Ms. Kagan told the Judiciary Committee that “I think you can look to my whole life for indications of what kind of a judge or justice I would be.” That review provides several important categories of evidence. First, she has written and spoken generally about the role judges play in our system of government. In her Oxford University master’s thesis, for example, Ms. Kagan wrote that “new times and circumstances demand a different interpretation of the Constitution” and that judges may “mold and steer the law in order to promote certain ethical values and achieve certain social ends.” Several years later, as a law professor, she wrote that “the judge’s own experience and values become the most important element in the decision” of most Supreme Court cases. “If that is too results oriented,” she wrote, “so be it.”
The US Supreme Court is a powerful national legislature of 9 people with no court of appeal. It is irresponsible for the US Senate to confirm anyone to that legislature who is inclined to just find ways to express their own values to remold the country to fit their preferences.
One wonders which social ends Ms. Kagan feels most strongly about and whether she'll find 4 other justices some time in the next few decades who share her desires to achieve those ends.
When the Texas state government wanted a slice of Miers family land at a Superfund clean-up site for a highway off-ramp a friend of Harriet Miers was chosen to sit on a panel to determine how much money the land was worth.
The resulting six-figure payout to the Miers family in 2000 was despite the state’s objections to the "excessive” amount and to the process used to set the price. The panel recommended paying nearly $5 a square foot for land that was valued at less than 30 cents a square foot.
Texas law says that in condemnation cases, a judge must appoint three “disinterested” special commissioners to hear evidence, determine the “injury or benefit” of the state’s action to the property owner, and rule on what, if anything, the state should pay for the property.
But there was an accumulation of shared interests - dating back years - among several of the parties that assembled in state District Judge David Evans’ courtroom to settle the Miers’ case.
Campaign finance reports in Dallas show that Miers’ law firm, Locke Purnell Rain & Harrell, had contributed at least $5,000 to Evans’ political campaigns between 1993 and 2001. That included a $3,000 contribution in 1998, the year before the Miers’ condemnation case appeared in Evans’ court.
One of the three commissioners whom Evans appointed to hear the case was Peggy Lundy, a close professional friend and political ally of Miers.
Crony capitalist George W. Bush (who made his wealth as a front man to get taxpayer funds to pay for a sports stadium that made Bush and his associates rich) wants to appoint a crony to the US Supreme Court. But I so do not want the United States to be governed with Latin American style government ethics. That way lies ruin. That way lies corruption.
The Bush dynasty is a pox on America.
John Fund reveals why James Dobson, of the Focus on the Family Christian radio show, has publically stated his conviction that Harriet Miers will vote to repeal Roe v. Wade if she is confirmed to the US Supreme Court.
The call was moderated by the Rev. Donald Wildmon of the American Family Association. Participating were 13 members of the executive committee of the Arlington Group, an umbrella alliance of 60 religious conservative groups, including Gary Bauer of American Values, Richard Land of the Southern Baptist Convention, Tony Perkins of the Family Research Council, Paul Weyrich of the Free Congress Foundation and the Rev. Bill Owens, a black minister. Also on the call were Justice Nathan Hecht of the Texas Supreme Court and Judge Ed Kinkeade, a Dallas-based federal trial judge.
What followed, according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"
"Absolutely," said Judge Kinkeade."I agree with that," said Justice Hecht. "I concur."
Kinkeade and Hecht are both friends of Miers.
James Dobson was on the phone call and supposedly indicated right then that he was getting off the line to make calls in support of Miers.
So now the Senate Democrats face a dilemma. If the Senate Republicans split on Miers should the Senate Democrats vote for Miers as a way to heighten an internal Republican Party split? If they do then they might not like the result, at least on abortion.
Will Senate Republicans who do not want to appoint a lightweight Bush crony to the Supreme Court bow to pressure from anti-abortion Republicans now and vote her on against their best judgement?
Dick Polman of the Knight Ridder Newspapers puts forth a very interesting theory to explain Bush's appointment of Harriet Miers to the US Supreme Court:
But the Miers nomination isn't about abortion at all. It's about putting somebody on the court who will protect the legacy Bush cares about most: the expansion of presidential power during the war on terrorism.
And who best to rule in favor of those expanded powers - the authority to detain "enemy combatants" indefinitely without trial; to prosecute them in Bush-created military tribunals and to limit their right of appeal; to quiz them under flexible rules of interrogation - than a jurist who had been legal counsel and staff aide to the president who sought those powers?
Clearly, the betting inside the White House is that Miers, a public defender of the Patriot Act and a legal adviser on wartime presidential powers, would be more dependable than the justice she would replace. It was Sandra Day O'Connor who warned, in a 2004 ruling that partly reined in Bush's expanded powers, that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
Read the whole thing.
