Harriet the Justice

by Kieran Healy on October 3, 2005

I know absolutely nothing about Harriet Miers, the new nominee to the Supreme Court, beyond the fact that she’s from Texas and is White House Counsel. But I think those two facts suggest we can be fairly confident in the following: (1) She’ll be a strong Bush loyalist. That follows just from the way this administration works in everything it does. (2) However, the fact that she’s a woman leads me to think that, unlike the likes of Michael Brown, she’s also competent and probably a pretty tough person. It’s hard to get to this point in U.S. politics without having those qualities if you’re a woman. I don’t expect to like many of her legal views, and I’m sure there are better candidates. But I’d be surprised if her confirmation hearings showed her to be clueless or a pushover.

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1

Richard Bellamy 10.03.05 at 9:58 am

The right wing blogs are apoplectic, which certainly strikes me as a good thing.

On the other hand, the enemy of your enemy is not always your friend.

2

Steve LaBonne 10.03.05 at 10:02 am

Interesting that he again passed up the opportunity to nominate a raving “constitution in exile” lunatic. He really seems to have no stomach for big fights right now. That ought to embolden the Democrats on other issues, or rather it would do so in a parallel universe in which they were capable of boldness. Sigh.

3

catfish 10.03.05 at 10:09 am

Steve,

I agree. I have this theory that the Democrats are not an actual political party, but more like the Washington Generals whose purpose was to provide a hapless, token opposition for the Harlem Globetrotters.

4

Brendan 10.03.05 at 10:10 am

Apoplectic strikes me as being a bit strong. They aren’t crazy about her, but, as most them admit, that’s because they don’t really know that much about her. They also suspect she may not be that competent (and they might be right).

As Instapundit puts it:

‘What troubles the social conservatives is the fear that Miers may not be a social conservative.’ (italics added).

The reason that Miers has been put forward is no mystery: ‘In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met.

The reason they Conservatives are disappointed, it seems to me, is becasue they have already lost faith in Bush, and are now looking for the next ‘true believer’ they can push into the White House.

But make no mistake. Anyone who can, apparently with a straight face, describe Bush as ‘the most brilliant man I have ever met’ is unlikely to have many leftwards leanings.

Ms Miers is also a fundamentalist Christian, it should be pointed out.

5

Sebastian Holsclaw 10.03.05 at 10:25 am

“Interesting that he again passed up the opportunity to nominate a raving “constitution in exile” lunatic.”

Who are these lunatics? “Constitution in Exile” isn’t commonly used by the right in the US. Is this a shorthand description for Scalia or something?

“Ms Miers is also a fundamentalist Christian, it should be pointed out.”

I bet that would sound funny to some ears if the religion in question were “Muslim”. Is it all religions that are unfit to be Supreme Court justices or is it just Christians?

6

Jason G. Williscroft 10.03.05 at 10:26 am

Ah, good point!

Miers follows a religion that hasn’t sanctioned a religious genocide in centuries, and actively frowns on sending young men into cafes with bombs strapped to their chests. Let’s persecute her, in the name of Liberalism!

… or were you going someplace else with that?

7

catfish 10.03.05 at 10:37 am

The important qualifier is “fundamentalist,” not “Christian.” Most people who are interested in the separation of church and state and other questions of personal liberty are suspicious of fundamentalists of all religious stripes. Do you really think that liberals would not be disturbed by the prospect of an Islamic fundamentalist on the Supreme Court?

8

Mike 10.03.05 at 10:43 am

Miers follows a religion that hasn’t sanctioned a religious genocide in centuries, and actively frowns on sending young men into cafes with bombs strapped to their chests.

Well, unless they’re cafes adjacent to abortion clinics.

Or in the downtown areas of cities in countries that get in the way of our imperial ambitions, in which case they can simply be obliterated, along with surrounding people by the tens of thousands, from the air or by remote control. Suicide is for murderers who can’t afford half-trillion-dollar “defence” budgets.

9

otto 10.03.05 at 11:02 am

“However, the fact that she’s a woman leads me to think that, unlike the likes of Michael Brown, she’s also competent and probably a pretty tough person. It’s hard to get to this point in U.S. politics without having those qualities if you’re a woman.”

A remarkable statement. Surely lots of women in the Bush administration have got in on family connections, insider deals, early friendships with Bush and the like just like Brown, with little to do with ‘competence’. And the pressure for tokenistic diversity appointments runs counter to, and sometimes completely obscures, the pressure for better performance from those who might face discrimination.

10

Lynn 10.03.05 at 11:04 am

“Is it all religions that are unfit to be Supreme Court justices or is it just Christians?”

Politicians and their operatives who use religion to gain political power should not be appointed to the Supreme Court. They lack the analytical skills to manage ambiguity. Substitute any religion into the statement.

