Wes Vernon
October 9, 2005
The Miers pick: The next move for conservatives
By Wes Vernon

Columnists Charles Krauthammer and William Kristol have urged President Bush to withdraw the nomination of his counsel Harriet Miers for the Supreme Court and suggested Miers herself should offer to step aside.

Their frustration is understandable. But their recommendation is at best premature. I take a back seat to no one in the initial reaction (See my column, October 3-posted hours after the announcement) that the Miers nomination was, if not a betrayal, at least a sign of second-term weakness on the part of a president who had lost his nerve for a fight.

Either of the above scenarios would be out of character for President Bush. Moreover, there is absolutely no chance he will withdraw the nomination without a fight, nor will Miers humiliate him by asking him to withdraw it after he's expressed so much confidence in her. The history of the Bush presidency has been one of a focused laser-beam pursuit of his goals. Sometimes that recalcitrance has paid off for good (sticking by his filibustered lower court nominees for years) and sometimes for the worse (his immensely expensive and unnecessary prescription drug program). Even at this late date, it is not wise to bet he won't ultimately get some version (likely a compromise) of his Social Security reforms.

Conservatives are past the initial expressions of shock and dismay. The nomination is a done deal. Confirmation (with conservative support) is not. Time to look ahead.

The hearings of course, will tell the story. Conservatives on the Senate Judiciary Committee should ask Harriet Miers some pointed questions eliciting responses giving us a reasonable road map as to whether she is — as President Bush has said — one who will not legislate from the bench and who will by guided by the text of the Constitution and the law. Those questions can be submitted without resorting to the ham-handed Q&A; that seeks to get Miss Miers to state in advance how she would rule in a given case. What we're talking about here is trying to determine where her head is in the way she sees the world. That is what we should expect.

In general attitude, is she a Scalia? A Thomas? A Rehnquist? Or, is she a Souter in originalist clothing? That is what we need to know by the time the hearings have concluded. And this is not to imply that she should be a clone of any of the above conservative three, who frequently have arrived at conclusions through different rationales and who have not always agreed with each other.

In U.S. v. Eichman-the flag burning case, for example, Justices Scalia and Rehnquist parted company. Scalia joined in the majority. (Clarence Thomas was not yet on the Court.) Scalia believed flag-burning, although repugnant, was a form of protected speech. Chief Justice William Rehnquist dissented in that. So too did Justice Sandra Day O'Connor, whom Miers would replace on the court. O'Connor is often cited by conservatives as a "swing vote" example of what we do not want on the bench. So lockstep on every single case is not the issue. Overall world outlook is.

Almost any combination of the Rehnquist-Scalia-Thomas trio would be a good model for a Justice Miers. We explore the Scalia model here simply because his writings are most readily accessible in Kevin Ring's 2004 volume, "Scalia Dissents." Actually as Ring acknowledges, the title can be a bit misleading since some of Justice Scalia's writings are in majority opinions.

Scalia's America? Ring cites several scenarios:

Americans would be free to criticize their politicians and government, including the right to join "with fellow citizens to discuss the record of a candidate for political office." Outrageously, current law — upheld by a majority of the justices — prohibits independent groups from publicly criticizing a candidate 60 days before a general election.

Here, Justice Scalia, in his dissent, makes mincemeat of the anti-free speech McCain-Feingold so-called Campaign Finance "Reform" law. Reminding his colleagues that the new law was not faithful to the text and spirit of the First Amendment, the justice expressed confusion that the Court which in recent years had wrapped a constitutional blanket around "virtual child pornography" and "other forms of expression" did not see fit in this case to protect the First Amendment's intent "to protect the right to criticize the government."

The justice believed that by upholding McCain-Feingold, the majority was setting a legal precedent that would make it difficult if not impossible for the court to strike down further legislated curbs on free political speech in the future.

This comment by Scalia is pivotal: "The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much free speech."

A layman's language, here is the justice's reasoning: The First Amendment says Congress "shall make no law....abridging the freedom of speech" Nowhere does it say Congress shall make no law abridging the freedom of speech except the speech of conservative or corporate groups or labor unions for that matter, all of which are required to remain silent in the marketplace of ideas as the election approaches. My copy of the Constitution does not say that.

"Drowning" in campaign spending money (as critics suggest)? Scalia notes that Americans spend half as much electing public officials as they spend on movie tickets, about a fifth as much as they spend on cosmetics and perfume, and about a sixth as much as they spend on pork ("the non-governmental sort"). If our democracy is drowning from this much spending, it cannot swim."

