For Harriet Miers

I'm going to come out in favor of the U.S. Senate advising and consenting to the nomination of Harriet Miers to be a Justice of the United States Supreme Court.

She is a hard working, intelligent, savvy lawyer with a strange fixation on George W. Bush. She has had the experience of making her way as a career woman in late-twentieth century America, which cannot help but have given her a considerable education in what's what and where's where. Back her up with good, moderate clerks and she will do fine.

She will be, I think, likely to be vastly better as a judge than the alternative--which is some "originalist" who doesn't get that James Madison wrote:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

because he didn't want any judges, ever, anywhere in the United States to argue: "You don't have that right because you can't show it to me written down in the Constitution."

Comments

[mb]

hey! that's the 9th amendment! or 10th. I forget which.

[anne]

Agreed :) When I read fierce conservative complaints, I feel very very satisfied that we may have a moderate Justice in Harriet Miers.

[rod]

good lord, talk about jumping to conclusions! why not wait for the hearings? why not wait to learn a few more facts? why not be as thoughtful about the evidence as you would if this were an economics problem?

[lise]

Anyone who turns Robert Bork even nastier than usual has my support. There is no reason to believe Harriet Miers will not be a comparable Justice to what I anticipate in Roberts.

[TexasToast]

I agree. I'm just enjoying the circular firing squad.

[lise]

Texas, they really are nutty and on the loose now.

[Pithlord]

I disagree. All we know about her is that (a) she can't write; (b) she is a Bush sycophant; (c) she was for a "Human Life Amendment" and (d) she thinks elected officials do not need to follow the Constitution unless the courts tell them to. We can reasonably suspect that she will have a maximal vision of executive power and will accept pretty much anything clothed in a national security justification.

All in all, bad, and quite possibly worse in many ways than a principled libertarian or conservative.

If she is voted down, it will be because some of the "grown up Republicans" you have always been wishing for have finally had enough.

Democratic Senators (except those like Reid who have already committed themselves) should listen to her carefully, give her an up or down vote, and vote "no." If she goes down, Bush will be weakened and the last thing he is going to do is send up a total wingnut as a replacement.

[mere mortal]

Of course, all in favor.

While we're at it, let's have the next semester of Dr. DeLong's Economic classes taught by one of his middling undergraduate students. Or better yet, by some affable person on the street we saw haggling over the price of a hot dog, he'll bring some useful insight to economic theory to the table.

This nomination to me is just like the rest of the Bush regime. For the most part, a disgusting affront to the idea of meritocracy in government.

She has no experience or training in constitutional law. Why shouldn't that disqualify her for the Supreme Court?

[PTate in MN]

Longtime reader stung into commenting. I am with mere mortal and Pithlord: WTF? Harriet Miers is unqualified to be a justice of the SCOTUS.

It is deeply disturbing that less than two months after Katrina, liberals are arguing that cronyism is okay for a lifetime appointment on the SCOTUS because Miers MIGHT be better than some other Bush nominee.

[sm]

PTate:

Right on. This is thinking based on pure partisanship. Reflexive partisanship, not smart partisanship. The Dems should keep their powder dry until the hearings, then expose this nomination as the classic case of bad governance it is.

[SCOTUS MOTUS]

You're joking right? She wants to amend the constitution to ban abortion - and, you her on the front lines defending our rights?

[sm]

Go to the political cartoons at the Washington Post, look at the Lukovitch cartoon there, and tell me again that this woman can be confirmed.

The ones who tear her apart are the ones who are going to look good, and anyone who supports her is going to look like a sap.

[Dave MB]

It seems to me that the best reason not to confirm
her is that she _has_ to be personally dirty, having
been White House counsel in a criminal White House.

[Alan]

I have no particular opinion with respect to Miers, but, except for the absence of football, her qualifications seem roughly on a par with those of Kennedy appointee Byron White. White was hardly a great justice, but he was competent.

[william]

One of the conservative commentators described this as "a deeply unserious nomination", and they were right. For pity's sake, Brad, don't let them trick you into being as cynical as they are.

[howard]

i'm of mixed emotions on this one, because the choice isn't between harriet miers and a good supreme court justice; the choice is between harriet miers and a downright awful supreme court justice, because they will shove through the most egregious right-winger with the do-over if she doesn't make it.

[Dubblblind]

Brad, you were joking, right? Right??? It's one thing to grit your teeth and say it could have been much, much worse but it's a serious misstep, IMHO, to burst forth with such an endorsement. Sheesh.

[Matt]

Unfortunately, that was the argument that Republicans made to justify voting for the worst president in living memory-- he'd be kept out of trouble by the adults in the White House. Argument didn't work for W, why should it work for Meirs?