11

Matt Daws 10.03.05 at 11:06 am

Sebastian, I find this whole meme very odd, and rather annoying. I don’t think I know a single liberal who finds extreme forms of Christianity worrying, but has no problem with extreme forms of Islam. I certainly have problems with any extreme form of religion: I’m completely with catfish here. Yet I read on blogs this bizarre idea that, almost literally, we’d love to tear down all the churches and build mosques in their places. To answer Catfish’s question, I’d (of course) be more worried by an Islamic fundamentalist on the Supreme Court than by a Christian fundamentalist: it’d be a close call mind.

12

Amardeep 10.03.05 at 11:07 am

Harriet Miers’ most troubling work experience is her work for the Texas Lottery Commission between 1995 and 2000. Here’s the New York Times:

In 1995, Mr. Bush, then in his first months as governor of Texas, appointed Ms. Miers to a six-year term as chairwoman of the Texas Lottery Commission. Ms. Miers unexpectedly resigned after five years that were marked by controversy and the dismissal of two executive directors of the commission. The first executive director, Nora Linares, was fired in 1997 when it became public that her boyfriend had worked for the company that held the contract to operate the lottery. Ms. Linares’s successor was dismissed after only five months when he began reviewing campaign contributions of state legislators without the commission’s knowledge. Despite the problems, as well as the lottery’s declining sales, The Dallas Morning News praised Ms. Miers when she resigned in 2000 for ”preserving the operations’ integrity.”

I would be curious to know more about why she resigned. Did she screw up?

More generally: Shades of Michael Brown? Miers’ record is a notch less embarrassing (at least she has some nominal experience in working for George Bush politics.

13

Amardeep 10.03.05 at 11:09 am

I didn’t realize the strikout function doesn’t work. That should be “nominal experience in politics.”

14

Artemis 10.03.05 at 11:10 am

So, Mike, I’m unclear here … are you *apologizing* for abortion clinic bombers? By your logic, they’re no worse than suicide bombers, who are no worse than the U.S. military. We have to understand where they’re coming from, right? And the tactics they (abortion clinic bombers) use are a function of their powerlessness, right?

15

Barry 10.03.05 at 11:14 am

“However, the fact that she’s a woman leads me to think that, unlike the likes of Michael Brown, she’s also competent and probably a pretty tough person. It’s hard to get to this point in U.S. politics without having those qualities if you’re a woman. “

Two words – ‘Condoleeza Rice’.

16

Barry 10.03.05 at 11:18 am

If there’s one thing about this administration that should be clear by now, it’s that their two core competancies are seizure of power and corruption. Actually getting anything useful done comes a distant third, on a good day.

Miers and Roberts will probably provide the rotten meat for many, many books on the corruption of early 21st century US politics.

17

Uncle Kvetch 10.03.05 at 11:23 am

Two words – ‘Condoleeza Rice’.

Heh. Indeed.

18

Stan 10.03.05 at 11:24 am

19

Andrew Brown 10.03.05 at 11:28 am

_ Anyone who can, apparently with a straight face, describe Bush as ‘the most brilliant man I have ever met’ is unlikely to have many leftwards leanings._

They are unlikely also to have had much experience of the world. Surely that one opinion alone should disqualify her from any job requiring intellectual acuity?

20

abb1 10.03.05 at 11:35 am

…describe Bush as ‘the most brilliant man I have ever met’

She must have attended this party.

21

jlw 10.03.05 at 11:52 am

Funny that Sebastian doesn’t recognize “Constitution in Exile” as properly formatted conservative source code. According to the wikipedia article http://en.wikipedia.org/wiki/Constitution_in_exile it was a term coined by Douglas Ginsberg, who was nominated by Ronald Reagan for the Supreme Court. (Didn’t serve on account of pot smoking–ah, those were the days.)

So, sure, conservatives can claim the term is some sort of lefty plot or whatever, but we’re just repeating your words back atchya. Oh cruel fate.

22

Richard Cownie 10.03.05 at 12:09 pm

Two words – ‘Condoleeza Rice’.

Also Karen Hughes, Julie Myers. Even for people who
do have some kind of competence, Bush will appoint
them to wildly inappropriate positions where their
previous experience has no relevance. See also
Bolton, Kerik, Chertoff, Rove, Snow etc. Actually
even Powell – appointing a Sec of State who hated
travelling was hardly a smart move.

23

jet 10.03.05 at 12:17 pm

Richard Cownie,
If you think Rove is incompetent, then your concept of competence must not exist in reality. Regardless of your feelings for Rove ethically, there has never been someone better than “the architect” at power brokering.

24

Brendan 10.03.05 at 12:18 pm

Just to clarify things for some of the more excitable commentators it is indeed her fundamentalism, not her Christianity, that is the issue. And yes, a fundamentalist believer in Islam (or a fundamentalist Jew for that matter) would disturb me as much (if not more).

