Mark Malaszczyk
Is Harriet Miers worthy?
By Mark Malaszczyk
It goes without saying that President Bush's nomination of Harriet Miers to the Supreme Court has the nation abuzz with judicial debate in a fashion that we have not seen in regards to the High Court since the Clarence Thomas confirmation. Comparisons to Justices O'Connor & Ginsburg are almost unavoidable. The arguments both for and against the Miers nomination have been spirited and eye-opening. Senator Sam Brownback [R-KS] has expressed doubts about her qualifications, but Senator Harry Reid [D-NV; Minority Leader] stated that "with so much at stake, we shouldn't rush to judgment about this or any other nominee, but even at this early stage of the confirmation process, I will say that I am impressed by what I know about Harriet Miers." [1] Hard-core liberals and knee-knocking conservatives have put forth a series of concerns over Miers' qualifications; the key question to ask is whether or not she deserves a fair and balanced confirmation hearing.
One of the arguments made by Miers' critics is her lack of experience on the bench. American politics is a living, breathing contradiction; we grow incredibly cynical and distrustful of experienced individuals, yet the first concern about a new appointment is what type of experience does he/she have? Is it vital that someone have experience as a judge to be considered for the Supreme Court? The Framers did not believe so; in fact, one need not even be an attorney in our system to rise to the level of Supreme Court Justice. Arizona Governor Janet Napolitano actually believes that Miers' lack of experience on the bench could be viewed in a positive fashion. In fact, Napolitano has argued "that's what senate confirmation hearings are for, ...to really get to what does this person believe, what are the attitudes toward separation of powers, toward the First Amendment, toward the right of privacy, all those things, because once you're on the high court, you're on the high court," she said. But Napolitano said she kind of likes the fact that Miers hasn't been a judge. "I think that having some people on the court who have a variety of world experience, or difference experiences, is not a bad thing," she said. "Having a court made exclusively of people who've gone from appellate court right to the supreme court doesn't give us, I think, sometimes the breadth of experience that would be useful." [2]
Cynics piggyback the 'experience argument' with Miers' lack of publications; this is based on the conviction that a nominee to the High Court should have written extensively over the course of his/her career. This is false logic; quantity of publications should not supersede quality of jurisprudence. One could go to any public golf course at 6 a.m. and find people who have been golfing for 40 years; but if one was facing a 'life-or-death' round of golf, who would they select as a partner? A 'lifetime duffer' or sixteen-year old phenom Michelle Wie?!? Ruth Bader Ginsburg has written extensively. But what has she written? According to Phyllis Schafly of Human Events Online, Ginsburg's writing includes a "230-page book called Sex Bias in the U.S. Code, published in 1977 by the U.S. Commission on Civil Rights. The purpose of this book was to show how the proposed Equal Rights Amendment (for which she was an aggressive advocate) would change federal laws to make them sex-neutral and "eliminate sex-discriminatory provisions."
Ginsburg called for the sex-integration of prisons and reformatories so that conditions of imprisonment, security and housing could be equal. She explained, "If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected." (Page 101)
She called for the sex-integration of Boy Scouts and Girl Scouts because they "perpetuate stereotyped sex roles." (Page 145)
She insisted on sex-integrating "college fraternity and sorority chapters" and replacing them with "college social societies." (Page 169)
She even cast constitutional doubt on the legality of "Mother's Day and Father's Day as separate holidays." (Page 146)
Ginsburg called for reducing the age of consent for sexual acts to people who are "less than 12 years old." (Page 102)
She asserted that laws against "bigamists, persons cohabiting with more than one woman, and women cohabiting with a bigamist" are unconstitutional. (Page 195)
She objected to laws against prostitution because "prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions." (Page 97)
On the other hand, her view of the traditional family was radical feminist. She said that the concept of husband-breadwinner and wife-homemaker "must be eliminated from the code if it is to reflect the equality principle," (Page 206) and she called for "a comprehensive program of government supported child care." (Page 214)
Ginsburg wrote that the Mann Act (which punishes those who engage in interstate sex traffic of women and girls) is "offensive." Such acts should be considered "within the zone of privacy." (Page 98)
She demanded that we "firmly reject draft or combat exemption for women," stating "women must be subject to the draft if men are." But, she added, "the need for affirmative action and for transition measures is particularly strong in the uniformed services." (Page 218)
An indefatigable censor, Ginsburg listed hundreds of "sexist" words that must be eliminated from all statutes. Among words she found offensive were: man, woman, manmade, mankind, husband, wife, mother, father, sister, brother, son, daughter, serviceman, longshoreman, postmaster, watchman, seamanship, and "to man" (a vessel). (Pages 15-16)
She even wanted he, she, him, her, his, and hers to be dropped down the memory hole. They must be replaced by he/she, her/him, and hers/his, and federal statutes must use the bad grammar of "plural constructions to avoid third person singular pronouns." (Page 52-53) [3]
Ginsburg's ideas are certainly not in the mainstream of American society; her writings are actually ample fodder for a wonderful argument against her elevation to the status of one of the nine arbiters of American constitutional law. To be fair, Miers' lack of publications should not to crucial to her confirmation.