[piotr]

I am totally confused. Principled libertarians are raving and foaming about Bushes treatment of individual rights, imperialism, profligacy etc., so there is not much of a chance of one being nominated.

Principled conservatives have their chances if they are from corporatism/fascism school of principles.

Chances that Bush will nominate anyone remotedly tolerable are slim.

That said, we just have no data to say that Miers is acceptable or not acceptable, besides evidence that she is an assiduous sycophant. I just have no experience with this kind of person. Peggy Noonan for SCOTUS? She can write, and she can even properly use such neat grammatical forms like "he will have been doing". Give Peggy a competent clerk or two and she will do splendidly.

If SCOTUS chair will go to Harriet, how about Noonan for chairmanship of the Fed? Give her a competent economist as a clerk...

[Will Martin]

There is a severe information assymetry here. This is a lawyer who talks religion with born-again George W. Bush, but is claiming publicly that she has no stance on Roe v Wade.

Of course she has a stance. Of course George knows it. We can deduce that of course she has convinced George that she will do what George would want her to do, but we do not have a record that makes her position as we can easily deduce it grounds to filibuster.

[anne]

http://www.calvorn.com/gallery/photo.php?photo=5774&u=4|3|...

Magnolia Warbler Taking Flight
New York City--Central Park--Wildflower Meadow.

There are always birds :)

[bakho]

Miers is a Thomas clone, without the videos.

[matt]

Sorry, Bakho, but I'm not ready to give up hope that there aren't some videos somewhere that will surface if the loony fringe is really crazy enough to keep her from being confirmed.

Maybe she even cavorted around in Bohemia Grove with Henry Kissinger playing the Pan flute.

[scribo]

Maybe she even cavorted around in Bohemia Grove with Henry Kissinger playing the Pan flute.

Oh, so you're saying she is actually a man? Well, that would be a killer story.

Really, don't you think that senate democrats can basically sit around and watch Miers go down, then filibuster the crap out of whatever nut bar gets nominated next (assuming the next is a nut bar)? In what way is Bush in any position to push through a tough case (ie, right wing nut bar) after Harriet goes quietly back to her little tufted pet bed in the White House? How much cooperation would he get from Arlen Specter in that case?

[Sebastian Holsclaw]

"She will be, I think, likely to be vastly better as a judge than the alternative--which is some "originalist" who doesn't get that James Madison wrote:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

because he didn't want any judges, ever, anywhere in the United States to argue: "You don't have that right because you can't show it to me written down in the Constitution.""

Do I have the Constitutional Right to grab all of Mr. Delong's money?

Do I have the Constitutional Right to kill an annoyingly whiney child in the grocery store?

Does any American have the Constitutional Right to torture bin Laden if he is captured?

Is there are a right to abortion?

Just because something isn't in the Consitution doesn't mean that it is a right either. And since liberals have almost no articulable scheme for figuring out which things are rights and which things aren't, perhaps trying to bother with the text of the Constitution might actually be worthwhile.

[piotr]

Dear Sebastian,

you claim that "trying to bother with the text" etc. is worthwhile. But in the preceding passage, rather than bothering with the text of the 9th Amendment you seem to be bother by it.

What is the "literal" meaning of "the other rights" that you seem to disparage?

Be mindful of the Cretan paradox. If 9th Amendment cannot be read literally because we have to read the Constitution literally...

[Unstable Isotope]

I hope you're being sarcastic. Just because the crazies don't like her, doesn't mean we should like her. My enemy's enemy is not my friend. I think she's going to be another Clarence Thomas. I think her answers are very troubling re supporting the abortion amendment and not necessarily agreeing with Griswold. I do think it's funny that when asked by Leahy who her favorite justice was she said Warren. Leahy asked did she mean Earl Warren (famous liberal) or Warren Burger? She said Warren Burger.

[Cranky Observer]

> Longtime reader stung into commenting. I am
> with mere mortal and Pithlord: WTF? Harriet
> Miers is unqualified to be a justice of the
> SCOTUS.

Think judo, my friends. Miers is very, very close to being eviscerated from the right. The Dems need to be seen as being very diffidently in favor of her nomination, but not so much as to actually allow the mushy-middle-Republicans to vote for her. Once Miers nomination is terminated from the right, the Dems will be in control for the next two.

Cranky

[liberal]

Sebastian Holsclaw wrote, "And since liberals have almost no articulable scheme for figuring out which things are rights and which things aren't, perhaps trying to bother with the text of the Constitution might actually be worthwhile."

Mirror time, pal.

[sm]

This latest news about dubious land dealings just goes to show how shallow the "let's vote for her because the alternative will be worse" declarations are.

[Buce]

All vanity. She is toast, history, a busted flush.

[PTate in Mn]

Cranky: "The Dems need to be seen as being very diffidently in favor of her nomination, but not so much as to actually allow the mushy-middle-Republicans to vote for her."