I might add that the poster who seems to allege that Christianity has not been involved in any genocides ‘for centuries’ should take his nose out of the Good Book, and stick it in a history book, where he might actually learn something.

My final comment:

‘Miers has been a member of Valley View Christian Church in Dallas for 25 years, where Hecht has been an elder. He calls it a “conservative evangelical church… in the vernacular, fundamentalist, but the media have used that word to tar us.” He says she was on the missions committee for ten years, taught children in Sunday School, made coffee, brought donuts: “Nothing she’s asked to do in church is beneath her.” On abortion, choosing his words carefully for an on-the-record statement, he says “her personal views are consistent with that of evangelical Christians … You can tell a lot about her from her decade of service in a conservative church.” ‘(italics added)

If this means anything it means that Miers is a fundamentalist, which, I infer, means that like Bush she does not believe in evolution by natural selection, and does not believe in a woman’s right to choose, although of course it does not follow that she will immediately act on these beliefs.

Not at first, anyway.

(The whole series of articles here (http://www.worldmagblog.com/blog/) are worth reading, as is the definition of the word ‘originalism’).

25

abb1 10.03.05 at 12:32 pm

The way I see it, the SC is a safety device – a bunch of members of the elite ready to stop popular actions they consider ruinous.

You don’t have to be a judge, you don’t have to be a lawyer, you don’t even need to know what the constitution says – the clerks will write some bullshit for justification.

What you do need, though, is to be able to figure out what the consequences of various legislative and executive actions might be. Will it cause another great depression? Terrorist attacks? Revolution? You think it might – axe it. To do this job you shouldn’t be too stupid or too ideological.

Does this woman have good common sense? If Mr. Bush is the most brilliant guy she’s ever met, she probably does not. But maybe she was joking?

26

Steve LaBonne 10.03.05 at 12:33 pm

Even conservatives are complaining about her complete lack of qualifications (apart from being a Bush crony, the only quality that matters in this sorry administration) for the job. If the Dems don’t put up a very vigorous fight on this one, I think I just won’t bother voting anymore. What’s the point, if the opposition is afraid to oppose anything.

27

Richard Cownie 10.03.05 at 12:47 pm

“If you think Rove is incompetent, then your concept of competence must not exist in reality.”

Rove’s competence is in political fixing and dirty
tricks. Making him responsible for actual policy
is foolish; and giving him control over the multi-
billion dollar Katrina reconstruction, as is
supposedly the case, is just crazy.

28

barney 10.03.05 at 12:59 pm

Regarding her position on abortion, Lexis-Nexis reveals that Harriet Miers, Texas lawyer, sponsored a resolution in 1993 for the American Bar Association to have a referendum vote to repeal the ABA’s then recently-adopted pro-choice policy.
(Cleveland Plain Dealer, 2/9/93; SF Chronicle, 8/11/93)

The resolution was voted down. I have no idea what has happened since then, though Bush seems to use the word ‘grace’ a lot when describing Miers.

29

C.J.Colucci 10.03.05 at 1:19 pm

I’ve been in the legal world a quarter century and this is by far the weakest Supreme Court candidate I have ever seen even mentioned, let alone nominated, weaker even than the previous record holder, Clarence Thomas. I have as much business sitting on the Supreme Court as she does and I wouldn’t vote for me. A nomination this weak is a sure sign of something, but I’ll be damned if I know what. The Senate should look VERY skeptically at this.

30

Steve LaBonne 10.03.05 at 1:24 pm

If I had any confidence at all in the Senate Dems, I would have said that there is clear potential for a coalition to defeat her that would include conservatives who are both outraged by her lack of qualifications and wary of a “stealth” nominee by a President whom even they no longer trust.

31

P ONeill 10.03.05 at 1:44 pm

Since we can’t put George W. Bush on the psychiatrist’s couch, or at least can’t see the resulting records, we can’t know how his own mediocrity, and his probable awareness thereof (hence the booze) plays out in his choice of people he wants around him. It could be that maintaining a sense of superiority requires having complete dopes, with an additional Mommy complex (Condi the ‘tutor,’ Hughes the ‘nanny’) requiring that some of these people be women.

32

Praedor Atrebates 10.03.05 at 1:46 pm

I bet that would sound funny to some ears if the religion in question were “Muslim”. Is it all religions that are unfit to be Supreme Court justices or is it just Christians?
It applies to FUNDAMENTALISTS of ANY religious stripe who are constitutionally incapable of ruling on matters of secular law (which is the basis of our country, our Constitution, and Bill of Rights) without inserting personal religious belief into it.
If she is a fundie, then she is de facto unqualified to be a judge unless she has de facto proven that her religion doesn’t taint her rulings on all matters secular (right to privacy, birthcontrol, stem cells, science, etc, etc). Sorry, it is not OK under any circumstance for any judge, but particularly on the Supreme Court, to rule that homosexual’s, for instance, do not have the right to live their lives or have their privacy because they are an “abomination before god”.

