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What Would People Think?

Thursday, October 06, 2005

Apparently, I'm Supposed To Have An Opinion

Just because I'm an opinionated blowhard who goes to law school, it seems my readership expects me to have an opinion on Harriet Miers. Silly, silly readership. I'm in law school! I've been far too busy to form an opinion on issues that will affect the law.

But, what with the constant nagging and death threats, I guess I have to post something. So here goes....let's find out how fast Ben can manufacture an opinion on the fly. (Incidentally, I meant to post my magnum opus on abortion at the beginning of the semester. I had an outline for it and everything. God knows where that outline is now. Probably somewhere in my bedroom. But finding a particular piece of paper in my bedroom is like searching for a particular piece of hay in a haystack.)

The reactions to Miers have been fun. Generally, I've been hearing a lot of "what the hell?" My friend Ian Millhiser - a Superhuman who requires neither food nor oxygen because he eats and breathes politics - referred to the nomination as "Christmas." He was joyfully referring to the fact that the nomination makes Bush look terrible b/c it smacks of cronyism, has pulled his poll numbers down even lower b/c his own base hates him right now, and ....well, just generally Miers is not that impressive. Upon further consideration of the possibility of a right-wing filibuster of Miers (not likely, but each potentially liberal thing about her that comes out makes it possible) ....which would mean Republicans forfeit all right to say a filibuster based on judicial philosophy is out of bounds... Ian rephrased his opinion: "It's like Christmas and sex and strawberries dipped in chocolate all rolled into one." I'm paraphrasing based on memory, but that's the gist of it.

Even though I'm President of the Duke Law Democrats, I haven't quite been keeping up with the political ramifications. So I'm going to try and form a half-baked opinion of various aspects of the nominee herself. I'll be basing this on an excellent and growing database on All Things Miers by compiled by Left Coaster. It makes no claims to neutrality (the name is a dead giveaway) but it doesn't seem to be aiming to sabotage her nomination.

My reactions to what is known about Miers as of October 6, 2005.

So she contributed to one of Al Gore's presidential campaigns in the 1980s. So she contributed to the Bush-Cheney recount fund that helped Bush steal Florida in 2000. (Hey, I make no pretense of neutrality, either.) So what? Earl Warren was a Republican. So was David Souter. I'm interested in what her jurisprudence would be and - especially in the South - party isn't always an indicator of political or legal philosophy.

As the illustrious Mr. Woodhead points out, Miers's loyalty to Bush is probably the number one reason he nominated her. Loyalty is everything to George W. Bush. And I have a hard time imagining a woman who called Bush "the most brilliant man I've ever met" ruling against him. Miers is part of that crew - which also includes Karl Rove and Karen Hughes - that worships the ground Bush walks on.

Aside from the fact that nobody these days likes a crony COUGHMichael BrownCOUGH, what does this ultimately mean? Bush has only until January 2009 to be President. Would a Justice Miers continue to favor scarily unlimited executive power with a President Obama?

Legal Experience and Judiciary
It's not just that she has never been a judge. Lots of justices were not judges. It's that she doesn't seem to have really handled any major constitutional issues. She's got a long career in the law and has done some excellent work as head of the Texas Bar Association, but that doesn't make her an Erwin Chemerinsky or a John Roberts.

I must disagree with David about how much expertise is needed to be a judge and whether it's a short leap from law school and lawyering to judging. David, you may have a cooler blog than me, but you're wrong on this one. When I was two months into law school, I also thought "hey this is easy, anybody can do this." True, I was panicking and thinking I wouldn't make it through law school at that time...but that had more to do with the amount of work, not its difficulty.

It's taken me a month of floundering about without any comprehension of business in my Business Associations class to realize that there's a certain level of expertise, comfort, and background knowledge that's required to practice law in a certain area. It's hard to be a generalist these days. When it comes to the Supreme Court, I think experience in Constitutional law is critical. I don't see much in Harriet Miers. To make an obvious comparison, John Roberts won around 25 cases before the Supreme Court. Miers has argued only 3 cases in federal court, according to a Westlaw search. None before the Supreme Court.

And Justices don't take too kindly to incompetent colleagues. They hounded out Warren Burger (memorably mocked by Thurgood Marshall as "Chiefie Baby"). The only thing Antonin Scalia hates more than a liberal is an idiot.

Executive Power, National Security, and Civil Liberties
Well, I pretty much talked about this under Cronyism. Can't think of anything new to add here. Unlimited executive power to take away people's rights is scary.

