10/27/2005: By withdrawing, Harriet Miers took one for the good of the country, but shame on Bush for nominating her in the first place.
I’ll state for the record: I tried as hard as I could to give Miers a fair shake, largely because Bush has a very good batting average with judicial picks. That she had no judicial experience was not a big deal to me–neither Chief Justice Rehnquist nor Byron White had such experience either. I also figured that, with her experience in business law, she would provide a dimension of experience that is missing from the current court. (And most cases that go before the Court will involve corporate law, antri-trust, and commerce.) I was willing to wait for her to reveal herself at her confirmation hearings.
That she has been an evangelical Christian for 25 years is quite admirable. That she is most likely pro-life in both her personal life (she went to great lengths to take care of her ailing mother) and professional life (she is regarded as pro-life on abortion by those who know her) is also admirable. That she used to (maybe still does) carry a gun–a .45 (YES!!!)–definitely scores points with me. None of those things in specificity tell me how she arrives at conclusions.
And that is the point about conservatives: we are largely principle-based. Yes…we like to have the right outcomes (who doesn’t?) We also care about process. Anyone who has taken algebra knows that it’s not just about getting the right answer, but also using the right reasoning to get there. Otherwise, you can have someone who may have staunch conservative views today who ends up moving to the left over the course of his or her career. (Contrast Scalia and Rehnquist with Kennedy and Souter. That says it all.)
We conservatives are also sick and tired of Presidents who say, “trust me”, as they provide stealth nominees. Kennedy and Souter have been complete disasters.
And I’m not simply talking about abortion: they would subjugate the Constitution to developments in international law. In the Kelo decision, they have inflicted communist capitalism on us by empowering government to confiscate land from one private entity and redistribute it to corporations. They joined the lefties by supporting reverse discrimination, which throws merit to the wind.
They also opposed the line-item veto, which gives the President the power to enforce fiscal responsibility.
THIS is why we need someone with a track record–either as a jurist or as a published scholar on Constitutional issues.
(1) The United Nations has always been flirting with a gun ban. Currently, John Bolton reflects Bush policy: he opposes it. However, in the event of a Democratic administration, someone of different mind may give the U.N. the impetus to pass it. If that EVER happens, the court fight will make Roe v. Wade look like an afternoon nap. We need a nominee who believes that our Constitution is not up for de facto Amendment by international choice. :::locking and loading my VEPR .308:::
(2) The Kelo disaster has been a wakeup call to Americans. It is a direct attack on free markets. Without private ownership of land, markets can never be truly “free”. We need a nominee who accepts the free market implications of the 5th Amendment, and that the Takings Clause is not the Wal-Mart Empowerment Act. Otherwise, we have moved from being the USA to being the USSA. Religious freedom (a Christian underpinning) and private enterprise helped make America great. Both are also essential elements of a free society. Lose either one and we’re no longer free. Unless a SCOTUS nominee accepts that premise, I say vote ‘em down!
(3) The Roe v. Wade, Doe v. Bolton, and Lawrence decisions each reflect a level of judicial activism: they have taken social issues that have no Constitutional precedent and short-circuited any democratic recourse. We conservatives would prefer a nominee who believes that it is not the role of the judge to be the arbiter of social policy. One can support abortion rights without supporting Roe.
Bush now has a golden opportunity to establish himself as the great champion of judicial restraint. That requires a decisive fight with the likes of Biden, Boxer, Kennedy, Schumer, Specter, Feinstein, Leahy, and Clinton. That fight is necessary for the good of this country. That is the tragedy of the Miers debacle: the Miers hearings would be about Miers, not about judicial activism versus originalism.
If he picks Michael Luttig, Janice Rodgers Brown, Karen Williams, Edith Jones, Priscilla Owens, or Harvie Wilkinson, conservatives will give Bush all the support in the world. The fight will be on, and it will be up to the GOP majority in the Senate to [crap] or get off the pot.