33

Bro. Bartleby 10.03.05 at 2:11 pm

Will Ruth approve of Harriet’s eye makeup? Will the eccentric bachelor David Souter fall under the spell of witchy-eyed bachelorette Miers? Oh what fun! I smell romance in the air!!!

34

B 10.03.05 at 2:17 pm

It’s truer that you think, bro bartleby:

If we can’t trust Wonkette, who can we trust?

35

Mike 10.03.05 at 2:24 pm

So, Mike, I’m unclear here … are you apologizing for abortion clinic bombers?

I haven’t the faintest idea how anyone could possibly read what I wrote and reach that conclusion.

No doubt such individuals see themselves as otherwise powerless fighters for right, just as those who blow themselves up on civilian buses must. My disgust for these individuals whose religion so clouds their reasoning that they can perform such acts is equalled — perhaps even exceeded — by my disgust for Christian fundies and their fellow travelers who, while being outraged at the idea of a bunch of disaffected Saudis destroying two buildings and killing 2,000 or so people, have no qualms when the US uses the most powerful military machine on the planet to do precisely the same thing on a far larger scale and kills an order of magnitude more innocent civilians in supposed retaliation.

36

lemuel pitkin 10.03.05 at 2:27 pm

Steve,

I’m a little confused by what you want to see happen here. Suppose that Dems did defeat Meirs in coalition with

conservatives who are both outraged by her lack of qualifications and wary of a “stealth” nominee.

Presumably the result would be the next nominee would be one more acceptable to those conservatives.

Meirs looks like she will be a weak Justice who will defer to the political winds. Which seems to me the best possible outcome from this administration.

37

Uncle Kvetch 10.03.05 at 2:41 pm

Meirs looks like she will be a weak Justice who will defer to the political winds. Which seems to me the best possible outcome from this administration.

I’m inclined to agree. If it really boils down to a choice between a bootlicking mediocrity and a brilliant reactionary, it would seem that the former would be preferable, in that an underqualified Justice could do less real “damage” than, say, another Scalia. But not being a SCOTUS buff, I don’t really know if that’s the case. Clarence Thomas was certainly considered patently unqualified by most impartial observers when he was nominated, and he hasn’t done a hell of a lot since then to distinguish himself as one of the sharper knives in the drawer, but that doesn’t mean much when his vote is equal to all the others’, does it?

38

Artemis 10.03.05 at 2:45 pm

Mike,

Here are the two phrases in your last comment that intrigue me: “2000 *or so*” and “precisely the same thing.” Was U.S. action in Afghanistan, in your opinion, “precisely the same thing” as the actions of the 9/11 terrorists? And that “2000 or so” remark is really fascinating … what impulse accounts for your sweeping an extra thousand (or 900 some) people under the “or so” rug?

39

AvengingAngel 10.03.05 at 2:49 pm

The nomination of Harriet Miers as the replacement for Supreme Court Justice Sandra Day O’Connor has united liberals and conservatives in ways few thought possible. Democrats fear she is a stealth arch-conservative. But it is Republicans fellow-travelers like Michelle Malkin, Bill Kristol and David Frum who seem most horrified. They are simply astounded that Bush confirmed Americans’ worst fears that he values cronyism over qualification.

For the details, see:

“Harriet Miers’ Supreme Opportunism.”

40

ben alpers 10.03.05 at 3:23 pm

I smell romance in the air

We can only hope, bro. bartleby, as the alternative might be pubic hairs in the Coke.

41

Jeremy Pierce 10.03.05 at 3:28 pm

Since there’s obviously an overwhelming amount of ignorance about what the word ‘fundamentalist’ has meant historically, I suppose I ought to clear that up. This pastor, quite obviously to anyone who knows this, is speaking about how in the 1980s (not since 9-11) the word has come to mean something very different in the media and the public consciousness from what it meant for most of the 20th century. He accepts it as describing himself, his church, and by extension Harriet Miers, but he accepts it in the classic sense. That classic sense is as follows.

A fundamentalist, historically speaking, is someone who accepts the Bible as the authoritative word of God with no errors in it. It allows room for interpreting the Bible in various ways. It allows room for taking passages to be parables, for instance, and not historical descriptions as events that happened. It allows room for taking commands to be focused during a particular time during which God had been working in a particular way with a particular group of people. Torah commands were meant for Israel as a particular people, for instance, and only the underlying moral principles would apply to Christians.

