Wednesday, October 19, 2005

The Book of Harriet

Let the record show that Harriet Miers is not without a paper trail. It's just that it doesn't lead anywhere. Kind of the legal/rhetorical equivalent of Representative Don Young's (R-AK) "bridge to nowhere," only with a much more affordable price tag.

David Brooks (the token quasi-conservative whose columns are held hostage by the New York Times' greed) took a look at Miersian prose and, so the American Spectator relayed late last week, was not impressed:

I don't know if by mere quotation I can fully convey the relentless march of vapid abstractions that mark Miers's prose. Nearly every idea is vague and depersonalized. Nearly every debatable point is elided. It's not that Miers didn't attempt to tackle interesting subjects. She wrote about unequal access to the justice system, about the underrepresentation of minorities in the law and about whether pro bono work should be mandatory. But she presents no arguments or ideas, except the repetition of the bromide that bad things can be eliminated if people of good will come together to eliminate bad things.

Here are three examples from her "President's Opinion" column in the Texas Bar Journal,:

Of course, we have to make allowances for the fact that the first job of any association president is to not offend her members. Still, nothing excuses sentences like this:

''More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems.''

Or this: ''We must end collective acceptance of inappropriate conduct and increase education in professionalism.''

Or this: ''When consensus of diverse leadership can be achieved on issues of importance, the greatest impact can be achieved.''

Sounds like Rodney King's plaintive "Can't we all just get along?" It also sounds like a person who is unlikely in the extreme to challenge the dominant left-wing/oligarchist orthodoxy of the federal judiciary alongside Justices Thomas, Scalia, and Roberts.

It sounds like Justice O'Connor, to be perfectly frank.

The lack of intellectual sizzle came across in her Senate questionnaire answer to the "judicial activism" question. John Podhoretz reproduces the answer here if you want to check it out. What I found telling was his one-sentence comment:

I have no problems with any of this, but it is basic conservative boilerplate.

Almost as if it was written for her, or she was told to produce a conservative-sounding answer and this is the best she could come up with. Sure it's "perfectly reasonable," but it is shallow as a child's wading pool, and shows how little, if any, thought she has ever devoted to the topic.

J-Pod also reproduced Chief Justice Roberts' answer to the same question. You read this one and then compare it to Miers' and then try and tell me that she's qualified to sit next to him on that Olympian perch:

It is difficult to comment on either “judicial activism” or “judicial restraint” in the abstract, without reference to the particular facts and applicable law of a specific case. On the one hand, courts should not intrude into areas of policy making reserved by the Constitution to the political branches. As Justice Frankfurter has noted, “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society.” In our democratic system, responsibility for policy making properly rests with those branches that are responsible and responsive to the people. It was precisely because the Framers intended the judiciary to be insulated from popular political pressures that the Constitution accords judges tenure during good behavior and protection against diminution of salary. To the extent the term “judicial activism” is used to describe unjustified intrusions by the judiciary into the realm of policy making, the criticism is well-founded.

At the same time, the Framers insulated the federal judiciary from popular pressure in order that the courts would be able to discharge their responsibility of interpreting the law and enforcing the limits the Constitution places on the political branches. Thoughtful critics of “judicial activism” — such as Justices Holmes, Frankfurter, Jackson, and Harlan — always recognized that judicial vigilance in upholding constitutional rights was in no sense improper “activism.” It is not “judicial activism” when the courts carry out their constitutionally-assigned function and overturn a decision of the Executive or Legislature in the course of adjudicating a case or controversy properly before the courts. Chief Justice Marshall made the point clearly in his opinion for the Court in Cohens v. Virginia, 6 Wheat. 264, 404 (1821):
“We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.… Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is to exercise our best judgment, and conscientiously to perform our duty.”

It is not part of the judicial function to make the law — a responsibility vested in the Legislature — or to execute the law — a responsibility vested in the Executive. As Marshall wrote in his most famous opinion, however, “[it] is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). When doing so results in checking the Legislature or Executive, the judiciary is not engaged in “activism”; it is rather carrying out its duty under the law.

The proper exercise of the judicial role in our constitutional system requires a degree of institutional and personal modesty and humility.

John Roberts knows his stuff, and knows WHY he knows it. From this answer alone you are completely confident that he understands not just that "judicial activism is bad," but why it is and how its effects have distorted jurisprudence over the past half-century and the oligarchist mentality has accordingly become entrenched in the judicial branch of government. From Harriet Miers' answer you get the impression that (1) her colleagues wouldn't take her seriously and (2) to the extent they did and criticized her ostensible "strict constructionism," she wouldn't be able to substantively justify it and would, per her non-confrontational nature, start "growing" just like O'Connor did.

Miers, in other words, is bluffing. She's not grounded in or anchored to originalism. She's an open door that will swing in any direction she's pushed. Right now that is toward the Right because a Republican president (and her hero!) is sponsoring her appointment, but once on the high court, with its prevailing ideological winds, she would be highly likely to swing the other way.

And the President (to give him the benefit of the doubt this morning) can't see it or look at this nomination objectively because she's his friend.

Boy, RINO WH Chief of Staff Andy Card sure knew what he was doing when he pushed this choice on Bush, didn't he?

UPDATE: Here's something else from her Senate questionnaire that clinches, in my mind, Miers' weathervane-ism:

Miers says she was asked, on the day O'Conner announced her retirement, if she wished her name to be put forward, and she said no. After Chief Justice Rehnquist passed away, she discovered that her name was being considered without her knowledge [and, therefore, without her consent]. She then met with her deputy, William Kelley, and with Andy Card and the President. She subsequently had four meetings with the President before her nomination was announced.

Not only does this establish her wishy-washiness, but it also strongly implies that she was almost drafted for this nomination. Her initial demurral was most likely her honest self-assessment, and thereafter she was talked into changing her mind by men who were intent on (let's not mince words here) using her because of her gender and supposed easy confirmability. That assumption proved grievously wrong, and now this "nice lady" is at the eye of a political tempest that is inexorably laying waste to the Republican hegemony and will quite likely take her down with it.

What has the White House gotten Harriet Miers into? With them as "friends," does she even need any enemies? And why doesn't she get herself out of this while she still can?

UPDATE II: More on the questionnaire:

The questionnaire suggests a broader problem and a breakdown in the controls that make the White House an amazing place to work and a typically zero-defect environment. There are at least four issues w/the response. First, it was late. Miers promised it to Specter in three days. They missed the deadline and had to get more time. Then it contains a glaring misstatement of facts that is easily checkable — the incorrect dates for when her bar membership was suspended and the mischaracterization of how promptly the non-payment was remedied (Washington Post story). Next it contains another possible misstatement — the characterization of Miers as a Board member of Girls, Inc., in Dallas when the National Girls, Inc., folks have no recollection of her service (LA Times story). In addition, the questionnaire contains multiple gaps — "dates not available" — for Board service, including Boards where a contact person is identified. Every corporation I know of keeps meticulous records about Board members and meetings. And every vetter asks for this kind of information to facilitate background checks. All of this makes me ask the next question — what else did they miss?

If this were six months from now or six months ago I would be suspecting that Harriet Miers for SCOTUS is the Administration's April Fool's joke. Is there anything about this nomination that isn't a complete and total debacle? Anything at all?

UPDATE III: The Senate is not taking incomplete submissions....