Scalia's America? When pro-abortion groups were picketing the Supreme Court urging that it not overturn Roe v. Wade, he chastised Justice O'Connor for giving weight to such protests. He reminded her that the Court's job was to interpret the Constitution and not to make policy — again, not to be a super legislature.

This is the crux of the problem with the Court's direction in recent years — that it has co-opted the prerogatives and responsibilities of the elected branches of government. Like the arsonist shocked by the damage of the fire, a liberal congressman recently told me he was appalled at the "character assassination" that has accompanied court nomination debates in recent years. I asked if he would entertain the possibility that the politicization of judicial nominations resulted from the fact that the legislative branch of government had encouraged the judiciary to settle disputes in a way that would never have a prayer of making it through Congress. His "Who, me?" reply was, "Oh, I guess we could entertain the mere possibility of that."

Scalia's America? On the issue of the supposed "right to die," this observation: "The point at which the means necessary to preserve life become 'extraordinary' or 'inappropriate,' are neither set forth in the Constitution nor known to the nine justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory." He noted "clearly the difficult, indeed agonizing questions" surrounding the issue, but added that "the States have begun to grapple with these problems through legislation." As with abortion, this is an issue for the elected branches of government at the state level. Life-tenured judges should butt out.

Scalia's America? In brief, here are other listed items:

The Court would not disrupt popularly enacted laws that were not intentionally drawn to restrict religious practices.

Fundamental freedoms would be guaranteed by a vibrant federal government whose power was divided and balanced among the three branches — legislative, executive, and judicial.

If the Constitution is silent on an issue, that issue will be returned to the people to make democratic choices for themselves and their communities. Majority votes by citizens, rather than by nine Supreme Court justices, should determine most social policies.

Scalia's America would entrust the people to make meaningful decisions for their communities involving important moral issues, economic issues, and neighborhood issues.

In Scalia's America, the diversity of the different regions of the nation would be evident as each enacted laws reflecting its values. Some states, for example, would impose capital punishment against all murderers, others might eliminate the death penalty altogether. The "one-size-fits-all" standard of deciding disputes would be a thing of the past.

In Scalia's America, citizens of every color are treated as individuals. Any law designed to help one race by disadvantaging another would be struck down no matter how well-intentioned.

The conservatives on the Senate Judiciary Committee (most of them skilled lawyers) would know better than this non-lawyer writer how best to frame questions to Harriet Miers that go to the fundamentals of the above issues without in any way violating the integrity of her future role in dealing with specific cases that would come before the Court.

Miers' America? We need to know. If she's everything President Bush says she is, she should pass in flying colors. If she fails the test at the hearings, conservative senators should vote her down. Hopefully they will not need to choose between their president and their consciences. Presidents come and go. You live with your conscience for the rest of your life.

Hopefully, most of the senators will aim for a higher standard than that set out by Arizona's John McCain who told Human Events, "If it turns out she's a Communist, I would consider a 'no' vote Or, perhaps she's an arsonist, or an axe-murderer, but we have to review it. I am favorably disposed toward her and want to see the hearings." Only a senator hoping the Court will not reverse itself on upholding his attempt to muzzle free speech would make such a flip comment. And it's another example of why the Republicans need to elect a super-majority in the Senate to allow enough margin for squishy moderates and media-fawning "mavericks."

Elaine Donnelly of the Center for Military Readiness is concerned about Harriet Miers' role on the question of women in combat. Donnelly has as much credibility as anyone on that issue. Since 2004, the Army has been violating Pentagon regulations on women in land combat. This involves "improper assignments of female soldiers to certain combat support units....that are supposed to be all male." The "most essential legal function" of the president's legal counsel, Donnelly says, is the role of an "early warning system for potential legal trouble spots." Here is a circumvention of the law. What did Miers do or try to do about it? Senators should ask her.

Also we do not need another justice on the court who consults foreign law in making decisions that should be grounded strictly in American law and in the U.S. Constitution. Miers should be asked about that. One member of the Judiciary Committee, Senator Tom Coburn of Oklahoma, has suggested judges who rely on foreign law should be candidates for impeachment.

Above all, we need to know if a Justice Miers would be frustrated with a Court that, in Justice Scalia's words, "seems incapable of admitting that some matters — any matters — are none of its business."

© Wes Vernon

 

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