After the terrorist events of the late 70s and early 80s led to the co-opting of the term ‘fundamentalist’ to apply to Muslim terrorists, the group formerly known as fundamentalist Christians began to apply the term ‘evangelical’ to themselves and began to distance themselves from another group of fundamentalists that they viewed as more extreme in a number of different ways. This pastor, by pointing out that he is a fundamentalist in the classic, non-media-influenced way, is basically claiming that he’s an evangelical.

Now since there’s nothing about being a more extreme fundamentalist that requires wanting to bomb abortion clinics, there’s certainly nothing about being an evangelical that requires such a thing. Evangelicals tend to be pro-life and tend to think of homosexuality as against God’s design for creation. There are many who are 6-day creationists, but there’s much room in evangelicalism for old-earth creationists who deny common descent with animals (which is what the majority of intelligent design folk believe, I would gather) and for outright theistic evolution (which is what a minority of intelligent design supporters hold). There’s much room within evangelicalism for a variety of social and legal views, including ones that fit well within the liberal mainstream in the U.S.

I suspect that Miers is indeed a social conservative of the sort that John Roberts is. I suspect that she’s also a legal conservative of the same sort he is. I don’t think the fact that she’s an evangelical or that the church she belongs to uses the word ‘fundamentalist’ needs to have any bearing on what kind of justice she would be, and anyone who thinks otherwise is pretty much a fundamentalist anti-evangelical. You can be a fundamentalist about anything, and evangelicalism
is something many people are fundamentalists about without knowing much of anything about it.

42

Sebastian Holsclaw 10.03.05 at 3:33 pm

“it was a term coined by Douglas Ginsberg…”

And used by conservatives ever since? Hardly.

It applies to FUNDAMENTALISTS of ANY religious stripe who are constitutionally incapable of ruling on matters of secular law (which is the basis of our country, our Constitution, and Bill of Rights) without inserting personal religious belief into it.
If she is a fundie, then she is de facto unqualified to be a judge unless she has de facto proven that her religion doesn’t taint her rulings on all matters secular (right to privacy, birthcontrol, stem cells, science, etc, etc).

First you have an odd definition of fundamentalist. Second do you have any proof that she is “constitutionally incapable of ruling on matters of secular law” or is that just obvious once you have labelled her a fundamentalist? Why not just call her a Jew and dispense with the need for explanation?

43

Sebastian Holsclaw 10.03.05 at 3:34 pm

After the hardly, I meant for the blockquote to be another subject. Sorry if it caused any confusion.

44

catfish 10.03.05 at 3:40 pm

I don’t know. When your think about the possible conservative justices, it seems like there are three types:

(1.) Those who are broadly majoritarian and afford the legislative branch a good deal of deference (bad for civil rights, but good for federal regulations).

(2.) Those who believe in a strict doctrine of only enumerated powers. (better for civil rights, bad for any hope of environmental or occupational regulation).

(3.) Those who are basically political hacks (bad for civil liberties, potentially bad for economic regulation).

Miers, is most like to fall into the latter category. So, if confirmed, perhaps Roe is safe and a return to Lochner is not on the horizon, but we will likely see her vote to uphold Executive attempts to erode civil liberties via the war on terror (eg., Padilla). In today’s climate, this seems to me to be the most worrying of the three because there is more popular support for torture, imprissonment without civil trial et al than there is for outlawing abortion or scrapping environmental reguations and overtime laws.

45

abb1 10.03.05 at 3:50 pm

What would be an incentive for supreme court judge to be a political hack? I can’t imagine. As soon as she is confirmed she will have absolutely no reason (assuming there’s no blackmail of some kind).

It’s simply a gamble.

46

lemuel pitkin 10.03.05 at 4:06 pm

catfish-

Agree with your analysis, except that for the reasons you find the political hack the most worryig option, I find it the least worrying. Because our concern about a right-wing SC has almost always been that it will impose right-wing policies against the will of the majority, and almost never been that it will fail to impose progressive policies.

The conviction of many liberals that majority rule is an enemy of progress has got to be one of their most self-defeating characteristics — and the competition is stiff.

47

catfish 10.03.05 at 4:16 pm

I meant “hack” in the sense of a team player. Being part of the team may not be simply a cynical attempt at gaining high office or money, it can be an attachment to particular people or groups of people rather than an attachment to principle. For example, I would consider Renquist to belong more in the hack category and Scalia to be more in the enumerated rights and powers only. Most of the time, you’re better off with a Renquist because he’s unlikely to hand down a ruling with immediate catastrophic results, but unpopular minorities are better off with someone with some principles to apeal to.

48

Jim Harrison 10.03.05 at 4:19 pm

We’re learning that when the choice comes down to incompetence vs fanaticism, Bush opts for incompetence.