It's a very difficult position to achieve. The Dems need to make it clear that they are open to the President's choice, but concerned about her lack of qualifications: The hearings will provide additional information. But Democrats must also make it clear that they do NOT support cronyism and that people in powerful public positions must be competent to do the work. They should not reject or support Miers before the hearings based on her position on abortion, but make it clear that we are concerned about her lack of qualifications.

The RW response has been a hoot.For so long they've been all mealy-mouthy hypocritical: "We just want a strict constitutionlist, like Scalia or Thomas--we don't have a litmus test like the Dems!" And now they are screaming meemies because they can't read their litmus test results.

[Cranky Observer]

> It's a very difficult position to achieve.

Well, I didn't say the Democrats would be able to _do_ it! Much depends on Senator Reid here and I do not have the belief in his strategic skills that some in the blogsphere seem to have.

Cranky

[sm]

Good grief, George Will gets it exactly right!

"Still, Miers must begin with 22 Democratic votes against her. Surely no Democrat can retain a shred of self-respect if, having voted against John Roberts, he or she then declares Miers fit for the court. All Democrats who so declare will forfeit a right and an issue -- their right to criticize the administration's cronyism."

I would add, once they've used the hearings to establish her lack of fitness.

But I don't think there will be hearings.

[SteveMG]

Well, not to be too pedantic but Madison didn't write the Ninth Amendment.

[Ahem: 8 June 1789 Annals 1:439 House of Representatives James Madison: It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment]...]

[Sebastian Holsclaw]

"What is the "literal" meaning of "the other rights" that you seem to disparage?"

Rights held by citizens of the states and those already found in common law. It can't be used to create new rights not found in common law.

[Except for the fact that all the rights we find in common law were at some time created by some common law judge--who, quite literally, "found" them.]

[SteveMG]

Thanks for the link but again Madison didn't write the Ninth Amendment.
As I warned everyone I was being somewhat (somewhat? ok, a big one) pedantic. Again, I believe the actual author of the wording, i.e, the person who wrote it, was George Mason.

Madison clearly suggested the wording for it through the Fourth Resolution, wording that was changed as the resolution worked its way through Congress. Madison's suggestion and what was passed are clearly different.

SMG

[SteveMG]

Will Dr. DeLong or whomever is running this site please not edit posts in a way that renders them unreadable?

If someone uses foul language or engages in posting ugly comments, I can understand removing them. But just because someone posts a disagreement with Dr. Delong doesn't warrant being removed or edited in such a way that the poster's comments are unreadable.

Or does it? I've had this happen here numerous times. It's DeLong's blog, but it's not a very classy way of running things.

SMG

[Pithlord]

Sebastian:

If you follow John Roberts advice, and pose the right at a level of abstraction and generality higher than the issue being adjudicated, it is easy to see common law rights that are engaged by a restriction on abortion.

At common law, it is a battery to impose medical care on someone without their consent. At common law, you have a right to contract for medical care. It would be a tort to interfere with medical care (except by the state using the police power, which, of course, begs the question.)

Moreover, there is no way around the fact that restrictions on abortion have a disparate impact on women compared to men. Surely, this must give rise to some scrutiny of them. Whether or not they survive the scrutiny, it is hardly a judicial invention of a right.

[Henning]

Econ prof offers virtually nothing more than a pontifical wad of spit across the bow of a strawman conception of originalism, yet few call him on his rationale. What is the thinking here: "I'm smart, have blog, Miers in the news, my public awaits."?

[ogmb]

"with a strange fixation on George W. Bush."

That's where I stopped reading.

[Jonathan W. King]

I think Brad DeLong is forgetting what we might call the DeLong rule about the Bush Administration:

# The Bush Administration is worse than you
# think it is, even when you take into
# account that it is worse than you think it
# is.

I see no reason why this should not apply specifically to Bush appointees. But even if you reject that position, why would it make any sense that Bush would suddenly stumble into a competent pick for the Supreme Court who just happened to be in his most inner circle? I mean, what's the chance of *that*?

[Anonymoose]

Yipes - Brad supports HMeirs who:
1. Does not write clearly --> Does she think clearly?
2. Is Late with B-day cards for W, late with annual registration fees causing her suspension from the practice of Law - TWICE - This year in DC and 1989 in Texas
3. has had 10 Liens filed agsinst her in Texas - all now cleared
4. Panel of cronies buys her land for 10x market value. State of Texas pursues a refund. Mediator awards state $26,000 in 2003 and yet HerMajesty H.Meirs has not paid.
5. A Super-Crony of W and some mighty Texans whose SCOTUS vote would be only a phone call away...

all this vs. the RISK the next candidate would be worse.

get some rest