For evidence to support his argument Polman points to a Oct. 11, 2005 speech White House Chief of Staff Andrew Card delivered to the Hudson Institute conservative (neoconservative?) think tank where Card laid on heavily the idea that the Congressional and Judicial branches of government are preventing the President from doing what he ought to be able to do. (PDF format)
And I have watched as she has counseled the president as he has had to address some of the most significant challenges in the history of our country, challenges, by the way, that require a constitutional understanding because the demands on the president are frequently challenged by those who want to interrupt the president’s ability to be president. And our great Constitution does have Article 1 and we are Article 1, and we are represented by people who serve on Capitol Hill, and we have a wonderful branch outlined in Article 3 that provides justice, makes sure that the rule of law is respected and understands that there are consequences of people who don’t follow the law.
But it’s Article 2 that I find to be the most challenging to understand. Article 2 is the president. It’s the executive branch of government. But Article 2 doesn’t talk about the executive branch of government much; it talks about the role of the president as the leader of the executive branch of government. Harriet Miers understand that Constitution, and she has helped guide the president at a time when many of the constitutional outlines have been challenged by others who are also mentioned in the Constitution, Article 1 and Article 3.
So Harriet is an outstanding person and she will be terrific on the court. She will make a great justice and I am excited that the president has nominated her, and I look forward to her hearings, I look forward to her confirmation, and I look forward to her taking that oath. It means so much to all of us. The most moving experience that I have had in government have always centered around a hand going on a Bible, a right hand being raised to God, and words being administered, and in their simple words, simple words: preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic.
Well so much for the balance of power between the branches. Card and Bush want Executive Supremacy on national security issues. As an aide to Bush Miers dutifully supported Bush's attempt to expand his powers and he hopes she'll continue to do that if she makes it onto the Supreme Court.
Every White House effort to cool conservative opposition to Miers seems to backfire, including Bush's explanation of why the White House is stressing Miers' evangelical Christianity.
"People are interested to know why I picked Harriet Miers," Bush said Wednesday. "They want to know Harriet Miers' background ... And part of Harriet Miers' life is her religion."
On Thursday, Tony Perkins, president of the conservative Family Research Council, called the administration's efforts to woo religious conservatives by stressing Miers' religion "out of bounds."
"We are the last people on Earth to object to the news that she is a committed Christian," Perkins said in a statement. "By the same token, this fact is not grounds for certifying her to us or to the public. ... Inferences drawn from an individual's religious affiliation have no place in decisions to nominate or confirm a judicial appointee."
Jan LaRue, chief counsel of the conservative Concerned Women for America, issued an extensive position statement Monday, saying, "We find it patronizing and hypocritical to focus on her faith in order to gain support for Miss Miers."
Even Christians know that being a Christian does not automatically make one qualified to serve on the US Supreme Court. Bush is condescending to these people and they've noticed it.
While George is condescending on religion his wife is busy condescending with false charges of sexism.
Laura Bush said yesterday that some critics of Harriet Miers may be motivated by sexism, echoing an allegation that earlier infuriated conservative activists opposed to the Supreme Court nominee.
On NBC's "Today" show, Laura Bush joined President Bush in defending Miers as the "most qualified" person her husband could have appointed to the Supreme Court. She also said it's "possible" that questions about Miers's intellectual qualifications are sexist in nature, a charge other defenders of Miers have made publicly and in private conservations with conservatives opposed to the nomination.
Steve Sailer points out that if we wanted politically correct condescension from a First Lady the nation would have chosen John Kerry.
Do conservatives really need to be abused by the unelected First Lady for the high crime of diversity insensitivity toward First Family cronies? We could have had Teresa Heinz Kerry do that for us, couldn't we?
Translation: I can consider gender factors in making my choice, but anyone who raises questions about whether this non-judge is qualified to sit on the nation's highest bench is doing so because she's a woman.
Does that smack of a double standard? Would conservative pundits really be praising a man with the same lack of judicial experience or intellectual writing?
In fact, I would argue that resorting to the old you're-attacking-her-because-she's-a-woman argument is itself a bit sexist, because you're asking potential critics to hold Miers to a different standard because she is a woman. (And don't believe politicians don't think about this. Some Republicans were salivating at the prospect that the Democrats might have to oppose Janice Rogers Brown, a black woman, and tick off two constituencies.)
The Bush-Miers letters were among more than 2000 pages of documents released this week by the Texas State Library and Archives Commission. In a 1997 Hallmark greeting card (adorned with a photo of a dog), Miers sent along belated birthday wishes and noted that "You are the best governor ever--deserving of great respect!" In another note (penned on an American Greetings card), Miers wrote that she hoped Bush's daughters realized that their parents were "cool." A 1995 Miers note thanked Bush for a visit, adding that an airplane ride with the governor was "Cool!" Sadly, the document dump did not include Miers's e-mail or IM messages, which are surely filled with loads of sappy emoticons.
