster, it would be more likely to come from conservatives rather than liberals.

It's hard to know which side of the fence Bush is playing. The line between genius and sheer stupidity is often very fine.

Steve Holland, "Bush pick for high court outrages conservatives," Reuters (October 3, 2005, 1:00pm).


David M. Smith said...

Manny and others seem to be full of themselves with hyperbolic denouncements!

How could Ms. Miers be any worse than at least four sitting judges? Most law students wouldn’t and couldn’t be much worse.

I’ve never considered President Bush to be a genius. However, he is much smarter than he sounds when he gives a spontaneous answer to an ad-hoc question. There is no way to know for certain what kind of Supreme Court Justice Ms. Miers will be. I trust the judgment of President Bush more than the judgment of Manny Miranda, Bill Kristol, David Frum and all the others who are mostly looking for a fight.

Lawrence Gage said...

David, maybe they're just looking for a fight because they're contrarians.

I'm sure that Ms. Miers will be wonderful... just like Mr. Bush's Divine Iraq policy, his great success preserving the integrity of our nation's borders and keeping American jobs from going overseas, and the stupendous way he's kept Federal spending in check. Roight.

In all seriousness: I'm sure Ms. Miers is a wonderful conservative. Unlike liberals, conservatives believe there's more to being a good Supreme Court justice having the right ideology. A good justice needs also to have the right intellectual training and experience.

Sadly, all the signs point to the nomination being more of Bush's well-known m.o.: rewarding "loyalty" over independent thought.

I hope I'm wrong about this nomination's prospects. In fact I'd pay money to be wrong. There's just so much at stake, and the President has tragically flushed a great opportunity down the toilet.


David M. Smith said...

Hi MJ,

I agree that there is more to being a good judge than being a conservative. I don’t even know that Ms. Miers is even a conservative. A good judge does not judge based on ideology at all. A good judge looks at the intent of the law and applies the intent to the situation. If the law says a person can’t own a gun, a judge shouldn’t make an exception. If the law says a person has a constitutional right to own a gun, a judge shouldn’t make an exception [I know restricting felons does seem reasonable].

If you define conservative as someone who has a divine Iraq policy, someone who is committed to closing our boarders, someone who wants to end outsourcing, and someone who is against deficit spending, then President Bush is definitely not a conservative. I don’t recall President Bush as ever having advocated any of those positions. [He does have an Iraq policy that seems a little incoherent, but the words divine and war just don’t go together.]

It doesn’t seem fair to judge President Bush based on what you or others wish he would advocate and do. It does seem fair to judge him on what he advocates and what he does. If Ms. Miers gets confirmed and she votes with Ginsburg, Breyer, and Stevens, then President Bush will end up with a very tainted legacy. I am concerned that she might not be the justice we need, but I would be concerned no matter who was nominated. President’s Reagan, Nixon, and Bush I, all nominated a judge who did not vote as advertised.

Lawrence Gage said...

It doesn’t seem fair to judge President Bush based on what you or others wish he would advocate and do.

Miers could vote the right way, but the question is whether she will reason the right way. It's not just a question of right or wrong; it's also a question of competence: she has ABSOLUTELY NO EXPERIENCE. Even if she comes to the right conclusion, doing so with poor reasoning sets bad precedents. For example, the majority opinion in Brown v. Board of Education has set all kinds of bad precedents, despite arriving at the morally correct conclusion.

On top of that, people elevated to the Court have a habit of acquiring inflated egos. She may be good now, but think what'll happen after her apotheosis. She has no habit of writing good jurisprudence, so how could she acquire that discipline once she's become a god among men?

Bush made a promise when we campaigned and voted for him that he would appoint good, conservative judges to the Court. In picking his personal lawyer over the scores of eminently qualified, he has spat on the people (those millions of red-state values voters) who re-elected him. The Bushes have a way of forgetting about their base and going back on promises.

The conservative movement has worked for decades to put good, qualified judges on the bench. For cronyism, Bush is arrogantly flushing decades of work.

David M. Smith said...

Hi MJ,

I agree with you that in most cases the process and the reasoning are just as important as the result or outcome. Judges should have solid reasons for all of their decisions. However, there are also times and situations where the outcome is more important than the process. If someone breaks the law to prevent a murder, the outcome of preventing the murder is more important than the process of following the law. The highest priority right now is getting a Justice confirmed who will judge the law and not make the law. Harriet Miers seems to be confirmable and she seems to be a person who will not make law.

President Bush may have been too clever for his own good. However, there have been plenty of Judges with a long track record who have not performed as expected once on the Supreme Court. There is also no reason to believe Ms. Miers doesn’t have the ability to Judge based on solid reasoning. It is fair to make a case that a Judge with a track record would be preferable. However, it is also fair to make a case that a person who has a close relationship with President Bush is preferable because he knows for sure how she will perform.

The charge of cronyism by conservatives has no place in this debate. It is cheap slander, not an argument against the Miers nomination, to use the term.

Perhaps the Supreme Court would be enhanced to have at least one jurist who did not work their way up through the judicial ranks.