49

C.J.Colucci 10.03.05 at 5:12 pm

Re: “The Constitution in Exile”
People don’t get to name themselves. (Would anyone name himself “Sebastian”? I blog comment with my initials because I’ve never liked my first name.) Douglas Ginsburg put the name out there and it has been used ever since. That the name is embarassing and its targets don’t like it is neither here nor there.

50

Sebastian Holsclaw 10.03.05 at 5:44 pm

“Douglas Ginsburg put the name out there and it has been used ever since.”

The implication was that it was used by conservatives. If it is mainly in use by liberal critics, I guess they can call it whatever they want.

And my parents called me Sebastian.

51

lemuel pitkin 10.03.05 at 5:45 pm

unpopular minorities are better off with someone with some principles to apeal to.

See, this is what I’m talking about. Why is being an “unpopular minority” so central to liberals’ self-conception?

52

bob mcmanus 10.03.05 at 6:14 pm

“You don’t bring the Constitution back from Exile with your B team; you bring your A team to that fight.” …S Bainbridge,this afternoon

No Conservative Ever says it

53

anon 10.03.05 at 6:24 pm

Is it just me, or would an appropriate caption for the Meier / Bush picture in slate
(http://www.slate.com/id/2127432/) be
“aw, what a cute little puppy. I love it when she licks my … boots”?

54

Sebastian Holsclaw 10.03.05 at 6:28 pm

Have you read Volkh on the Constitution in Exile. Excellent analysis, the term has not been widely adopted by conservatives. There are liberals who say stupid things all the time. I don’t tar you with them unless you hype them.

55

Steve LaBonne 10.03.05 at 6:41 pm

I don’t pretend to have made any sophisticated political analysis of the future possibilities should Miers be rejected, and I’m aware of the dangers that could be posed by a brilliant reactionary. I must confess to simply having a visceral revulsion against the crassness of the nomination to the Court of someone who so transparently has no claim to such an honor apart from being a political hack and Bush crony. It’s a token of the Bushies’ contempt for law and justice. And I would have the same reaction if a Democratic president were to make a similarly godawful nomination.

56

MQ 10.03.05 at 6:54 pm

“There are liberals who say stupid things all the time. I don’t tar you with them unless you hype them.”

Is this the same conservative who further up in this very same thread accused liberals of preferring a fundementalist Muslim to a Christian for the Supreme Court? And then further down (42) apparently accuse us of being anti-semitic to boot? You don’t even wait for obscure radicals to say stupid things, you apparently make up ridiculous stuff out of whole cloth to tar liberals with.

57

Nicholas Weininger 10.03.05 at 7:54 pm

Steve L: would you have been as outraged had you been alive when LBJ nominated Abe Fortas? Or, if you were in fact alive then, were you as outraged?

The nomination of hackish cronies to the SC is by no means a historically uncommon practice. The question is whether Miers will end up like Fortas or like Carswell.

58

James Wimberley 10.04.05 at 5:34 am

Perhaps she’s just Incitata.
(Cross-posted from a thread on TPM Café)

59

Mike 10.04.05 at 6:45 am

Was U.S. action in Afghanistan, in your opinion, “precisely the same thing” as the actions of the 9/11 terrorists?

It was a poorly-conceived, inappropriately excessive use of massive force by a Great Power against an underpopulated, relatively powerless country, which has, as near as I can tell, failed even in its stated aims (so, just where is Osama these days, anyway? and how are those warlords handling that democracy thing?). So, no, it wasn’t the same thing. Though I don’t think that any of the noncombatant men, women, and children who were shredded to ribbons by cluster bombs or other high explosives were really interested in the subtle difference.

And that “2000 or so” remark is really fascinating … what impulse accounts for your sweeping an extra thousand (or 900 some) people under the “or so” rug?

The impulse that comes from understanding that the casualty count may well have been inflated, and has never, to my knowledge, been independently verified. In any event, I’ll give you 3,000. Just how many Iraqis has the US killed in return so far? 10,000 or so? 50,000 or so? How many were slaughtered in violation of the rules of war as they retreated from Kuwait? 100,000 or so? How many Panamanians were butchered going after Noriega because he wouldn’t play our game anymore? 1,000 or so?

If “or so” is good enough for Americans to apply to everyone else, it ought to be good enough for them as well. But, then, perhaps not every man’s death diminishes everyone.

60

jet 10.04.05 at 7:33 am

Uncle Kvetch,

Just curious, but how has Scalia done “damage”?

61

Steve LaBonne 10.04.05 at 7:48 am

nicholas: I was just a little tyke then, but in retrospect, yes, outrage would have been appropriate. Note also that the examples of non-judges who turned out to be distinguished Justices usually were people who had real accomplishments as legal scholars or in political offices a bit higher than Dallas City Council.