Bush's power is declining in part because of the accumulation of his mistakes and in part because he can't run for reelection again.
Also see my previous post "Alexander Hamilton On Harriet Miers Appointment".
"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure." (The italics are mine.)
Barnett points out that Miers is a perfect example of what Hamilton was talking about.
Harriet Miers is not just the close confidante of the president in her capacity as his staff secretary and then as White House counsel. She also was George W. Bush's personal lawyer. Apart from nominating his brother or former business partner, it is hard to see how the president could have selected someone who fit Hamilton's description any more closely. Imagine the reaction of Republicans if President Clinton had nominated Deputy White House Counsel Cheryl Mills, who had ably represented him during his impeachment proceedings, to the Supreme Court. How about Bernie Nussbaum?
"No. She’s something new: a complete mediocrity.”
Well, she's not new for the Bush Administration. Mediocrity is what I expect from the Bushies. I can't say I'm disappointed by the Miers appointment. My expectations are too low to feel disappointment. The proper feeling? Disgust.
Ann Coulter told Hannity and Colmes that Miers is an "embarrassment". She told Bill O'Riley: "I don't think she's qualified for the job" and "We are talking about the Supreme Court" and "First woman head of the Dallas bar assocation? We're talking about the Supreme Court". "This shows stunning arrogance by the President" and "This is laughable it is so absurd". You go girl!
Coulter points out the extremely low odds that the best person for the job of Supreme Court justice would just happen to be President's personal lawyer. Bush isn't taking this seriously. Yes, it is the Supreme Court we are talking about. An appointee ought to have exceptional qualities and those qualities should have been recognized by others.
Third and finally, some jobs are so dirty, you can only send in someone who has the finely honed hatred of liberals acquired at elite universities to do them. The devil is an abstraction for normal, decent Americans living in the red states. By contrast, at the top universities, you come face to face with the devil every day, and you learn all his little tropes and tricks.
Conservatives from elite schools have already been subjected to liberal blandishments and haven't blinked. These are right-wingers who have fought off the best and the brightest the blue states have to offer. The New York Times isn't going to mau-mau them — as it does intellectual lightweights like Jim Jeffords and Lincoln Chafee — by dangling fawning profiles before them. They aren't waiting for a pat on the head from Nina Totenberg or Linda Greenhouse. To paraphrase Archie Bunker, when you find a conservative from an elite law school, you've really got something.
During that presidential campaign, Miers contributed $1,000 to the Albert Gore for President Committee, as well as $1,000 to the Democratic National Committee. Gore lost the Democratic primaries to Dukakis.
Wobble wobble wobble. (to the sound of a turkey saying "gobble, gobble, gobble")
Yet when the announcement came, the criticism came from a direction few expected: deep within conservative ranks. And Mr. Bush's efforts this week to reassure his base is making rifts within this highly diverse coalition more apparent.
Social conservatives want assurances that Ms. Miers will share their views on flash-point issues, such as abortion and same-sex marriage, and that she is genuinely one of them.
Conservative intellectuals, on the other hand, want someone with the legal acumen to roll back the reach of judges.
Bush has done plenty that his base ought to be angry about. Maybe the Harriet Miers nomination will serve as the straw that broke the camel's back and more people on the Right will begin to criticise Bush for a much larger range of Bush failures and policies that are anything but conservative.
A new CBS News poll shows only 26% of the American public thinks the US is headed in the right direction and only 37% approve of the job Bush is doing. Only 225 have "a lot "of confidence in Bush appointees and 30% have "some" confidence in Bush appointees. In the face of this situation Bush appoints a mediocrity "or of being in some way or other personally allied to him" to the highest court in the nation.
Bush's political tone deafness used to be viewed as a sign of his strength and determination. Now that Iraq has developed into a full debacle and he's made some other big mistakes the more common reaction appears to be be "Oh no, what's he done this time and what's he going to do next?".
Update: Check out this graph "Historical Bush Approval Ratings". The trend is downward.
House Majority Leader Tom DeLay suggested such a review of judges last week in response to the Terri Schiavo case, words that Democrats interpret as a threat to impeach judges.
Pennsylvania Sen. Rick Santorum, chairman of the Senate Republican Conference, says judges who violate the law have been impeached and that the Constitution gives Congress the task of judicial oversight.
"Should we look at situations where judges have decided to go off on their own tangent and disobey the statutes of the United States of America? I think that's a legitimate area for oversight," Mr. Santorum told ABC's "This Week."
In American judges have come too much to resemble legislators appointed for life. They need to be made more accountable. They live for longer times now and decline further into senility before retiring. Also, liberal law schools have been teaching constitutional theories that justify too large a role for court decision making at the expense of the branches of government run by elected officials.
