Anchoring Miers for the Future

&#8220To which judicial philosphy is Harriet Miers anchored so that she will avoid drifiting like Anthony Kennedy?&#8221

The President is to be congratulated by Democrats for one thing. He has certainly divided the party. The problem is that he has divided his own party.

The Hugh Hewitt’s of the world are ready to trust the President and support the nominee. The Ramesh Ponuru’s of the world are unhappy with the nomination. What is truly aggravating for me is the condescension of some (though definitely not all) who support the nomination at those of us who either object to it or are otherwise unhappy with it. The attitude seems to be that since we have been given what we want, we should be happy. But, Miers is only what we want on one vote that we know of (if we trust the President). What about being what we want consistently over time?

Frankly, some of us are not happy trusting the President given his signing of BCRA after saying it was unconstitutional, given his threats to veto spending legislation that never materialized, given his handing over education reform to Teddy Kennedy, given his amnesty immigration proposal, and given his prescription drug bill. I’m always willing to give this President the benefit of the doubt, but this nomination is too important for “trust me, you’ll see.”

Here is one problem I have with Harriet Miers. My guess is that she is personally pro-life, just like so many Democratic senators say they are. But, I also guess that she hangs around with a group of people where the issue of life is not a defining issue and who think that overturning Roe really wouldn’t accomplish anything, so what’s the big deal (I hang out with those sorts of people myself). Afterall, Bush says he is prolife, but he has surrounded himself with many people who don’t care a great deal about the issue and with a number of pro-choice people, including his wife who is good friends with Miers.

When life is the central issue for so many in the Republican party and the President has 55 votes in the Senate (okay, really probably 50 or 51) and he needs his full base behind him, this just doesn’t make a lot of sense.

Another problem I have is that I don’t want a nominee centered around her “voting the right way” and “trusting the nominator.” Okay, she’ll vote right on life — let’s take the President at his word. What about Kelo? How would she have voted there? What about Lawrence? What about Lopez? What about the assisted suicide case? What about . . .? If she had a discernable judicial philosophy, we would have an idea. But we don’t. All we know is that we must trust the President who tells us that on a checklist of issues, Miers will check the right box. What about the issues that aren’t on the checklist? What about the issues that do not exist now, but will in ten years? By what standard are we now to form an opinion by which we can predicate our current support of her? To which judicial philosphy is Harriet Miers anchored so that she will avoid drifiting like Anthony Kennedy? For now, the President seems to tell us we’ll know it when we see it, but trust him.

Miers, like me, has probably never spent a lot of time analyzing, arguing, or even thinking about the flaws with Roe and Doe from a constitution perspective. She may have thought about the outcome and may dislike the outcome, but it was the process by which those opinions were formed that give us the problem. Without a clear understanding of that process and arguments against that process of constitutional thought, she may vote right, but will the outcome of one vote be a present indicator of future results too?

Trust is too weak a standard when so much is at stake. And those on the right who are willing the trust the President should at least be willing to recognize that the rest of us have legitimate concerns about giving a lifetime appointment to Harriet Miers.

Cross posted at RedState.

&#8220By which anchor will Harriet Miers ground herself to a definable judicial philosophy without the growth that people like Anthony Kennedy have experienced?&#8221

The President is to be congratulated by Democrats for one thing. He has certainly divided the party. The problem is that he has divided his own party.

The Hugh Hewitt’s of the world are ready to trust the President and support the nominee. The Ramesh Ponuru’s of the world are unhappy with the nomination. What is truly aggravating for me is the condescension of some (though definitely not all) who support the nomination at those of us who either object to it or are otherwise unhappy with it. The attitude seems to be that since we have been given what we want, we should be happy. But, Miers is only what we want on one vote that we know of (if we trust the President). What about being what we want consistently over time?

Frankly, some of us are not happy trusting the President given his signing of BCRA after saying it was unconstitutional, given his threats to veto spending legislation that never materialized, given his handing over education reform to Teddy Kennedy, given his amnesty immigration proposal, and given his prescription drug bill. I’m always willing to give this President the benefit of the doubt, but this nomination is too important for “trust me, you’ll see.”

Here is one problem I have with Harriet Miers. My guess is that she is personally pro-life, just like so many Democratic senators say they are. But, I also guess that she hangs around with a group of people where the issue of life is not a defining issue and who think that overturning Roe really wouldn’t accomplish anything, so what’s the big deal (I hang out with those sorts of people myself). Afterall, Bush says he is prolife, but he has surrounded himself with many people who don’t care a great deal about the issue and with a number of pro-choice people, including his wife who is good friends with Miers.

When life is the central issue for so many in the Republican party and the President has 55 votes in the Senate (okay, really probably 50 or 51) and he needs his full base behind him, this just doesn’t make a lot of sense.

Another problem I have is that I don’t want a nominee centered around her “voting the right way” and “trusting the nominator.” Okay, she’ll vote right on life — let’s take the President at his word. What about Kelo? How would she have voted there? What about Lawrence? What about Lopez? What about the assisted suicide case? What about . . .? If she had a discernable judicial philosophy, we would have an idea. But we don’t. All we know is that we must trust the President who tells us that on a checklist of issues, Miers will check the right box. What about the issues that aren’t on the checklist? What about the issues that do not exist now, but will in ten years? By what standard are we now to form an opinion by which we can predicate our current support of her? By which anchor will Harriet Miers ground herself to a definable judicial philosophy without the growth that people like Anthony Kennedy have experienced? For now, the President seems to tell us we’ll know it when we see it, but trust him.

Miers, like me, has probably never spent a lot of time analyzing, arguing, or even thinking about the flaws with Roe and Doe from a constitution perspective. She may have thought about the outcome and may dislike the outcome, but it was the process by which those opinions were formed that give us the problem. Without a clear understanding of that process and arguments against that process of constitutional thought, she may vote right, but will the outcome of one vote be a present indicator of future results too?

Trust is too weak a standard when so much is at stake. And those on the right who are willing the trust the President should at least be willing to recognize that the rest of us have legitimate concerns about giving a lifetime appointment to Harriet Miers.

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Erick Erickson

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  • Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was United States Attorney General (1940 – 1941) and an Associate Justice of the United States Supreme Court (1941 – 1954). He was also the chief United States prosecutor at the Nuremberg Trials.

    Born in Spring Creek Township, Warren County, Pennsylvania and raised in Frewsburg, New York, Jackson graduated from Frewsburg High School in 1909 and spent the next year as a post-graduate student attending Jamestown High School in Jamestown, New York. Jackson never attended college. At age 18, he went to work as an apprentice in a Jamestown law office, then attended Albany Law School, in Albany, New York, the oldest independent law school in the nation, completing the second (senior) year of its two-year course study. Jackson then returned to Jamestown to apprentice for his third year. He passed the New York Bar Exam in 1913 and set up practice in Jamestown, New York.

  • Some of President Bush’s remarks when he nominated Ms. Miers:

    “Harriet’s life has been characterized by service to others, and she will bring that same passion for service to the Supreme Court of the United States. I’ve given a lot of thought to the kind of people who should serve on the federal judiciary. I’ve come to agree with the late Chief Justice William Rehnquist, who wrote about the importance of having judges who are drawn from a wide diversity of professional backgrounds. Justice Rehnquist himself came to the Supreme Court without prior experience on the bench, as did more than 35 other men, including Byron White. And I’m proud to nominate an outstanding woman who brings a similar record of achievement in private practice and public service.”

    Note all of the men that have not been a judge prior to sitting on the Supreme Court.