62

Brendan 10.04.05 at 8:47 am

One thing that annoys me about all these debates: please no weasel words on either side. 9/11 was not an ‘event’ or a ‘situation’ or a ‘happening’ or even (pace Stockhausen) a ‘work of art’. It was a terrorist atrocity that murdered thousands.

In the same way: there was no ‘action’ in Afghanistan, nor an ‘intervention’ in Iraq. In both cases the US invaded both those countries.

Words matter.

(‘Defenseless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them.’)

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Sebastian Holsclaw 10.04.05 at 9:28 am

If the people you label “fundamentalist” in America were really fundamentalist in the sense you guys use around here, there would be as much or more Christian extremist violence in the US than there is Muslim extremist violence worldwide. That tends to suggest that you aren’t using the term properly.

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Uncle Kvetch 10.04.05 at 10:06 am

Uncle Kvetch,
Just curious, but how has Scalia done “damage”?

Along with Clarence Thomas, he has been the most reliably anti-gay Justice in the past 10 years. Unlike Thomas, he seems incapable of addressing the issue of equality for gay folk without giving freee rein to his very visceral aversion to homosexuality and homosexuals–in other words, without resorting to an impassioned defense of bigotry. From his dissent in Lawrence v. Kansas:

“Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

(Note that of the four scenarios he invokes, in which poor, decent Americans are forced to have perverts infiltrating every aspect of their lives, two involve their children. The good ol’ “homosexuality/pedophilia” conflation–it never goes out of style. Just ask the Vatican.)

Read Scalia’s entire dissent, and it’s hard to avoid the conclusion that in his ideal America, people like myself and my partner would be either nonexistent, imprisoned, or dead.

In the wake of the Lawrence decision, Dahlia Lithwick wrote in Slate, “Why oh why does Justice Scalia care so very much about what happens in the privacy of America’s pants?” Yet she never fails to point out that for all his failings, he remains a “brilliant” man, the intellectual powerhouse of the Rehnquist court.

In other words, because he is almost universally acknowledged as a brilliant jurist and writer, Scalia gives a veneer of intellectual respectability to homophobia. In this sense, a Justice like Scalia has the potential to do far more “damage” to myself and people like me than an intellectually mediocre one.

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jet 10.04.05 at 10:41 am

Uncle Kvetch,
I think it was Lawrence v Texas (not that it matters). And this is also from his dissenting opinion “I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so…..”

At least he is a full time Federalist even when his opinions seem so painfully wrong.

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soubzriquet 10.04.05 at 11:05 am

Sebastian,
I can’t make sense of #63. Care to elaborate? Fundamentalism isn’t inherently characterised by violence, although it is often, I think, characterized by a willingness to consider violent means. The likelihood of resorting to such tactics would seem to be strongly effected by the fundamentalists other options (or moreso their own perception of this).

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Uncle Kvetch 10.04.05 at 11:18 am

I think it was Lawrence v Texas (not that it matters).

You’re correct; my mistake.

At least he is a full time Federalist even when his opinions seem so painfully wrong.

Well, sort of. When it’s about gay issues, it’s States’ Rights all the way. When it’s about a contested presidential election…meh, not so much.

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Uncle Kvetch 10.04.05 at 12:04 pm

By the way, Jet–not nitpicking here, just genuinely curious–when you refer to opinions of Scalia’s that “seem so painfully wrong,” are you saying that they’re not, in your opinion, really wrong?

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Sebastian Holsclaw 10.04.05 at 12:17 pm

Frankly, I don’t think anyone here has established that fundamentalist (as a descriptive term applied to large swaths of the American public) means “constitutionally incapable of ruling on matters of secular law (which is the basis of our country, our Constitution, and Bill of Rights) without inserting personal religious belief into it.” This seems to be a matter of tautology–I am calling these people fundamentalists and part of my definition of fundamentalist includes inability to engage at law therefore the people I label fundamentalists cannot engage at law.

That doesn’t mean they are in fact incapable of engaging secular law. You are changing the definition midstream–after applying the label. (See the discussion about why people used to self-label as fundamentalist Christians).

Tarring the entire evangelical Christian movement as incapable of engaging in reasoned secular law interpretation is ridiculous, but par for the course.

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jet 10.04.05 at 12:40 pm

Uncle Kvetch,
I really don’t know. I’m a strong believer in gay rights and I’m a strong believer in Federalism (separation of power, but more importantly dilution of power, Rousseau?). This is probably a case where the 14th amendment applies automagically and doesn’t interfere with the concept of Federalism (basic rights for all US citizens). But there might be some high and mighty Federalist legal reasoning that Scalia is referring to. So I don’t know, but it sures seems painfully wrong.

