A Real Treat For Our Readers: Three Legal Lunatics In One Post

As many know, we are all over the Miers nomination. The Bush White House made this decision, much to the chagrin of many conservatives. We’re among them. A couple days ago, we posted that we have had a change of heart, and were giving our grudging support to Miers. That support was based on an erroneous report. The report? Supposedly, there were nominees withdrawing themselves from the president’s short-list. It was reported by the media that Priscilla Owen was the first, and that Karen Williams was speculated to have been the second. Dr. James Dobson alluded to others that withdrew themselves; that assertion made after speaking with Karl Rove.

Now, it seems that isn’t true. It seems that Judge Owen and Judge Williams have stated to others that they didn’t withdraw themselves. What is even more disheartening is the discovery that people like J. Michael Luttig and Janice Rogers weren’t even on the president’s list. Supposedly this move to keep them off the list was because he would be facing opposition from the Democrats, and a possible filibuster from them, and from the Gang of Fourteen. Yet, the president claimed after his victory in 2004 that he had "political capital" that he intended to "spend."

Now it is a question of how much political capital he truly had. He promised the voters that he would nominate only those in the mold of Justice Scalia and Justice Thomas. We are afraid that Ms. Miers is anything but one. After discussing the events of this week in regards to the nomination, the erroneous reporting of the non-withdrawal withdrawals, and the recent transcripts put up by the Drudge Report of testimony she gave in the early 1990s (testimony regarding her views of the Federalist Society), we can no longer give her the benefit of the doubt.

To give her the benefit of the doubt would be a mistake. She is brushing up on Constitutional Law to prepare for her hearings, which Arlen Specter is pushing for the end of October, beginning of November, so that she doesn’t look like a fool. Now, Hugh Hewitt claims that to interpret the Constitution takes little skill. That is debatable, and I’ll cite O’Connor, Souter, Kennedy, Breyer, and Ginsburg to emphasize this point. These people were deemed qualified to sit on the Supreme Court, and they are the ones that lost the idea of interpreting the Constitution properly. These people were on the majority side in Kelo, which stripped away a basic, fundamental, enumerated right in the Fifth Amendment. They’re also the ones that sided with the majority in Stenberg and Casey; both of which were abortion cases. Instead of readdressing Roe in those cases, they ignored the precedents set in Roe, and made up new precedents.

And if it were so easy, we never would have had decisions like Griswold, Roe, Lawrence, or McConnell. But we do, and it’s due because of two, simple reasons. First, the opposition party didn’t stand up for the judicial philosophy of interpreting the Constitution the proper way. There are arguments over what the proper interpretation of the Constitution is. Some believe in a living Constitution, and others–ourselves at the Asylum included–believe in defending and interpreting a dead one. The Constitution isn’t alive. It’s not breathing. It doesn’t change on a whim, and it surely doesn’t change in fiat from the court. We have a proper process to amend the Constitution, and for far too long the court has acted in the capacity of a super legislature–righting wrongs of the past and present without allowing the rightful legislature to address the problem.

Going back to Mr. Hewitt for a moment, he stated that Ms. Miers would be much like Justice Potter Stewart. Justice Stewart, despite his misgivings about the court being politically active, believed in the move of the court to strike down abortion laws because, in his view, the legislatures were moving too slow. It is not the job, nor is it the decision, of the court to decide who is moving too slow, or whether they are making the right moves. Marbury v. Madison allowed judicial review over the actions of Congress, not over the States. Under the Tenth Amendment, the States have the right to make laws to govern their citizens; those issues not already under the purview of the federal government as enumerated by the Constitution.

To say that Miers would be like Scalia or Thomas is laughable. Her past inclusion into the realm of politics shows that she has a soft spot for women’s rights. She claims that because of she "found Christ" that she’d never support abortion. Just one problem with that thought–stare decisis, the precedent of the court. As an Associate Justice, Miers couldn’t demand a redress of Roe for the court. It takes at least four justices to agree with her. Is there a chance she could get three others to go with her? Sure, but there’s no guarantee that Roe could be overturned. And this seems to be a key sticking point to many that are opposed to her; that being that she hasn’t come out openly and declared herself opposed to Roe.

And she shouldn’t, either. We howled when the Democrats on the committee stated they would ask direct questions of specific cases when it came to the Roberts nomination. We knew that was wrong to do, and we emphasized the Ginsburg Rule–that being the Canon of legal ethics that a judge cannot speak on specific cases. It would cause that judge to be asked to recuse themselves of a particular case out of fear the plaintiff wouldn’t receive a fair review. So it’s irrelevant how Miers would rule on any cases. She shouldn’t be answering such questions.

