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Monday, October 10, 2005

Bainbridge, Miers, and conservatives' discontent

The Prawfsblawggers were kind enough to invite me back for another short guest-blogging stint.  (No more complaints about "The DaVinci Code", I promise).

A few thoughts about Dave's recent post about Harriet Miers, Prof. Bainbridge, and Armageddon.  I've been in the middle -- or, maybe, way out in the boonies -- on the Miers nomination.  On the one hand, I said (and still believe) on the day of her nomination that " Harriet Miers, like Justice O'Connor, has been a trailblazer and a pioneer.  . . .  Like Justice O'Connor, Ms. Miers has broken through barriers in the law, serving as a leader and role model, and impressing everyone with her decency and her sharp intellect. She would be a worthy and appropriate successor to Justice O'Connor, and would carry to the court a commitment to constitutionalism, judicial restraint, and the rule of law."  I have also expressed my disagreement with many of the initial anti-Miers arguments put forth by conservative lawyers and commentators.

On the other hand, I also posted at NRO a (somewhat rambling) complaint about the tendency of even this Administration to -- in public anyway -- distance itself from the Federalist Society, instead of endorsing and praising it:

Just as important, the Federalist Society has provided, in no small part, the intellectual heft for a large part of today's conservative movement in politics. For an Administration that owes its existence to this movement to, time and again, treat the Society like a goofy yearbook photo or an embarasing secret is more than irritating — it is shameful. If the Federalist Society really were a politically useful but in fact weird and non-mainstream outfit, then perhaps the "Fed Soc? Who?" attitude would be understandable. But, if course, the Society and its ideas are — among informed and thinking people, anyway — entirely respectable and, while certainly conservative, entirely "mainstream."

If Ms. Miers really does harbor the tiresome, skittish, establishmentarian, protect-the-guild wariness toward the society . . . then I am inclined to think that she has not earned (no matter what church she attends, no matter how good a person and impressive a lawyer she is, no matter how much she abhors abortion, no matter how loyal she is to this President, and no matter how Rehnquist-like her record turns out to be) conservatives' support. I hope, though, that these reports [i.e., about Miers' lack of enthusiasm for the Federalist Society] are false, and that she and others will make clear that her past statements do not reflect her present views.

Many of my students have worked very hard and sacrificed time for the Federalist Society. In so doing, they have improved their law school and the education of their classmates. (It's worth noting that left-leaning students benefit, too, from an exchange of views and from the competition and challenge that the Society provides). Having worked for, voted for, taken hits for, and defended this Administration and the legal and moral principles for which it purports to stand, these students deserve better than a nominee who appears to regard — again, if the accounts are accurate — them and their ideas as a source of irritation rather than a source of inspiration. (Of course, and to be fair, it could be — and given what I have heard about her, it seems likely — that even if Ms. Miers held misguided views about the Federalist Society more than a decade ago, she has learned enough in the meantime to put them aside. Still, the point remains: hard-working conservative law students deserve to be praised and endorsed by this administration, not snubbed or hidden away.)

So, I am torn.  I believe that Ms. Miers has had an impressive career and that she is "qualified" to sit on the Supreme Court.  And, believe it or not, I actually am inclined to "trust" the President when it comes to judges.  Still, I was hoping for Judge Alito or Judge McConnell.  Although I am, I suppose, a "conservative" -- at least, when it comes to the courts -- I am not sure that it makes so much sense (as Dave points out) for the Administration to invite and stage -- for public-education purposes -- high-drama, high-stakes conflicts about the post-Griswold Court, if such conflicts are likely to result, at the end of the day, in the defeat of a nominee and a prolonged vacancy.  That said, I do wish that nominees would state forthrightly, if only to establish the point's bona fides, that Roe v. Wade was badly reasoned and wrongly decided.  And I do think it is important for Schumer and Biden to be engaged when it comes to the markers they lay down for what constitutes a "mainstream" view of the Constitution.  I am strongly committed to the notion that religious voices and commitments are welcome in the public square, but I'm not wild about the strategy that some of Ms. Miers's supporters seem to have adopted, namely, "don't worry, she's an evangelical Christian."  I am not particularly worried that Ms. Miers will be "another Souter," but I don't like hearing conservatives talk as if all that matters (even if it does matter) is "voting right."

Dave, can you help me out?