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Blitzenn 10.04.05 at 12:59 pm

“(2) However, the fact that she’s a woman leads me to think that, unlike the likes of Michael Brown, she’s also competent and probably a pretty tough person”I hate to get thrown in the troll category on my first post, but this comment is sexist and really disgusting to me. If I were to turn that around, and replace the word woman with man, all sorts of flags would go up. Yet when you state that she will surely be competent and tough, simply because she is a woman, nothing is said. That is really really sad. It is quite telling of the mindset of the comments author, and our society as a whole. Discrimination is only unfair in one direction.

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Uncle Kvetch 10.04.05 at 1:00 pm

But there might be some high and mighty Federalist legal reasoning that Scalia is referring to.

I agree that there may be. I just think it’s less than likely, given what I pointed to above: Scalia’s writings on the subject show precious little evidence of intellectual rigor. Instead, they’re impassioned, they’re visceral, they’re personal.

I simply can’t see any way that the quote I cited above could be considered “legal reasoning” at all. One could just as easily write–without being wrong on the facts, mind you–that “Many Americans don’t want Jewish people living next door to them,” “Many Americans don’t want black people using the same water fountains they do,” and for that matter, “Many Americans don’t want fundamentalist Christians teaching their children.” What legal reasoning could possibly be advanced in this way? Those aren’t appeals to Federalism; they’re appeals to bigotry.

It’s also striking to me that Scalia consistently buys into the far-right conception of equality for gay people as an imposition on non-gay people–the old “ramming it down our throats” argument. It’s one thing when an intellectual midget like Santorum says that allowing gays to marry will have a direct and negative impact on his own marriage (he’s never explained why–to my knowledge, he’s never been asked to). It’s quite another when an ostensible legal genius like Scalia buys into the notion that making gay people equal under the law constitues an “imposition” (and he has used that very word) on everyone else.

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jet 10.04.05 at 1:18 pm

Uncle Kvetch,
I guess I need to reflect on this, because I used to think Scalia was the bulletproof monk of the SC and could say nothing wrong. But you’re right, the reason his dissent doesn’t make sense is that it wasn’t really a legal dissent. It sounds a lot like the prejudiced arguments against equal rights for African Americans. After reading Scalia’s dissent I feel so let down. What a loser.

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anon 10.04.05 at 1:24 pm

Jet — Thank you for your intellectual honesty.

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jet 10.04.05 at 2:13 pm

Anon,
My wife warned me that if I kept reading this site I’d join the Dark Side (liberalism). She’ll be happy to learn I called Scalia a loser today.

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Tim 10.04.05 at 2:25 pm

Geoffrey Stone, in case anyone cares, thinks Miers is supremely unqualified.

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lemuel pitkin 10.04.05 at 2:58 pm

If I were to turn that around, and replace the word woman with man, all sorts of flags would go up.

Right, because you would have reversed the meaning. Funny how that works.

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rachel 10.04.05 at 3:53 pm

The point of the post was not that women are inherently smarter, tougher, or more competent than men (which, yes, would be just as sexist as the reverse); it was that (for pretty obvious sociological reasons) there is reason to bet that a woman of her generation high up in the world of right-wing politics would be those things. That isn’t at all a sexist thing to say; the only thing wrong with it is that it’s completely false, because Bush places no value on competence, toughness or any other personal qualities other than grovelling loyalty to him personally. I suppose you could argue that in *any* political subculture the toughest and most competent tend to rise to the top, just as a result of internal competitive pressures, but the Bushies sure look like a counterexample to that one too. I don’t know what’s more disgusting, the cronyism of the appointment or the willingness of the Democrats to let it pass because, hey, at least she’s not demonstrably a fascist or fanatic.

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z 10.05.05 at 9:46 am

An evangelical Christian follows the fundamental instructions of Jesus to “Love your enemy” and “turn the other cheek.” Please don’t confuse true evangelicals with people who apply this label to themselves while going to war against Iraq or ANY other country. Also, since we’re talking about the Supreme Court, an evangelical Christian would also take Christ’s teaching literally that state: “Judge not that ye be not judged.” A “fundamentalist” or “evangelical” Christian, upholding literally every teaching of the New Testament, would not agree to participate in ANY war, appear as a judge on ANY court, or even pledge allegiance to ANY earthly flag. After all, Jesus said, “My kingdom is not of this world.”

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Jeremy Pierce 10.06.05 at 3:18 pm

Jesus also said that not one word of the Torah would pass away, so he obviously had no problem with the divine commands in the Torah to engage in capital punishment, holy war, and other things that on the face of it don’t sound like turning the other cheek. That suggests that turning the other cheek must be within a restricted context. As it turns out, the context is commands to his disciples in how they relate to each other and how they as individuals relate to nonbelievers. It’s not of such wide scope as to require anything like an anti-war, anti-violence message.

Christians also recognize Pauline writings as authoritative, and he makes it quite clear that the power of the sword in the pursuit of justice is divinely mandated, even if it’s not always used wisely or correctly.

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