The Harriet Miers 'Loyalist Army'

A light hearted and amusing composition photo made by yours truly, a self-confessed warrior in the Miers 'Loyalist Army', designed to amuse all, rather than fuel some......

Ed Morrissey has an excellent article in Sunday's Washington Post describing in the final analysis the three groups the Harriet Miers nomination has inherently formed within the conservative camp:

The Loyalist Army, to which I belong, who are supporting the President's nomination, are led by Hugh Hewitt. "A former White House attorney and constitutional law professor, Hewitt has a broad following and a reputation for good-humored but devastating debating skills. Many bloggers on the right owe much of their success to his support -- including me [Ed]" Presently in the minority they may be, but I wager will not stay there for long.

The Rebel Alliance, who are at present without a leader, and include the likes of Ann Coulter, Michelle Malkin, and Professor Bainbridge, wish to see Harriet Miers nomination either withdrawn or defeated. Dream on....

The Trench Dwelling Dogfaces, such as Ed who "find [themselves] torn between the unconvincing, unrelenting positivism of the Loyalists and the potentially destructive Rebel Alliance occupy a no-man's land of political tiptoeing. [They] spend [their] blogging time raising [their] heads out of the foxholes to note the inbound missiles coming from both sides, and wishing the war would stop -- really soon." Don't worry Ed you'll find yourself with the Loyalists soon, those trenches can get awfully cold and damp....

Ed goes on to criticize Roberts, claiming  him to be an 'unknown' quantity, despite all the written evidence to the contrary, going on further to say that "Roberts never gave any solid indication of whether he agreed with the philosophy of judicial restraint." Sorry Ed, I beg to differ, he has several times indicated to the contrary: commenting on the1992 Supreme Court ruling upholding Roe as "a valid precedent entitled to respect" and adding that "...it is a jolt to the legal system when you overrule a precedent". What is going to satisfy the pesismists if the length and breadth of Roberts' distinguished career was not good enough. All we have and all we will ever have are indications, and the proof will remain to be in the pudding!

'The Trench Dwelling Dogfaces'

Furthermore, if you find that Miers, in her what I believe to be 'originalist' view, is not conservative enough for the 'Trench Dwelling Dogfaces', then I give up as to what would actually satisfy your requirements. What is in your mind the theory of originalist precedent? As far as I am concerned, central to the originalist methodology are the concepts of the common good and authority, and the process of making natural law effective in society.

Originalism requires judges to adhere to the meaning of the text of the Constitution as it was understood when ratified. In constitutional adjudication, therefore, judges may only apply the positive law of the Constitution and may not, generally, directly apply natural law norms. By contrast, when determining whether to overrule or limit nonoriginalist precedent judges will be relatively unconstrained and will have to make those determinations by looking to what the common good of society requires. As a result, the theory of judicial virtue relies on how judges should exercise that discretion.

This was perfectly explained by Ave Maria's Prof. Lee Strang, in her thesis on originalism and precident.

So now we come down to two other objections: one which is to do with Miers being a trusted and loyal conservative, who was instrumental in helping  Bush develop many of the legal theories the administration has used to fight terrorism at home and abroad. Yeah, and? And the second being that there is not enough written evidence as to her ability to fully understand the judicial process, with "a  demonstrable constitutional scholarship or judicial record, and whose best qualification appears to be proximity to the President". The research done by William Dyer @ Beldar is most probably the best in the bloggosphere on the subject, and if you have time to do some of your own research try the University of Michigan Law Library which has compiled quite a lot of information.

According to the unjustly harsh previously published Washington Post article by George Will : " the President has forfeited his right to be trusted as a custodian of the Constitution". I assume the 'Rebel Alliance' who align themselves behind him, also believe that the President is no longer capable of making a decision which will preserve the originalist and strict constructionist standpoint, and believe that his nominee will  presumably try to supplant the legislative process. Again I beg to differ. He is more than capable, and what's more has just provided us with his stellar choice of the upright and brilliant John Roberts, who maddened the judicial commitee's Democrats, delighted the Republicans and charmed most of both.

I leave you with Hugh Hewitt's words:

"But the Professor of the Vines is hardly alone. "Shill," "toady," "kool-aid drinker," and --yes-- [Will's] "Joe Conason" --the unkindest cut of all-- have all been attributed to me by colleagues on the center-right. Actually, there are even worse descriptions, but I maintain a PG blog. Fine, all around. Let fly, friends, you owe me nothing except your candid opinions. But you might owe the President more."

Read my Consigliere Harriet Miers 'The Originalist' Part I and Consigliere Harriet Miers 'The Originalist' Part II, where you'll find links to some more of the Loyalist Army 'warriors', as The Anchoress calls us. Make sure you read her article today, which has the latest update on the list of links to this never ending story.....

Update:

Hugh Hewitt's long Sunday post: "What Do The Miers Nomination Critics Want? : "So I recommend that everyone involved order and read Judge Bork's fine essay and the companions to it, and begin by asking before Ms. Miers sits down before the Committee, not who would you have rather seen nominated, but rather what is it that you want in a justice."

PoliPundit writes:

"Article II, Section 2 of the U.S. Constitution
He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

Therefore, a strict interpretation of the Constitution is that the President has the power to appoint a nominee of his choice.

It is disturbing then to hear that someone the President nominates is unqualified. Who really determines then whom is qualified? And what are the established legal criteria for qualification that are to be forced upon the President?

Robert Jackson never completed law school or served as a judge. Oh, and it was Justice Jackson who picked William Rehnquist as his law clerk. You may want to make note of the biographic links and note that William Rehnquist was not a judge either."

Michelle Malkin has the 'Miers Weekend Round up' giving us the 'Rebel Alliance' viewpoint, pointing to the Mark Steyn article: "and it will fall instead to conservatives to reduce the Bush presidency to rubble"

Is anybody out there listening?

Monday Update: Joe Gandelman complains there is "too much winking going on!" Perhaps someone has a nervous tick.

Comments

[fd10801]

I think what I'm hearing from the right leaning bloggers and columnists -- those who object to Miers' appointment -- consists of one or both of two arguments:

1) She has been somewhat of a fence - straddler, "all things to all people" kind of person and / or

2) She seems to be carrying around some not very well hidden liberal baggage.

George, like his predecessor, is concerned about being liked (but not obsessed, as his predecessor was). I am not sure how much of this he can stand. I would not be surprised if he withdraws the nomination before Halloween.

[Alexandra]

Of course you can with pleasure. Do you like the 'channeling' ether touch with the grey color vapour?

[Kenny Pierce]

ROTFLOL, Alexandra, can I post that picture over at RedneckPeril? That's hiLARious.

I haven't commented on the Miers thing because I just haven't had a chance to come up for air from work, but I've been enjoying the work you've done.

[still laughing] What a picture.