Another concern is that Harriet Miers is an evangelical Christian. The Republicans have to be careful in managing this fact. They cannot cater to conservative Christian groups with the idea that Miers will vote the right way while advancing the argument that "it is wrong to bring a judicial nominee's faith into the discussion about his merits, and any attempt to do so amounts to religious bigotry." [4] Miers faith should not be an issue in her confirmation hearings. She has as much a right to her evangelical beliefs as Ruth Bader Ginsburg has to her secular humanist/civil libertarian views. The main issue is the approach that Miers brings to the bench — is she a strict constructionist or a judicial activist? Be prepared for the Democrats to fear-monger about Miers applying her faith in her rulings as they attempt to hold on to the last branch of government that they can still control with a crucial swing vote that would allow the Supreme Court to continue legislating from the bench.
Then there is the abortion issue. Miers has written and spoken against legalized abortion throughout her legal career. Abortion advocates fear a reversal of Roe v. Wade with her swing vote on the Supreme Court. Fear not, my left-winged friends; even a full reversal of Roe would not automatically end legalized abortion in the United States. It would throw it back to the legislative branches of government at both the federal and state levels {where it belongs}. Miers' anti-abortion stance is no more important to this process than Ginsburg's pro-abortion position. {That's right...it is pro-ABORTION, not pro-CHOICE. If it were pro-CHOICE, then these advocates would support my choice to own a firearm, my choice of schools for my children, and my choice of charitable contributions, not using my money via taxation for programs that I may oppose.} A confirmation process is for the purpose of gaining insight into a nominee's judicial philosophy, not to gain answers on how he/she would rule in specific instances. Miers is entitled to the Ginsburg Standard. [5]
Lastly, a major fear of the left is that Miers, as a Bush sycophant, will rule in accordance with the President's views on key social issues with moral undertones, most notably abortion and homosexual marriage. It is time for a reality check here; every President who has nominated an individual to the Supreme Court has believed that the carefully selected nominee would rule in a manner consistent with his views. President Eisenhower nominated Earl Warren as Chief Justice to the Supreme Court, only to later express deep regret about the decision ;[6] not because Ike was a segregationist, as some detractors like to argue, but because he was an originalist and never envisioned the type of judicial activism that would come out of the Warren Court. Everyone knows that Sandra Day O'Connor did not turn out to be as conservative as Ronald Reagan had hoped. Ergo, it should not be assumed that Miers will rule in lockstep with the Bush Agenda. She should be given a tabula rasa by the Senate Confirmation committee, and not be labeled as a mole for the Bush Administration.
In conclusion, this author is arguing neither for the confirmation nor the rejection of Harriet Miers by the United States Senate. My thesis is that she deserves a reasonable and objective examination of her ability and potential to serve as an interpreter of the United States Constitution on matters that will reach the Supreme Court. She does not deserve to be the victim of a liberal witch-hunt that seeks to denigrate her, destroy her character, discredit the President, and protect judicial activism. Let the games begin.
NOTES:
© Mark Malaszczyk
It goes without saying that President Bush's nomination of Harriet Miers to the Supreme Court has the nation abuzz with judicial debate in a fashion that we have not seen in regards to the High Court since the Clarence Thomas confirmation. Comparisons to Justices O'Connor & Ginsburg are almost unavoidable. The arguments both for and against the Miers nomination have been spirited and eye-opening. Senator Sam Brownback [R-KS] has expressed doubts about her qualifications, but Senator Harry Reid [D-NV; Minority Leader] stated that "with so much at stake, we shouldn't rush to judgment about this or any other nominee, but even at this early stage of the confirmation process, I will say that I am impressed by what I know about Harriet Miers." [1] Hard-core liberals and knee-knocking conservatives have put forth a series of concerns over Miers' qualifications; the key question to ask is whether or not she deserves a fair and balanced confirmation hearing.
