Peace Like A River

It was a wide river, mistakable for a lake or even an ocean unless you'd been wading and knew its current. Somehow I'd crossed it... Now I saw the stream regrouped below, flowing on through what might've been vineyards, pastures, orhards... It flowed between and alongside the rivers of people; from here it was no more than a silver wire winding toward the city. - Leif Enger, Peace Like A River

Sunday, October 09, 2005

What do we critics want?

Hugh Hewitt has a lengthy, and thoughtful, post today in answer to the question he poses: What Do The Critics of the Miers Nomination Want?

In the first part of the post, Hugh argues that opposing Miers on her intellectual skills is not a valid reason.

The idea that Miers cannot go toe to toe with the giant brains on the Supreme Court is a very odd argument, on a number of fronts. It assumes that the business of judging is very difficult and that only scholars and intellectuals are suited to the task, when in fact scholars and intellectuals have brought us to the point where the SCOTUS has become such a political problem. Read these excerpts:
All of these quotes are from Robert Bork's impressive introduction to "A Country I Do Not Recognize: The Legal Assault of American Values," a collection of essays published by Hoover Press months ago, and edited by Bork.

Bork's on target critique of SCOTUS is not that is not powered by enough intellect, but that intellectuals or would-be intellectuals have run it over the cultural cliff. It is odd indeed that some denouncing Miers, including now Judge Bork, seem to anchor their fiercest arguments in the fact that she's not smart enough for the job, when the implication of Judge Bork's argumnent is that the last thing the SCOTUS needs is another would be legal titan.

For me anyway, I am not primarily concerned with Miers' intellectual prowess. I sometimes get the heebie jeebies from the phrase "world class legal mind". It conjures up a person who is exceptionally good at finding emanations in penumbras, and constructing arguments around the idea that it "depends on what the meaning of 'is' is".

No, conservatives are not looking for such a mind. We are looking for a person with a firm judicial philosophy, one so firmly held in their gut they will not be swayed by fancy arguments designed primarily to win encomiums at the next Georgetown wine and brie party.

To Hugh's point about judicial practice, again, it's not primarily a question of experience on the bench, the question is where is the evidence that Miers holds that kind of conviction I mentioned? Is Bush the only one on the planet who knows?

For asking just this very thing, for reassurance that Miers is indeed a person of conviction, conservatives are pilloried by those who don't seem to view the Judiciary as a runaway branch.

One example is this post from Strata-Sphere.

My position on the Miers debacle is clear: the anti-Miers ideologues, driven by their irrational fears and wild fantasy scenarios, have become so fanatical they are killing the conservative movement dead in its tracks.
But because these people are obsessed with making abortion illegal, they do not care about anything else - including the war on terror.
I do not trust fair weather allies who give up everything when they do not get their way. I said before, here, that the fanatical right had to be careful and not go so far out on the fringe or they would lose the normal conservatives. I should have known better. Obsession blocks out everything else - especially logic.

I am not a moderate. I have no use for McCain’s brand of policies. They stink. I am for low taxes and smaller government and I am not ‘moderate’ in these positions. I am pro life and I am not ‘moderate’ in that position. And I am for defending this country and winning in Iraq, and I so not take that stand from a positoin of ‘moderation’.

But I am not so fanatically obsessed that I would throw all this away because Miers is not Janice Rogers Brown. Too many can and have. I have lost all faith in the fanatical right. I cannot support them or trust them anymore.

I already wrote here about the puzzlement conservatives feel over being attacked for standing up for principles we thought we all shared. So, I won't rehash that here.

But I chose this passage because it exemplifies my confusion. I am against abortion, I do want to see this practice ended. At the very least, I'd like to see this issue taken out of a Court that simply makes up its own laws. AJ says he is not a moderate, that he is pro-life and not moderate on that position. So far so good I say. Yet, suddenly, I'm a fanatic. Why? If abortion is the violent ending of a human life, is that not an issue worth fighting about?

So, in answer to Hugh's question, I say this. I want a fight. I want a debate about why activism is dangerous, about what we've given away as a people. I don't want to see these large issues swept under the rug and be told to just hope things work out for the best.

If this isn't worth fighting over, what is? What is?

Michelle Malkin has a good roundup, and voices what I have been feebly trying to express here, that President Bush and his advisors vastly underestimated the effect this nomination would have on supporters like me.


  • At Sun Oct 09, 04:57:00 PM, AJStrata said…


    Good question. How about this: I prove to you the current acceptabel construct of a law banning abortions is incomplete and you agree you may have jumped the gun. I too want abortion ended. I cannot support and outright ban, but a ban that limits abortions to conditions that could harm the health of the mother has been acceptable to me.

    But as I contemplated the desire by many to damage Bush, I also realized this same 'compromise' position on banning abortions was incomplete.

    And it was incomplete because we cons had not consider all options and all situations where an abortion was a legitimate last choice.

