The Argument Not Answered

Robert Bork gets it. He is one of the few, apparently, who do.

Bork was on Hannity's radio program this afternoon, and when Hannity asked him why he opposed the nomination of Harriet Miers, Bork immediately hit on the reason that I have been advocating since day one - and which I have yet to hear any pro-nomination folks answer.

Much of the discussion thus far has centered around Harriet Miers as a person: whether she is qualified, whether she is an originalist, whether she will vote to overturn Roe, whether she is pro-affirmative action, and (for some bizarre reason) whether she is a dedicated Christian. Alternately, the debate has centered for some around George W. Bush, since his endorsement has been the most substantive defense of her nomination: whether Bush a true conservative, whether his record of nominating conservative judges is enough, whether Bush is personally motivated by social conservative causes. In the third place, the argument has centered around the political wisdom of the nomination: whether this was the right move for the Republican party, whether any other judge could have been confirmed, whether opposition to Miers is harmful to the Republican party's electoral chances, whether a "fight" in the Senate over judicial philosophy would have been appropriate, and whether the resultant push for Miers has been effective.

To some extent, all of these are legitimate areas of concern and fertile ground for argument in this nomination battle. However, they also ignore the larger fact that this nomination is about more than Harriet Miers, or George W. Bush, or even short-term electoral jockeying. What is at stake here is the future shape of the federal judiciary, perhaps for an entire generation.

This nomination has done much to harm the shape of that future, and so must be rejected.

 

As many of you know, I am a law student. I have been fortunate enough to be able to attend one of the top 20 schools in the country. I am actually the second person in my family to go through law school - my older sister graduated around nine years ago from a smaller school in a much more conservative area of the country and used to regale me with stories about her moonbat professors and their flagrant disregard for all things not embodied in common law. Thus I was fully prepared for a three year immersion in liberal orthodoxy, surrounded by ideological hostility from students and teachers alike. What I have found is that in a few short years, even the culture in which young lawyers are trained has changed tremendously.

One of the things that I'm sure all former law students remember with fondness are student activity luncheons. These are great for a starving law student because for the first six or seven weeks of the year, you never have to buy lunch - some organization or the other will provide it for you if you will come and listen to their sales pitch during lunch. I've been to probably 15 or so of these luncheons, and was delighted to discover that the Federalist Society meetings have by far been the most well-attended of all. One of my professors testified on behalf of John Roberts recently. I feel that if I am in an ideological minority at all, it is only a minority by a very small margin.

I would imagine that if you took a trip to most any law school in the country, you would see conversions like this taking place. Young conservatives, motivated by the desire to change what we perceive as an out-of-control judiciary, have decided to enter the system and see what we can make of it ourselves. Many of us were inspired by the writings of people like Antonin Scalia, whose brilliance and vision of textualism and judicial restraint struck resonant chords with us about how the judiciary ought to work.

Scalia and Rehnquist were also important to those of us who paid attention to politics in the 80s. They showed us that judges who had a bold vision of judicial restraint, and were vocal about that vision, could someday aspire to the highest court in the land, where real change might be possible. It gave us hope that if we wanted to enter the system, one day we might become a significant part of fixing it.

Since the confirmation of Scalia and the elevation of Rehnquist, that hope has been gradually fading. With the nomination of Harriet Miers, following closely on the heels of John Roberts, the final nail has been pounded into the coffin of that hope.

Of far more important consequence than the dashing of the hopes of various law school students, this nomination has done significant harm to conservatism in the federal judiciary, by sending a chilling message to federal judges who are currently sitting on the bench. That clear message is, "Keep your head down. Don't do anything controversial. If you have a controversial opinion, keep it to yourself, and for Heaven's sake, don't vote conservative on a controversial case." Such a standard does not apply to liberals - only to conservatives. Liberals are free to be as vocally liberal from the bench (and anywhere else) as they might desire. Favor the legalization of prostitution? No problem. Favor the abolition of Mother's Day and Father's Day in favor of Unisex Parent's Day? No problem. On the record numerous times in favor of upholding Roe v. Wade? Step right up, your SCOTUS seats await.

But if you're a conservative in the judiciary, you'd better do everything within your power to hide it; because if you don't, someday a Republican President will inevitably disqualify you from consideration, even if his party is in the majority in the Senate. This is an unacceptable policy amounting to discrimination on ideological grounds, and it must end. The repercussions of allowing this policy whereby those with strong conservative positions are consistently passed over for promotions in favor of blank slates and liberals will have a devastating effect on the lower federal judiciary if it is left unchecked.

The Supreme Court grants cert. to around 100 cases a year. It denies cert. to around 7,000 or 8,000 cases a year, which means that the overwhelming number of cases are decided by the lower judiciary, state or federal. This does not even count the cases for which a writ of certiorari is never even petitioned.

Is it worth the potential effect this nomination might have on all those thousands of cases in order to place one vote on the court which might potentially turn out to be a reliable conservative vote? More to the point, is it worth that potential effect to put Harriet Miers on the Supreme Court?

I maintain that it is not. I have not yet seen any Miers defender maintain that it is, either. I believe that this is because not many folks are able to embrace the level of myopia such a position would require.

Comments

[DL]

You plot the debate and conclude correctly that this is much bigger than either Miers or Bush. Hopefully the resistance will result in her withdrawal and a solid nominee such as Janice Rogers Brown be named and supported with the full force of all Republicans, and with much for thirst for blood in the coming fight by George Bush.

History is a series of moments taken, not avoided like the tepid candidate Miers. Lets get on with the real battle. Stopping the liberal control over the courts to acheive what they can't in the election process!