One of the arguments made by Miers' critics is her lack of experience on the bench. American politics is a living, breathing contradiction; we grow incredibly cynical and distrustful of experienced individuals, yet the first concern about a new appointment is what type of experience does he/she have? Is it vital that someone have experience as a judge to be considered for the Supreme Court? The Framers did not believe so; in fact, one need not even be an attorney in our system to rise to the level of Supreme Court Justice. Arizona Governor Janet Napolitano actually believes that Miers' lack of experience on the bench could be viewed in a positive fashion. In fact, Napolitano has argued "that's what senate confirmation hearings are for, ...to really get to what does this person believe, what are the attitudes toward separation of powers, toward the First Amendment, toward the right of privacy, all those things, because once you're on the high court, you're on the high court," she said. But Napolitano said she kind of likes the fact that Miers hasn't been a judge. "I think that having some people on the court who have a variety of world experience, or difference experiences, is not a bad thing," she said. "Having a court made exclusively of people who've gone from appellate court right to the supreme court doesn't give us, I think, sometimes the breadth of experience that would be useful." [2]
Cynics piggyback the 'experience argument' with Miers' lack of publications; this is based on the conviction that a nominee to the High Court should have written extensively over the course of his/her career. This is false logic; quantity of publications should not supersede quality of jurisprudence. One could go to any public golf course at 6 a.m. and find people who have been golfing for 40 years; but if one was facing a 'life-or-death' round of golf, who would they select as a partner? A 'lifetime duffer' or sixteen-year old phenom Michelle Wie?!? Ruth Bader Ginsburg has written extensively. But what has she written? According to Phyllis Schafly of Human Events Online, Ginsburg's writing includes a "230-page book called Sex Bias in the U.S. Code, published in 1977 by the U.S. Commission on Civil Rights. The purpose of this book was to show how the proposed Equal Rights Amendment (for which she was an aggressive advocate) would change federal laws to make them sex-neutral and "eliminate sex-discriminatory provisions."
Ginsburg called for the sex-integration of prisons and reformatories so that conditions of imprisonment, security and housing could be equal. She explained, "If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected." (Page 101)
She called for the sex-integration of Boy Scouts and Girl Scouts because they "perpetuate stereotyped sex roles." (Page 145)
She insisted on sex-integrating "college fraternity and sorority chapters" and replacing them with "college social societies." (Page 169)
She even cast constitutional doubt on the legality of "Mother's Day and Father's Day as separate holidays." (Page 146)
Ginsburg called for reducing the age of consent for sexual acts to people who are "less than 12 years old." (Page 102)
She asserted that laws against "bigamists, persons cohabiting with more than one woman, and women cohabiting with a bigamist" are unconstitutional. (Page 195)
She objected to laws against prostitution because "prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions." (Page 97)
On the other hand, her view of the traditional family was radical feminist. She said that the concept of husband-breadwinner and wife-homemaker "must be eliminated from the code if it is to reflect the equality principle," (Page 206) and she called for "a comprehensive program of government supported child care." (Page 214)
Ginsburg wrote that the Mann Act (which punishes those who engage in interstate sex traffic of women and girls) is "offensive." Such acts should be considered "within the zone of privacy." (Page 98)
She demanded that we "firmly reject draft or combat exemption for women," stating "women must be subject to the draft if men are." But, she added, "the need for affirmative action and for transition measures is particularly strong in the uniformed services." (Page 218)
An indefatigable censor, Ginsburg listed hundreds of "sexist" words that must be eliminated from all statutes. Among words she found offensive were: man, woman, manmade, mankind, husband, wife, mother, father, sister, brother, son, daughter, serviceman, longshoreman, postmaster, watchman, seamanship, and "to man" (a vessel). (Pages 15-16)
She even wanted he, she, him, her, his, and hers to be dropped down the memory hole. They must be replaced by he/she, her/him, and hers/his, and federal statutes must use the bad grammar of "plural constructions to avoid third person singular pronouns." (Page 52-53) [3]
Ginsburg's ideas are certainly not in the mainstream of American society; her writings are actually ample fodder for a wonderful argument against her elevation to the status of one of the nine arbiters of American constitutional law. To be fair, Miers' lack of publications should not to crucial to her confirmation.
