Thursday, October 27, 2005

Ozzie Goes Through Withdrawal Sans Harriet

Harriet Miers withdrew her nomination for the Supreme Court today.   Her letter to president flip flop cites her concerns that the demand for documents relating to her duties as White House threatened the independence of the executive branch and the separation of powers.  This letter remains one of the few public documents where Ms. Miers expounds on any constitutional issue.  I do understand her separation of powers concerns, but she also somehow failed to mention that she was the head of the president’s search committee.  In essence, this top 50 attorney in the country makes a strange tacit admission here.  As the person doing the choosing, she failed to anticipate that her chosen candidate might be pressured to expose her work as White House counsel to senate scrutiny. Well, you know what they say about the attorney who represents himself or herself.  It’s probably also true for the one who chooses herself, that is unless you’re looking for a vice-president. This isn’t the time to pile on and I am guilty of that here, but it continues a pattern of marginal competence from White House staff and the administration.

I suspect the big reason that Ms. Miers withdrew was that someone found an old speech she had made to a Dallas women’s group about the importance of “choice” in reproductive matters.  As far as the right was concerned, they might as well have turned up pictures of Harriet Miers holding hands with Hillary Clinton and Cindy Sheehan.  Over the last ten days, the President had worked hard to sell Miers as both a good evangelical who would follow conservative principles of legal construction by voting to overrule Roe v.Wade at her first opportunity.  I never was sure what that had to do exactly with being qualified to sit on the Supreme Court. Since 2000, respect for the court as an institution has suffered.  One sad result is that the debate on both sides over prospective justices has degenerated into bald political jockeying  about reproductive rights.  It’s as if the Supreme Court were just a rarified legislature that votes only on abortion.

I don’t know what it means to be qualified to be a Supreme Court Justice.  The demonstrated ability to sustain clear, complex, analysis does seem to be one of the markers everyone can agree on in principle.  The second quality is harder to talk about and that’s judicial temperament.  John Roberts came across as having it during his confirmation.  I’d argue that Robert Bork, who was clearly qualified intellectually, didn’t show it.  There is a third quality, particularly while the court remains 5-4 on so many issues, that has not been mentioned at all and that’s a sense of the institution itself.  Whatever one thinks of Earl Warren, who happens to be one of my heroes, his signature achievement on the court was Brown v. Board, the school desegregation case that changed America.  Warren fwiw had never been a judge before Eisenhower kicked his political rival to the Supreme Court, understood that the Court could not enforce its own very controversial decision.  He, therefore, insisted that the decision be unanimous.  Compare that to the signature decision of the Rehnquist court that decided the 2000 election and the impact it had on fracturing both America and respect for the court.  Whatever one thinks of Warren, that was an instance that demonstrated that the former governor of California brought political wisdom to the court. It’s a quality that’s not just missing from the current court as a whole, but also from the leadership of both political parties.  Fwiw, had Warren been nominated today, civil libertarians would have strongly opposed him because of his role in the Japanese internment in California.  We never know what happens on a single issue when someone gets that life appointment.

Most scholars agree that John Marshall was the greatest Supreme Court Justice and that he was extremely conservative.  It was Marshall who took a case about political cronyism, lame duck appointments, in Marbury v Madison,  and more or less unquestionably made law by asserting the concept of “judicial review” , which became the basis of the Supreme Court’s power as the third branch of government.  Even there, he split the difference.  Marshall let the democrats win the case, but in doing so he established a very conservative check on the actions of elected officials.  I’d personally like to see Roe v. Wade upheld, but it’s far more important to me that whoever serves on the court have both wisdom and vision.  

I wish Ms. Miers well.  I know it’s hard to identify qualities like “wisdom” and “vision”, unless you happen to be named “John Minor Wisdom”or "Learned Hand", but our nation is headed into what will be very critical times and the court needs both more than it needs a specific ideology either left or right.  My fear is that the current administration cares little about either and lacks the capacity to recognize it even if it did care.  

Random Thoughts

If W was told by God to appoint Harriet Miers, what's he going to tell God now?

Now that she's back to being White House counsel, does W ask her to head up the search committee again?

How about Michael Brown? He's a lawyer who has similar experience on the bench to Miers and he's already been before congress. He even has a paper trail, though it's a little soggy.

Maybe Rafael Palmeiro? Very loyal. testified in front of Congress very well early in the year. Not only has a record, has several of them. Also worked for same company as Bob Dole for a time. Good for Hispanic vote as well. Long record of being part of 9 man team.

Pat Robertson, appeals to the religious base. has a law degree. has long record of opinions and writings on a variety of Constitutional issues. Proven abhorrence of anyone named "Hugo" . Father was a senator.


At 10/30/2005 07:08:00 AM, Anonymous Anonymous said...

CL said I’d personally like to see Roe v. Wade upheld, but it’s far more important to me that whoever serves on the court have both wisdom and vision.

I gotta say that losing Roe v Wade means hacked-up young women, often self-mutilated. "Far more important" seems odd to me, CL. I personally can't imagine wisdom or vision overturning Roe v Wade. But then I'm a woman who lived thru the era of hacked-up young women -- friends of mine even. Not anecdotes, but first hand watching the blood pour onto the floor.

//As for the present court -- nothing harmed the whole sacred(small 's') concept of the rule of law beyond influence more than the completely wretched decision to stop the votes being counted. Never can we claim purity again before the developing democracies. Nepots will always go 'Wink Wink -- oh yeah, you gotta count the votes even if you don't like the results, nudge, nudge.' This was a catastrophically short-sighted decision.

People said to me then that my frantic concern was because Al Gore didn't 'win.' I said NO -- it was because the sacred (small 's' -- no voice of God) idea of democracy itself had been indelibly defiled.

At 10/30/2005 10:53:00 AM, Blogger Chancelucky said...

I would say that it's hard to imagine wisdom and vision not allowing one to appreciate the history prior to Roe v. Wade. I'm simply frustrated with America reducing one's qualification for the Supreme Court to how one stands on a single issue.

I do happen to believe that there are morally defensible positions that might make certain abortions illegal.

These would include stances that
1) call for availabilty of and good universal information about birth control, including morning after type contraception

2) care for children and adults who have actually been born

3) all those opposing abortion, actually adopting the children of American single mothers who are unable to care for their child. In the alternative, those opposing abortion would pay for the support and education of the children they want to keep alive.

4) universal free child care and pre school programs.

5) health insurance for all, especially pregnant women.

6) enforcement of child support laws for fathers.

I would still argue about "choice" per se and the fact that it is the mother's body, but I could see an anti-abortion stance that included the above as defensible. I woudn't agree with it myself, but....


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