Posted by Rick Garnett on October 10, 2005 at 10:08 AM | Permalink


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This was an interesting post and discussion. I am curious about the following statement:
"That said, I do wish that nominees would state forthrightly, if only to establish the point's bona fides, that Roe v. Wade was badly reasoned and wrongly decided. "

Why does it help establish the point's bona fides for a nominee to say that Roe was wrongly decided? Does it legitimize the position, and, if so, for whom? My post's original thrust, I hope, was to suggest that it might ultimately be self-defeating for conservatives to believe that hearings can be educational for that (very small) segment of the population that watches them direction, let alone the (much larger segment) that hears about them on the evening news. Wouldn't it be more educational to, well, run an advertising campaign?

Posted by: Dave Hoffman | Oct 10, 2005 10:44:32 PM

Rick, thanks for engaging. I think I understand where we both stand. On the question of whether Catholicism could present a conflict, I plead ignorance. For Jews, it will depend on whom you ask; and I wonder whether the same might be true of catholics (that's a question, not a claim). I'm also instinctively inclined to be wary of anyone who thinks that certain principles she holds will always coincide, rather than conflict with, other principles. So, for instance, I am bothered by the fact that political liberals (among whom I count myself) generally seem to believe that the Constitution happily coincides with their views; and the same goes with conservatives. I'm led to believe that political considerations are actually shaping jurisprudential commitments, and I don't think that's a happy story. I'm similarly troubled by the claim that catholic religious beliefs could never conflict with jurisprudential beliefs; and wonder whether it is another case of one driving the other. But I hasten to add (again) that I know so little of Catholic theology that I'm not charging anyone with anything; just raising the question. I will take a look at your posts on Mirror.

As for your conversations with Miers, I certainly didn't realize that you had first-person encounters upon which to base your opinion. But the Souter question still lurks. Clearly there were some people who vouched for him as a reliable conservative vote. Either they misread him or he changed. (I suppose there could be other explanations as well, of course.) And so I wonder, short of that coded phone call (which, from Dobson's telling, doesn't sound to be very coded at all), how you can be so certain.

On credentials, I'm not claiming that her credentials aren't impressive for what they are. But it isn't immediately apparent that this is the job she is suited for. She may well prove us all wrong, but surely you can understand why people are inclined to wonder. . . .

Posted by: Hillel Levin | Oct 10, 2005 4:00:20 PM

Dear Hillel,

Thanks for responding (or replying . . . I cannot remember which is which). I think I agree with you on (1). I have no problem with questions and answers about the Fed Soc; I'd welcome them, actually. But I want "conservative" nominees and Senators to talk candidly (and enthusiastically) about what the Fed Soc is, does, and believes. And, on (2), I think you make a strong point. (I would add, though -- and I wrote a lot about this over the summer at Mirror of Justice -- that I believe it will almost never, and maybe never, be the case that a judge's faithful Catholicism would actually create a conflict with an appellate judge's duties, properly understood).

On your point about credentials, I'm in a tricky position. I am kind of an "elitist", I suppose, in that I actually do prefer my Justices to be experienced judges with well considered and widely published views on constitutional law. (Of course, the old Chief didn't meet this preference, but I'm a huge fan of his -- and a former employee). On the other hand, I think HM's "qualifications" compare fairly well with many previous Justices. (Writers like Kristol, Will, and Krauthammer -- with whom I often agree -- have, I think, been too harsh on this point). And, I am willing to concede that one's life-story/ experiences / obstacles overcome *can* count, in a way, as a credential. As for my prediction that she would carry with her to the Court a commitment to the rule of law, it was based not simply on the Administration's statements, but on my own impressions of her, formed during a few meetings and conversations. But, to be clear, I received no coded phone calls like the one (it sounds like) Dobson got. (Hey, where's my call?).

Posted by: Rick Garnett | Oct 10, 2005 3:41:51 PM

Another question.

You say that Miers "has been a trailblazer and a pioneer. . . . Like Justice O'Connor, Ms. Miers has broken through barriers in the law, serving as a leader and role model, and impressing everyone with her decency and her sharp intellect. She would be a worthy and appropriate successor to Justice O'Connor, and would carry to the court a commitment to constitutionalism, judicial restraint, and the rule of law."

I certainly agree with you that she has been a trailblazer and pioneer, and a worthy role model. I don't personally know, but I have no beef with your claim that she is decent (in the best possible sense) and possesses a sharp intellect. But how are those possibly credentials for the Supreme Court? More importantly, how can we possibly know that she "would carry to the court a commitment to constitutionalism, judicial restraint, and the rule of law?" What evidence do we have of any of that, other than the assurances of Bush and his team?