Another concern is that Harriet Miers is an evangelical Christian. The Republicans have to be careful in managing this fact. They cannot cater to conservative Christian groups with the idea that Miers will vote the right way while advancing the argument that "it is wrong to bring a judicial nominee's faith into the discussion about his merits, and any attempt to do so amounts to religious bigotry." [4] Miers faith should not be an issue in her confirmation hearings. She has as much a right to her evangelical beliefs as Ruth Bader Ginsburg has to her secular humanist/civil libertarian views. The main issue is the approach that Miers brings to the bench — is she a strict constructionist or a judicial activist? Be prepared for the Democrats to fear-monger about Miers applying her faith in her rulings as they attempt to hold on to the last branch of government that they can still control with a crucial swing vote that would allow the Supreme Court to continue legislating from the bench.
Then there is the abortion issue. Miers has written and spoken against legalized abortion throughout her legal career. Abortion advocates fear a reversal of Roe v. Wade with her swing vote on the Supreme Court. Fear not, my left-winged friends; even a full reversal of Roe would not automatically end legalized abortion in the United States. It would throw it back to the legislative branches of government at both the federal and state levels {where it belongs}. Miers' anti-abortion stance is no more important to this process than Ginsburg's pro-abortion position. {That's right...it is pro-ABORTION, not pro-CHOICE. If it were pro-CHOICE, then these advocates would support my choice to own a firearm, my choice of schools for my children, and my choice of charitable contributions, not using my money via taxation for programs that I may oppose.} A confirmation process is for the purpose of gaining insight into a nominee's judicial philosophy, not to gain answers on how he/she would rule in specific instances. Miers is entitled to the Ginsburg Standard. [5]
Lastly, a major fear of the left is that Miers, as a Bush sycophant, will rule in accordance with the President's views on key social issues with moral undertones, most notably abortion and homosexual marriage. It is time for a reality check here; every President who has nominated an individual to the Supreme Court has believed that the carefully selected nominee would rule in a manner consistent with his views. President Eisenhower nominated Earl Warren as Chief Justice to the Supreme Court, only to later express deep regret about the decision ;[6] not because Ike was a segregationist, as some detractors like to argue, but because he was an originalist and never envisioned the type of judicial activism that would come out of the Warren Court. Everyone knows that Sandra Day O'Connor did not turn out to be as conservative as Ronald Reagan had hoped. Ergo, it should not be assumed that Miers will rule in lockstep with the Bush Agenda. She should be given a tabula rasa by the Senate Confirmation committee, and not be labeled as a mole for the Bush Administration.
In conclusion, this author is arguing neither for the confirmation nor the rejection of Harriet Miers by the United States Senate. My thesis is that she deserves a reasonable and objective examination of her ability and potential to serve as an interpreter of the United States Constitution on matters that will reach the Supreme Court. She does not deserve to be the victim of a liberal witch-hunt that seeks to denigrate her, destroy her character, discredit the President, and protect judicial activism. Let the games begin.
NOTES:
[1] http://news.yahoo.com/s/ap/20051004/ap_on_go_pr_wh/bush_scotus;_ylt=Aj3fneoLXvOJq_rxBCKYv2Ws0NUE;_ylu=X3oDMTA2Z2szazkxBHNlYwN0bQ--
[2] http://72.14.207.104/search?q=cache:Xh8a_kFLAi8J:www.azdailysun.com/non_sec/nav_includes/story.cfm%3FstoryID%3D116730+%22Miers+lack+of+experience%22&hl=en
[3] http://64.233.161.104/search?q=cache:aXSJgk9dE1wJ:www.freerepublic.com/focus/f-news/1488160/posts+%22Ruth+Bader+Ginsburg%22&hl=en
[5] http://64.233.161.104/search?q=cache:M0VVZMwbqT8J:www.washingtontimes.com/national/20050912-095826-2567r.htm+%22ginsburg+standard%22&hl=en
[6] http://72.14.207.104/search?q=cache:TdxAErLb0w4J:www.africanamericans.com/EisenhowerAdministration.htm+%22earl+Warren+and+Ike%22&hl=en
© Mark Malaszczyk
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