I say all this even though sometimes I actually agree with the decisions courts make. The problem is that regardless of whether you favor a particular policy change the courts should not have such large roles in setting policies. It might seem quicker to get a policy changed by court decision. But it is ultimately corrupting and undermines the democratic process.
Take Roe vs. Wade for example. I agree with those who see this decision as judicial overreaching. While I am morally ambivalent about abortion and couldn't tell you where life ought to be considered to begin or end (and actually have some really complex thoughts on the subject that trouble me) I see that decision as harmful to the democratic process. Some states had already legalized abortion before that decision. Absent that Supreme Court decision other states would have followed suit. It would have taken years of tiresome participation of activists in campaigns, letters to the editor, speeches, rallies, and so on. But the outcome of legalization in some states would have been far more legitimate precisely because coalitions would have been built and the populaces of many states would have been persuaded to support the legalization. Also, some states would have kept abortion illegal and that would have left their majorities more satisfied with the legitimacy of the democratic process.
Changes in policies that come about as a result of democratic mechanisms enjoy greater acceptance even among people who oppose them. If you fight the good fight and lose you have to accept that the voting majority disagreed with you and your challenge is to argue with that majority and make your case. But when judges just wave their gavel and change a policy you face a much larger challenge in trying to persuade people to your point of view. Judges can make a reversal of their chosen policy require a constitutional amendment. This effectively means a super-majority has to favor a change. So the game is loaded on the side that the judges decide to support.
Ideologically speaking the Supreme Court is not going to stay put in the next 4 years. The US Supreme Court has moved to the political Left as Sandra Day O'Connor has moved Left. O'Connor has provided the swing vote on just about all close Supreme Court decisions. The other justices were frequently predictable and only O'Connor's decision could not be foreseen (or so I have read on a number of occasions). Many Court watchers expect O'Connor to retire in the next 4 years and therefore whether Bush or Kerry is elected will determine whether the Supreme Court will move Left or Right.
"Sandra Day O'Connor's departure from the Court would provide the next president with an opportunity to remake the Court, and this is especially true if Kerry is elected," says Lee Epstein, study co-author and the Edward Mallinckrodt Distinguished University Professor of Political Science and Professor of Law at Washington University in St. Louis.
On the other hand, the study suggests that Rehnquist's departure may not have a dramatic impact on the political composition of the Court.
"Our paper shows that if Rehnquist leaves and Bush is reelected and the Senate stays Republican, the Court will not change very much — won't become more liberal or conservative," Epstein said. "But, if the Democrats regained control of the Senate OR the White House (or both), we predict the Court would move to the left.
"Regardless of the composition of the Senate, the data suggest that Kerry will be in the near-historic position to move the Court—and, crucially, to move the Court in a direction that favors his vision of public policy," she continues. "Bush is in much the same position as Kerry — with one very critical distinction: only with a Republican Senate in play will he, in all likelihood, be able to shape it in a way that reflects his political preferences."
Bush so far has been unable to appoint anyone to the Supreme Court. If Bush gets reelected then any appointments he makes to replace retiring conservative justices will not shift the Court. But any appointments he makes to replace retiring liberals or O'Connor will shift the Court Rightward. Similarly, if any liberals or O'Connor retires and Kerry is elected then Kerry will be able to shift the Court Leftward.
In a nutshell: Bush's invasion of Iraq may cost him his reelection and as a consequence cause a shift of the Court in a Leftward direction. The plaintiff's bar will make out and property rights will be less safe. A more leftward leaning Court will enable more social engineering. Systems of racial preferences to discriminate against white people will be protected and may well expand. But women who want to have a federally recognized right to abortion will get their way.
If Bush gets to choose then maybe he will appoint judges who will restrict the power of the federal government to encroach on matters better decided by state and local governments. But it is not clear that Bush do any better with his picks on racial preferences. Bush may (probably will) a appoint racial preferences favoring Hispanic such as White House lawyer and Texas chum Alberto Gonzales to the Supreme Court. Such an appointment may turn out to be as bad or worse than O'Connor by moving even further Leftward.
Still, once a reelected Bush has made a pseudo-conservative Hispanic appointment he might then appoint a real conservative for a following appointment if a second justice retires.. Whereas with Kerry we will get pure bred left-liberals for each appointment. So as bad as Bush would be on the Supreme Court Kerry would be worse.
The likely effect on the Supreme Court of a Kerry win strikes me as the strongest argument for Bush to win reelection. However, I still think the Republicans would be better off on the long run if Bush and the necons were seen to have pursued policies (immigration amnesty, in favor of racial preferences, big social spending increases, the Iraq Debacle, etc) that so alienated the Republican base that Bush lost. Regardless of whether Bush or Kerry wins America will lose.