A Justice Should Know That This Is a Free Country

Ah. Very bad news about Harriet Miers:

Think Progress: Sen. Chuck Schumer said yesterday that Harriet Miers told him she was "not ready to give an answer" on whether the 1965 Griswold v Connecticut case was "settled law."... Griswold struck down a law that criminalized the use of contraceptives by married couples. Coupled with her previous support for a constitutional ban on abortion, Miers's silence on the matter is notable.... John Roberts, who refused to discuss his position on virtually any past cases during his hearings, did state his support for Griswold...

The most important thing a Supreme Court Justice needs to know is that the United States is a free country. This doesn't seem to be something that Harriet Miers knows.

Comments

[Saheli]

Oh. My. God.

Griswold? She won't freakin' say something about Griswold???

Damn.

[Barkley Rosser]

Increasingly Miers looks like very bad news. Time for once to side up with those principled conservatives who are upset about her credentials, although the slimier of them will op out when they figure out that she really is one of them, if a somewhat moronic one of them (but hey, look her appointed her!).

[lise]

There is no reason at all to believe Harriet Miers is moronic. I consider this a sexist slur, for there is no intellectual basis in making the comment. Oppose the appointment, but on the same grounds you would have opposed Judge Roberts.

[howard]

actually, harriet miers appears to know one thing well: that george bush is second only to god in importance to american life.

[scribo]

Well, I'm very smart, but that doesn't make me competent to sit on the Supreme Court, and if some crony of mine should actually ever nominate me, I'd be MORONIC not to step down immediately, my enormous brain notwithstanding. Moreover, it would be pretty hard to object to Miers on the same grounds as Roberts; the Roberts nomination was disappointing, but not because he is incompetent or because he had no relevant experience.

Actually, I think it is somewhat sexist to bring up sexism in this case. Miers is simply not competent. Her intelligence--whatever it may be--is irrelevant. Her sex is likewise irrelevant. My personal opinion of the intelligence of anyone who thinks George Bush is the smartest man she's ever known? I'll keep that to myself.

['As you know' Bob]

Scribo touches on a point that's somewhat peripheral to her nomination, but horrible to contemplate: Harriet Miers has said that "GWB is the smartest man she has ever met."

Miers has spent her entire life in Texas legal/corporate/political circles, and the last few years in the Bush White House.

What if her claim is literally true?

[eyelessgame]

Should surprise no one.

I've said it before and I'll say it again.

If something happens to Justice Stevens before 2009, the swing vote -- i.e. the fifth most conservative justice on the Court -- will be Clarence Thomas.

Think about that for a while.

[Ari]

Brad DeLong criticized Harriet Miers in this post on a substantive issue, and that is as it should be. Criticism on personal elitist and, yes, sexist grounds will be self-defeating. George Bush has made a political career of "playing" down-to-earth rather than elitist, and the play has worked and worked.

[Pithlord]

I will never understand Americans. There's something wrong with being "elitist" about appointments to the SUPREME COURT?

[lise]

Just how many women have there been on the Supreme Court these 200 years? Just how many African Americans or Asian Americans or Latinos?

Americans as a whole fortunately believe that only coming from such schools as Harvard or Stanford, that only coming from a wealthy white family, that only being male, are elitist and needless requirements for any court appointee.

[lise]

Just as I did not find Judge Roberts forthcoming enough on judicial philosophy to have voted to confirm the appointment, I doubt I could support Harriet Miers. I certainly agree with Brad DeLong's substantive doubt, but I think it is self-defeating not to criticize the appointment on other than substantive grounds. That Harriet Miers has a style a male attorney might not have is irrelevant.

[A. Zarkov]

As a practical matter Griswold is settled law. It was a non-issue even before the Supreme Court decided the case as Connecticut did not enforce this archaic and ridiculous statute, and no one took it seriously except the people who were literally trying to make a federal case out of it. If we believe Schumer, than Miers is simply being overly timid or perhaps too modest. As Churchill said about Atlee, “A modest man who has much to be modest about.” The real issue is not whether Griswold is settled, but what kind of constitutional reasoning is appropriate to decide cases. If one is willing to enter a reality warp and believe in the concept of a “living constitution,” then yes Griswold and certain other landmark cases were properly decided. But there are consequences to accepting this mode of thinking. It means you are abandoning the idea of a written constitution and the idea of judicial review. If you don’t believe this then go and carefully read Marbury v. Madison. Ask yourself do you want a SC that functions as a kind of plenary body? Originalism (in the sense of original meaning, see Randy Barrett http://en.wikipedia.org/wiki/Restoring_the_Lost_Constitution) does have problems, but the alternatives are worse. It’s the worst form of constitutional reasoning, except for all those others that have been tried from time to time.

[Pithlord]

lise:

I am a practicing lawyer, and most of the lawyers I work with have two X chromosomes. One of them is a brilliant writer. None of them write as badly as Miers.

If that be elitism, make the most of it.

A. Zarkov:

Barnett thinks Griswold was rightly decided too. It is hardly unreasonable to think that "liberty" in the Fourteenth Amendment includes the right of married couples to use contraceptives, and "due process" does not include sectarian legislation. Any plausible originalism is going to have to make room for penumbras and emanations, seeing how the common law at the time of both the Founding and Reconstruction certainly did.

[A. Zarkov]

I don’t think Barrett see penumbras and emanations.

[Pithlord]

Ask him.

[piotr]

Strict constructionism is a mother of all red herrings.

After conservatives failed to demand the resignation of judges who committed a travesty in Bush versus Gore, "strict constructionism" was revealed "interpretation strictly to my liking".

In a debate with Kerry, Bush illustrated the concept of strict constructionism very nicely, his illustration was that Congress instructed the school children to repeat words "under God" and a judge saw that as a violation of "shall make no law establishing religion", and that was "not a strict construction of the Constitution".

"Strict constructionists" lavirate from absurdly narrow to absurdly wide interpretations. They are strictly hypocritical. They could equally well (i.e. equally brazenly) formulate "principle of exellance", namely that all interpretations of the Constitution should be exellant, and Roe versus Wade was short of exellance. Or "principle of beauty", so Griswold versus Connecticut was not beautiful.

[liberal]

A. Zarkov wrote, "If one is willing to enter a reality warp and believe in the concept of a 'living constitution,' then yes Griswold and certain other landmark cases were properly decided."

Wrong. And the label "living constitution" is a misnomer.

Simply put, the constitution is not statute---it concerns more abstract issues of jurisprudence like "equal protection" and "due process".

"Originalism (in the sense of original meaning, see Randy Barrett http://en.wikipedia.org/wiki/Restoring_the_Lost_Constitution) does have problems, but the alternatives are worse."

Wrong again. Originalism is a grotesquely flawed theory of constitutional jurisprudence. _Brown v. Board_ is incorrectly decided under a theory of origialism, because neither the Founders nor even the majority supporting the Reconstruction era amendments countenanced "separate is inherently unequal".

In fact, originalism is self-contradictory at a particular level of abstraction: the Founders themselves were not originalists. There's nothing in the Reconstruction era amendments which says "a right to due process, _as we conceive it_".