Corporatism and Economic Issues
So she's worked for corporations. If she worked at a major law firm, of course she's worked for corporations. Tell me something useful.
The only worrisome tidbit for me here is her advocacy of "tort reform" (i.e. capping liability of defendants in civil cases). The Supreme Court has made a couple of bone-headed decisions placing a Constitutional limit on punitive damages which, in my not-so-humble opinion, entirely defeat the deterrent purpose of such damages. How are you going to deter a mega-rich corporation by tying the punitive damages to the puny "actual" damages? Oh, and the conservatives on the Court somehow read this limit into the Constitution out of the Due Process Clause. Talk about "legislating from the bench."

Socio-cultural issues
She's pretty clearly personally pro-life. She doesn't seem the type who would make the distinction between personal beliefs and what the government should do, so my guess is she's anti-Roe. Here's hoping. But who knows?
She's actually done some really good stuff for minorities in her time.

Law and Order and Civil Rights
Actually, this is an area where I really like Harriet Miers. Really like her. She once wrote about crime that we must address its root causes: "the social issues that foster criminal behavior, such as: lack of self-esteem or hope in some segments of our society, poverty, lack of health care (particularly mental health care), lack of education, and family dysfunction." EXACTLY!

She's also worked with a group called Exodus Ministries (not to be confused with an anti-gay group of the same name) which I find to be AWESOME! EM is a Christian organization dedicated to helping ex-prisoners re-integrate into society. As Jesus said "I was in prison and you visited me." Helping out after prison is close enough in my book. Chalk this up into another of my "Christians acting like Christians" examples.

While it's still a leap to translate personal activities into jurisprudence, this gives me hope that a Justice Miers wouldn't be out to wreck the rights of defendants in the criminal justice system...as Chief Justice Rehnquist and, frankly, Justice O'Connor were.

Environmental Issues
See, now this is precisely one of those areas where the lay person and the non Constitutional law expert wouldn't know what they are talking about. The interaction of the Court and environmental policy has been quite complex and indirect. Scalia has been leading the oblique charge against environmental policy by.....

Holding that plaintiffs suing to make the executive branch enforce environmental legislation lack standing to sue. Holding that policies meant to protect the coastland are "Takings" of the property rights of people who own coastal property. (Gov't must therefore pay them for the right to keep them from dev
eloping on this land....making environmental regulation prohibitively expensive.)

A justice that believes the Commerce Clause power of Congress should be very narrow could strike down the entire federal apparatus of environmental regulation (as John Roberts once hinted he might do with the Endangered Species Act).

No real predictions on Miers...but no reason to hope.

I'm a bit offended by the media's coverage of her "born again" experience. Having undergone just such a moment in my own life - that is, the moment I accepted Jesus Christ as my Savior - I find the coverage to be a tad condescending. The subtext of all this coverage - the only reason the media would call it "news" - is that this conversion must mean she's a religious nut. Commenters on dailykos have made that inference explicit.

How unsophisticated. How shallow. How wrong. My faith in Jesus doesn't make me a follower of Falwell and it doesn't shut down my reasoning skills. I've been spending much of the past semester looking at how Christians throughout the ages have approached the State and their relationship to it. It's a rich and varied literature of very human people wrestling with very profound ideas and trying to figure out the meaning of their faith and what God would want them to do with regards to an issue or a government. My faith has informed my political views, but it has not made me a mindless drone. I'm unwilling to make such an assumption about Harriet Miers, either.

Ok, so the last category in the Left Coaster post is "Women's Issues and Other topics"...an odd way indeed to say miscellaneous. I'm all blogged out now. I still don't have a final opinion on Miers and I don't know if I ever will.

In the meantime, dear reader(s), I've given you more opinions than you can shake a stick at. Try it. You'll find out the stick is quite unshakeable.


  • Thank you, I am indeed satisfied.

    By Anonymous Jacob, at 10/06/2005 8:48 PM  

  • Can't... shake... the... stick...

    I'm in agreement on the coverage of the "born-again" thing. People on the Left tend to forget that the ranks of evangelical Christians contain Jimmy Carter as well as Jerry Falwell.

    At least we know that someone with Miers' concern for poverty isn't going to go resurrecting Lochner on us. That's somewhat comforting given the range of choices available.

    By Blogger Jeff, at 10/07/2005 12:27 AM  

  • As long as she doesn't try to overturn Roe v. Wade, I'll be satisfied.

    But on the non-"mindless liberal" side of things, I am impressed by the quote you cite from her about crime. And Jeff makes a good point about how the Left tends to treat Christianity. Rebelling against the Falwells of the world should not drive out the Carters (or for that matter, the Starks). In fact, the Left's approach to religion has been one of the key reasons the Right has been able to hijack it.

    Now I'm off subject. But anyway, I too am half-satisfied. Still want the magnum opus though.

    By Blogger Mike, at 10/07/2005 1:31 AM  

  • Re: the evangelical thing, Post columnist E.J. Dionne points out how the Right is trying to use Miers' religion to their advantage too...

    By Blogger Jeff, at 10/07/2005 10:41 AM  

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