Consigliere Harriet Miers 'The Originalist' Part II

Corbis Images 'Harriet Miers in the Oval office with President Bush July 2005'

Let's start by outlining the explanations, courtesy of Darlene Superville @ Law.com, on some of the confusing terms of the moment, surrounding the 'Outside the Judicial Monastery' nomination of Harriet Miers:

ORIGINALIST: Supreme Court Justice Antonin Scalia says he's one: "I am one of a small number of judges -- a small number of anybody, judges, professors, lawyers -- who are known as originalists. Our manner of interpreting the Constitution is to begin with the text and to give that text the meaning that it bore when it was adopted by the people."  I believe Harriet Miers is one, even though the President tells us she is a strict constructionist.

"Originalism" is a legal philosophy that says the Constitution means the same thing today as it did when it was drafted in the summer of 1787, making no allowances for societal changes. It also says the Constitution's meaning can only be changed by amendment, a difficult process that requires two-thirds approval by each house of Congress and three-fourths of the states.

STRICT CONSTRUCTIONIST: Similar to an originalist, a strict constructionist is one who sticks to the meaning of the words in the Constitution as they were used at the time of its drafting without reading too much into them.

These are the kinds of judges President Bush says he wants for the nation's courts. He says he considers Harriet Miers to be one (I beg to differ, I would say an originalist). He says Chief Justice Roberts, passes the litmus test.

"He's a person who understands what it means to be a strict constructionist, somebody who looks at the words of the Constitution for what they are, somebody who will not legislate from the bench," Bush said in Atlanta shortly after nominating Roberts on July 19.

Corbis Images the White House Counsel Harriet Miers escorts US Supreme Court Chief Justice nominee, John Roberts to the Oval office in July 2005

STARE DECISIS: "Stare decisis" (stair-ee dih-sigh-sis) is Latin for "to stand by a decision."

In legal terms, it is the doctrine that says courts are bound by previous court decisions, or precedent, on questions previously raised, particularly when the case has been decided by a higher court. Senators on the Judiciary Committee, which [will hold Harriet Miers'] confirmation hearings, will likely want to explore [her] views on stare decisis.

The situation is very different for justices of the Supreme Court, "who really are responsible for developing precedent," Tobias said.

The High Court has the power to review, and possibly overturn, its earlier decisions.

As Chief Justice Roberts wrote in earlier responses to the Judiciary Committee, recently made public: "Precedent plays an important role in promoting the stability of the legal system"

I now have to go back to my stand alone ally on the Miers issue, Hugh Hewitt, and look at what the evidence of the separation in the troops has damaged thus far:

"Now the complaints have all been aired, and everyone has put their marker down. Continuing the assault on Miers means committing to her defeat, an event that would be one of the more remarkable exercises in political self-destruction in memory. Though the GOP is poised to pick up seats in the Senate in 2006 --in Florida, West Virginia, Michigan, Minnesota, North Dakota, Washington State, to name just six possibilities-- the decision to turn on the president is decision the injure those chances.

Part of my disappointment with the conservatives piling on the White House is the refusal to look at the entire political situation as it exists right now, 10 months into a 48 month term, 13 months before a crucial election, a week before the Iraq election and four years into a war that will go on for decades.

Bush and his team made a judgment on what was best for the cause of reforming the judiciary now, and he's been stalwart in that cause throughout. Judging his judges on the Miers nomination is lousy analysis, especially as the case isn't ripe. Talk to me in 2009 about the Bush judicial legacy. As of today, it looks extraordinarily good, but some conservatives seem intent on snatching defeat from the jaws of victory."

"I hope the disappointed right will get over its sulk quickly as the fight over Miers is going to get very ugly very quickly as both the secular left and the anti-religious left realize that the president has nominated a thorough-going Evangelical of character and tough disposition. The light is going to go off over there that the president's eyebrows went up when Harry Reid scribbled Miers' name on the Minority Leader's list of acceptable nominees."

Corbis Images A young and radiant Harriet Miers 1983

"By day's end there will be great and spreading fear on the left, and perhaps some genuine remorse among the shoot first and think later right." Hugh wrote on October 4th, but alas even by today, the second is evidently absent, providing amunition to dispel the fear in the first and provide glee in the knowledge that we do not stand united behind the nomination, and therefore do not have trust in the President's judgment. Are you all sitting out the next election, or will you all wake up too late to reverse the damage?

