Law: October 2005 Archives

James Dobson has announced the details of his conversation with Karl Rove about the Harriet Miers nomination. Most of those details are things that have since been publicly revealed, and Dobson wasn't willing to share them the details of a private conversation without permission. We now know about her evangelical faith, her extremely conservative and pro-life church, her past pro-life donations and organizational aid, and her attempt to get the American Bar Association to abandon its pro-choice stance. There was nothing about how she would vote on particular cases and nothing about her attitude toward Roe v. Wade itself. He doesn't think Rove has even talked to her about that.

What was most interesting to me is the piece of information that hadn't been made public that Rove has now given him permission to reveal. He says there was a short list of potential nominees, and Miers was on it. She wasn't on some lower tier list. But the short list got narrowed down in two ways. One was that Bush really did want a conservative woman on the court, something I would defend from those who think her sex is irrelevant. It's surely irrelevant for most issues coming before the court, merely procedural issues or those flowing directly from a judicial philosophy arrived at in ways not tied much to gender. But there are ways women's voices have been not as prominent that having more women on the Supreme Court can help remedy, and there is some moral motivation to want to increase women's representation in spheres where they are underrepresented, including on the Supreme Court. So I see no reason why Bush shouldn't consider women more strongly. There should be no guarantee of specific seats on the Supreme Court for women, but we know Bush isn't thinking that way. He initially nominated Roberts for O'Connor's spot. If he's only going to get two appointments to the Supreme Court, however, he apparently feels pretty strongly about trying to get one of them to be a woman. I see no problem with that at all.

The other way the list got shortened is from people telling Bush they weren't interested. We knew already that Edith Clement took herself out of the running. It's even possible that Bush asked her before asking Roberts, and she turned him down. After Chief Justice Rehnquist died, she made it public that she wasn't interested in being nominated for the Supreme Court. According to Rove, not a few other top candidates did the same thing, citing the political environment, not wanting to put themselves and their families through the spectacle that would almost certainly arise. If the short list was narrowed down to just women, and most of them took themselves off, with Miers remaining, it explains a good deal more about why Miers was the pick, even if Bush had really wanted people like Priscilla Owen, Edith Jones, or Janice Rogers Brown. This revelation doesn't answer all the questions or respond to all criticisms raised against Bush for nominating Miers, but I think, if you put it together with some of the other arguments I've been making, you end up with very little to say in criticism of Bush, particularly if you keep in mind that there most likely wouldn't have been 50 votes in the Senate to remove the filibuster permanently for judicial nominees and almost certainly wouldn't have been 50 votes in the Senate to confirm someone who has explicitly indicated a desire to overturn Roe v. Wade, which most of the people conservatives have wanted for this appointment have done.

A Chilling Thought

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I just had an eerie realization about one possible direction the Miers nomination might go in. James Dobson has received private information that he says he probably shouldn't know. Senators Arlen Specter and Patrick Leahy have indicated that they would be willing to call him as a witness at the hearings to get that information out of him. I wonder if that's a good idea. It's clear that this piece of information is reassuring to Dobson that she'll vote the way he wants. It's not at all clear that it's what Specter and Leahy suspect it is. They seem to be thinking of it as some simple statement that she's made in the presence of Rove or someone he knows about how she would vote in particular cases. What's more likely is that it's a general perspective sort of thing that doesn't indicate how she would vote in particular cases but gives a strong inkling that it would be in a very conservative direction. Given what I'm about to say, I really hope it's just that.

What's just possible is that it's some very private piece of information that Senator Specter and Senator Leahy might not want to force out into the open if they knew what it was. It might well be about some past experience she had with abortion, maybe even way back in her youth before her evangelical and political conversions, and her current attitude about it is that she wishes abortion had never been legal for it to have been an option. Or maybe it's about someone very close to her in a way that affected her deeply, but the information doesn't make sense as an explanation for why it might somewhat reassure Dobson unless he had to explain some very personal details. Maybe Rove wasn't supposed to know this piece of information himself but passed it along in the interest of getting some key conservative leaders behind the nomination. I don't even want to think about any such possibilities, but I got chills when I realized that the way Dobson described it could just as easily mean something like this as it could something like what Leahy and Specter have in mind.

If they're wrong, and my fear is correct, then these senators might be about to do something that would undermine the very right to privacy that they so loudly base their view of the legal right to abortion on to begin with. This could be a dangerous direction to push, particularly from pro-choice senators. I hope it's just some general perspective thing that doesn't guarantee a particular vote on any case but makes a certain tendency likely. If it's not, and something very personal like this, then whoever ends up calling Dobson to the stand is really going to regret it.

People often uncarefully refer to the originalist view of constitutional interpretation (endorsed most clearly by Justices Scalia and Thomas on the Supreme Court) as strict constructionism. Most careful proponents of this view detest this term, because what it seems to convey is exactly what they don't hold. They don't think that every phrase should e taken in some hyper-literal way. This issue is pretty much parallel to those who claim to take the Bible literally in everything it says but then they don't take Jesus to be a literal door, Jesus' parables to be stories of historical events, and God really to have physical nostrils that flare up when he's angry. Being an inerrantist simply does not mean taking the Bible literally in all it says, and being an originalist about the Constitution does not mean taking every construction in as strict a way as possible. Originalism takes each construction to mean what it would have been understood to mean by an intelligent but ordinary person of the time familiar with legal issues and the background of British law. That doesn't mean taking everything hyper-literally, because such strict constructions will not turn out to match how the ordinary person would have heard it. As I've been thinking about the "advice and consent" clause, this has become quite clear. When you take that clause in a strict constructionist manner, it doesn't mean at all what the original understanding of it would have been.

Elitism and Cronyism

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One element I didn't really get into in my criticism of attacks on the Harriet Miers nomination was the cronyism charge. It seemed rather elitist to me to suggest that she was unqualified simply because she didn't have academic or judicial experience, but I didn't have any carefully formulated thoughts. Beldar has more explicitly connected elitism and the cronyism charge. I pretty much agree with everything he says, except maybe the part about metaphysics being bad. I can't very well say something like that about my own line of work. I was going to write up a long post saying some of the things Beldar says, but Beldar says it better. I'm becoming more and more convinced that anyone criticizing this nomination on the grounds of cronyism has no argument or is simply making some sort of error either in what constitues cronyism or in the facts about Miers.

I suggest Eugene Volokh's much healthier (I mean healthier than the elitist ones Beldar criticizes) list of qualifications for a Supreme Court Justice, and I think President Bush is in a better position to judge whether Harriet Myers has many of those qualities than anyone else.

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