I recall that when Souter was nominated, Buchanan received a phone call from a high-up who put out the word that there was nothing for jurisprudential conservatives to worry about--and Buchanan advised conservatives to embrace Souter.

I have little doubt that Miers actually is conservative. But I haven't a clue about her jurisprudence; her constitutionalism; her commitment to the rule of law; or her position on judicial restraint. And I wonder what sources you have for these claims.

In short, she could turn out to be the best thing since sliced bread for conservatives; she could turn out to be the next great justice; she could turn out to be the next O'Connor. But how would we know?

Posted by: Hillel Levin | Oct 10, 2005 3:09:37 PM

Thanks Rick. Let's see if we can hash this out a bit.

1. On the Federalist Society. I take it your problem is NOT with asking for the nominee's thoughts on, and relationship to, the Federalist Society; but rather with the belief held by some liberals that the Federalist Society is some kind of suspect organization. I think this is because people reasonably assume that a nominee closely allied with the Federalist Society is likely to vote a certain way on certain cases. I think your analogy to the ACLU is apt. No doubt nominees' relationships with the ACLU has been a bone of contention in the past. Some conservatives would probably want to know whether a nominee had close ties with the ACLU, and might vote one way or another on that basis. I don't see any problem doing the same based on Federalist Society membership. These positions are all the more reasonable since we are forced to use these proxies to figure out what a nominee's positions are likely to be. And let me repeat: I'm a fan of the Fedearlist Society.

And,like I said, I'm not sure you can take Miers' pronouncements on the FS seriously, especially considering her statement about "Warren."

2. Religion. Being Jewish, I share your sense that there is an inappropriate mistrust about the loyalty of some Americans as a result of their religious affiliations, beliefs, and commitments. But I recall that Roberts did say (or was quoted as saying) that he would have to recuse himself in cases where his religious views conflicted with his jurisprudential views. Therefore, I think those questions were fair to ask. Compared with Miers, Roberts' answer at least suggested him to be a person of principle. That is, he could entertain the notion that there may be a conflict, that he could identify the conflict, and that he would not be so driven by his religious commitments that he would vote that way. With Miers, the single credential the Bush team seems to rely on is her religious affiliation.

Posted by: Hillel Levin | Oct 10, 2005 3:02:22 PM


On the first issue, I guess I don't see a tension. That is, I *do* think it is bad, or unseemly, or unjustifiable, to question a nominee (like Roberts) about the Federalist Society, *if* the premise of the question is that the Federalist Society is (more than, say, the ACLU or the ABA) a suspect or disreputable group, or that membership would be something troubling. I should also make clear -- more clear than I did, apparently, in my NRO post -- that my concern is not with Ms. Miers's *affiliation* with the Society. Instead, it is more with what I perceive as her (I hope now revised) *attitude* toward it, and with the message that this attitude could send to young lawyers and students.

On your second point, I think we agree. That said, I'm more bothered (perhaps just because I'm Roman Catholic, but also given the history in this country of the "Catholics are not trustworthy citizens" argument) by the premise of the questions about Roberts Catholicism -- which I took to be that he could not be trusted, given the Pope and all that, to follow the law as opposed to the "dicates of the Vatican" -- than I am about the "you can be sure that Ms. Miers is pro-life because she is an evangelical" line. After all, that Ms. Miers is an evangelical makes it quite likely, I think, that she is pro-life. So, "she is an evangelical" is responsive to a concern about her views on "social issues." Like you, though, I think that some people have pointed to her faith for different purposes, which might be more troubling.

Posted by: Rick Garnett | Oct 10, 2005 2:36:13 PM

Rick, welcome back!

I'd like to ask you a question that arises, in part, from my post immediately below yours (wherein I link to your NRO piece).

With Roberts, some conservatives argued that the federalist society line of questioning was McCarthyesque and uncouth. With Miers, it is now the conservatives themselves who have fixated on the nominee's relationship to the federalist society. Is there a tension there?

Similarly, conservatives expressed dismay when liberals asked questions about Roberts' religious commitments; and yet, as you point out, the administration's strategy with Miers seems to involve trotting out Dobson, Land, and other reassuring religious conservatives to vouch for her born again bona-fides.

I'm not asking what any of this says about the nominees. I'm asking what it says about the tenor and nature of the debates surrounding them. Is it really all about political expedience?

Posted by: Hillel Levin | Oct 10, 2005 1:12:26 PM

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