    If I prove to you we both were wrong to blindly assume a ban that protected the health of a mother was still insufficient would you agree we are not ready to say we have all the ansers on abortion?

  • At Sun Oct 09, 05:35:00 PM, Mahon said…

    OK, you want a fight. But what about command and control? You can't win a war if every army division decides on its own who the enemy is, how strong they are, and when to attack. There has to be a strategy. Someone has to call the shots - to know when to hold them and know when to fold them. For us, now, this has to be Bush and Rove. Maybe they are wrong this time, and there is nothing wrong with expressing disagreement and unhappiness. But if you pull your division out of line, the only benefit will be to the other army.

  • At Sun Oct 09, 06:22:00 PM, Jeff said…


    I could absolutely live with some provision that provided for the health of the mother, in that I would want a doctor to be free to take a baby if the mother's life were in danger, and not have that considered an abortion. (I would also envision something like a C-section procedure. I don't think pulling limbs apart should be allowed under a life-of-the-mother provision.)

    However these compromises are hashed out though, I'd like to see that done in the legislatures, where we have a say. Not decreed from on high by judges who find rights to abortion in a document written over 200 years ago, and in an amendment written to free and empower post-Civil War slaves.

    Also, I'll agree that anyone saying they know Miers will be a bad justice has jumped the gun. (I haven't claimed that.) That is part of my concern here, that we don't have a good idea one way or the other. I think there are candidates about whom we would have a better idea.

    While I have you on the line, let me say your work on Able Danger has been of blue ribbon quality.

  • At Sun Oct 09, 06:29:00 PM, Jeff said…


    Fair points, and I agree, we elect our officials to let them worry about decisions of government. We provide input through our elected officials, through our response to campaigns, etc.., but the decision is theirs. However, with that power comes responsibility.

    What should the consequences be for mistakes on decisions of this magnitude?

    I think some of us are starting to wonder though, what would the difference be if the other army were in charge? We've got these monstrous pork-laden transportation and energy bills, a gawshawful prescription drug benefit, etc... I shudder to think how much worse the Democrats would've done.

    This Supreme Court pick is the kind of thing that reminds us, the base, these guys really are worth supporting. If they don't get that, how are we to remind them?

  • At Sun Oct 09, 06:44:00 PM, The Cassandra Page said…

    Right now, with a stealth nominee, there is no fight. Rove and Bush are not acting as generals. They are making deals. With an actual fight (like Bork in '87) we win either way. Even though we lost the Bork nomination, we won in the end.

  • At Mon Oct 10, 12:07:00 AM, Anonymous said…


    Most lawyers get pretty good at adopting the views of their clients. We are paid to do it. Many of us have private views about politics, etc., but get pretty good at concealing what they are because wearing one's views too publicly turns off clients. For example, I have had business clients who are devout Muslims (they went into my office to pray on their prayer rugs, etc.) and they would never know that I support Israel. It would never cross their minds because I will not let it. Sometimes you train yourself to have no views on a subject just to stay out of trouble. I suspect that Harrier Miers is the same. That is why she regards it as a plus that people can't figure her out. As a practicing lawyer, it is a plus. But it is not for a top position like SCOTUS. The track record of Republican presidents in picking Justices shows what the serious dangers are.


  • At Mon Oct 10, 03:44:00 AM, Stephen M. St. Onge said…


            Your post, and Cassandra's comments, epitomize much of what's wrong with the criticism of Miers.

            You want a fight.  You want a nominee who has a long record of saying that the Constitution must be judged a certain way.  You want a pledge to overturn Roe v. Wade (which is pointless, as Doe v. Bolton is the real controlling decision in this field).  In short, you want Robert Bork.

            Well, I'd like Bork too, if I thought he could be confirmed.  But he can't be.  And all the evidence I've see is that the kind of nominees you favor can't be confirmed either.

            Putting Bork's name up didn't win a victory for us.  Since the Bork defeat, we've had Thomas, Souter, Ginsburg and Breyer as Justices.  Thomas got in because, like Miers, he didn't have a paper trail that could be used against him.  The other three moved the Court left.  Putting up another Bork, and losing, is likely to get us another three out of four liberal judges.

            Miers can probably be confirmed by the Senate.  All the other judges people like you want (and I want them too) simply can't be confirmed.

            Faced with the choice between another defeated nominee, and one the President trusts and the Senate will confirm, I'll take the confirmable candidate.

    The House of Saud Must Be Destroyed!

  • At Mon Oct 10, 09:07:00 AM, Jeff said…


    I would ask then why can't a nominee witha clear conservative judicial philosophy get confirmed?

    The Republicans control the Senate.

    Why not at least make every effort to get that kind of nominee confirmed, rather than just roll over before the debate begins?

  • At Mon Oct 10, 09:10:00 AM, Jeff said…


    Good words. I have long supported more transparency in picking Supreme Court Justices. We ought to be able to clarify in some detail where they stand on issues. It is one of the three branchs of our government, shouldn't we as citizens be able to have some insight on what is being done with it?


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