From Hugh's radio show on Tuesday:

HH: "Joined now on the Hugh Hewitt Show by a veteran of the White House Counsel's office, Noel Francisco..."

HH: "Associate counsel to the president for two years, 2001 to 2003. Deputy attorney general, office of legal counsel, in the Department of Justice for a couple more years. Former law clerk to Justice Antonin Scalia, and law clerk to my friend and former colleague Michael Luttig on the U.S. Court of Appeals for the 4th Circuit. That's a pretty...are you a member of the Federalist Society?"

NF: "I think the world of Harriet Miers. I think that Harriet is the fulfillment of the president's promise, yet again, to put forward individuals who are going to strictly apply the laws, and not make it up as they go along."

Read another pro-opinion from Marvin Olasky @ World Magazine Blog who quotes an old friend of Miers, Texas Supreme Court Justice Nathan Hecht: "She's an orginalist -- that's the way she takes the Bible," and that's her approach to the Constitution as well -- "Originalist -- it means what it says."

Thomas Lifson publisher of the American Thinker, writes an excellent and thorough pro-Miers article, don't miss reading it.

"President Bush is a politician trained in strategic thinking at Harvard Business School, and schooled in tactics by experience and advice, including the experience and advice of his father, whose most lasting political mistake was the nomination of David Souter. The nomination of Harriet Miers to the Supreme Court shows that he has learned his lessons well. Regrettably, a large contingent of conservative commentators does not yet grasp the strategy and tactics at work in this excellent nomination".

I leave you with the interesting exchanges from Hugh's interviews on Radioblogger, giving a range of opinions without too many of the 'left promoting anti-Miers scurrilous comments' which the bloggosphere has in heaving abundance right now:

"Radioblogger has begun the posting of all the Miers-related interviews from today's show, with critics and supporters alike. If you are interested in the nomination, I think you will enjoy these exchanges."

And Ed Morrissey weighs in with support for Hugh, as his friend in his excellent article  'Can We Remember Who Our Friends Are': "Many of us owe Hugh a lot more than our candid opinions, and we damned well know it. He doesn't demand an oath of obedience for the helping hand he's extended to so many of us in the blogosphere, nor should we feel obliged to give one, but at least we should credit Hugh for the integrity he's so often demonstrated. Hugh doesn't shill or toady for anyone."
You are a very special person Ed, you wear your heart on your sleeve, a quality severely lacking in the bloggosphere today, and we are grateful for that.

The University of Michigan Law Library has posted "Articles by Miers" and other information, which you may find interesting.

Check out Cockalorom: "I hate elitism and this jihad against Harriet Miers from the right just screams elitism." He goes on to make some valid points in the rest of his posts relating to the nomiantion, and the aggressive attacks on Hewitt: "I think that George Will's opinion of the Miers nomination is arrogant pontification and shows an ugly contempt for democracy."

And Grenfell Hunt @ President Aristotle.

More on Harriet Miers in my previous: 'Consigliere Harriet Miers 'The Originalist' Part I'

And on Chief Justice John Roberts in my previous: Who Is 'Stare Decisis' and What does Roberts Think of Her? The Ghost of Pro Bono Past , Judge Roberts Governed by Faith or Oath?, 'A Cut Above' The Chief Justice Roberts Look , Chief Justice Roberts 'Slam Dunk',

Comments

[Kenny Pierce]

Alexandra,

It seems to me that the reactions of the various folks in the blogosphere say much more about the folks in the blogosphere than they do about Miers...simply because we don't know anything about Miers which makes it hard to talk about her.

I don't buy, though, the arguments of the people who say, "Look, don't rush to judgment; we're going to have confirmation hearings and that's where we'll find out about her." Nonsense. One of the consequences of the Democrats' poisoning of the confirmation process is that modern-day Republican confirmation hearings are carefully designed to make sure we don't learn a single bloody thing about the nominee, at least if the nominee can help it.

Once I've climbed onto my airplane I'll probably sit back and scribble out some of my reaction to the Miers nomination and the resulting brouhaha. In the meantime, I'm enjoying your posts on the subject.

[Alexandra]

Thanks Fellow Servant, DONE!

[FellowServant]

You need to fix the link for "Radioblogger" above. Broken.