So, we must go back to Mr. Hewitt, and his assertion that interpreting the Constitution is easy. It is if one embraces the correct judicial philosophy. I would have no worries if Thomas were nominated to the court. At that point, my only concern was whether he could make it through the hearings. But I trust that he would protect, defend and interpret the Constitution properly if he made it to the court. To a point, Mr. Hewitt is correct; Thomas’ informal and extended education–self-imposed–regarding the Constitution would make Justice Ginsburg squirm. But the whole point is where does she stand on the proper way to interpret the Constitution. To many reports are out there showing she might not believe in the concepts of originalism or constructionism.

And I thank my better half for those words of encouragement. I know I’m good, but I’m not the best. But she’s correct: In the end, this nominee must show that she’s not apt to be like outgoing Justice O’Connor, or like the other more liberally-minded jurists. She has a lot to prove, and that’s not just proof for her detractors. That goes for the nation, as well. And this opposition isn’t because we dislike the president. We like him. Hell, we voted for him–twice. We trusted him to do the best job possible, and from his previous two opponents, we know that he has, for the most part.

His judicial nominees have been right on the money. From the appellate courts to the Supreme Court, we have agreed on almost every jurist nominated. We even championed him for his recess appointment of Pickering last year. But we can’t, in good conscience, support Harriet Miers unwaveringly. We have questions. We’ve stated that numerous times, and they all revolve around her philosophy. Yes, she vetted nominees for the president. Yes, she helped assemble the short lists. Yes, she’s an accomplished attorney and former president of the Texas State Bar, Dallas Bar. Yes, she was elected to the Dallas City Council. And yes, she ran a law firm with four hundred employees. But as we have stated recently, where are her qualifications to sit on the bench?

This is not elitism. Yes, we can accept people who were not formerly judges, or did not go to an Ivy League school. This is about whether or not she can be a good judge and interpret the Constitution properly. To date, only one item ever written by her addresses anything out of the Constitution. That paper was regarding the Second Amendment, and that gun rights apply to the individual. That is outstanding, but it is only one particular provision within the Constitution. Does she believe that the right to privacy is as the court dictated–all encompassing, or only applying in cases as enumerated under the Fourth Amendment? Does she adhere to the idea of private property, or does she believe that "public use" is the equivalent of "public good?" (Those are two entirely different ideas, and the court failed to catch that in Kelo.)

What about her views on the Establishment Clause? Does she believe that "under God" is a government-sponsored promotion of a religion? If so, which one? What about the Due Process Clause? See, these are questions that have not yet been answered. By her or the White House, unlike Chief Justice Roberts. When Roberts was nominated, the White House cited his credentials, and wasted little time in releasing the documents to the committee and the public to back up their claims.

And as yet, we have nothing of the sort from the White House regarding Harriet Miers. This site was one of over eighty that ripped through the Roberts documents, and vetted him. We saw that he was qualified–infinitely qualified to hold the Chief Justice’s seat–which caught the Democrats completely unaware. They couldn’t stop him from being confirmed. But now, we have Ms. Miers, and we’re simply told "trust me." I’m sorry Mr. President, but we can’t. We need some sort of reassurance that your nominee will interpret the Constitution faithfully, as it was written by and understood by the Framers. The argument that we have evolved as a society–both socially and technologically–is a cop out of the "living, breathing document" crowd. They claim that because of this we need to look at the Constitution as an evolving document with the times, and no better judge of the process are those that sit on the high court.

My brother would refer to such logic as "bravo-sierra." He would be correct, as we are. The Constitution does not adapt to the times. It adapts to the will of the people should they decide to amend it–first through Congress, then through the people, as a whole. It does not fall to nine unelected people to make those determinations, and that is our fear with Ms. Miers. We are afraid she might be of the school of thought that it does fall to those judges to make such determinations. If this is true, this must be released to the public, and she must be stopped.

The president must remember that we are not just in a war abroad, but also one at home. It is a war for the courts, and for the soul of the nation. The judiciary is supposed to be the defender of our rights, not their usurper. If Miers is the type of judge that will be like a Rehnquist, like a Scalia, like a Thomas, then we have nothing to fear. If she isn’t, then we have received an O’Connor Lite who will be far more concerned with perceived rights, instead of enumerated ones, and could possibly uphold O’Connor’s reputation as being a "key swing vote" on the court instead of a jurist interpreting the law properly.

The Bunny ;)
Mistress Pundit
Publius II