For a group that has repeatedly argued that the religious practice of judicial nominees has no bearing on their confirmation, conservatives suddenly have discovered a lot of interest in the evangelical outlook of Harriet Miers. [Captain Ed]
I was thinking along the same lines today as I heard the defense of Miers’ on the various talk shows. First we complain if someone like a Chuck Shumer asks a question aimed at someone’s religious beliefs and then defend the type of justice somebody would make based on their religious belief. So which is it? I found it to be generally good news to hear that Justice Robert’s wife was heavily involved in the pro-life movement and was also pleased to hear that Harriet Miers seems to be be a committed Evangelical, but this alone did not squelch any qualms. Justice O’Connor was suppose to be pro-life, but she found a way to have a judicial hallucination about abortion in the Constitution. This is why the issue of judicial temperament is so important. It is good if she believes that abortion is wrong, but does she believe that Roe v. Wade was decided wrongly based on Constitutional arguments? This is someone we won’t know till a case comes up that she votes on. The nomination hearings will more than likely shed no light on these questions since the hearings have become a form of judicial dodge ball. If we want a judge to vote against abortion because they are pro-life aren’t we advocating a form of judicial activism? A good judge (unlike a politician) should put the merits of the law forefront over personal beliefs. If a law truly is immoral and someone can not in uphold it then they should step down and not try to give it a judicial overwrite.
Of course when it came to Roe v. Wade there was no there there. That is why nominees are questioned so much about precedents. All of the legal meat is in the precedent and none of it is in the Constitution in this case. We always hear about the defense of precedents, but never hear the arguments made in the original precedent advanced. This is a tacit admission by defenders of Roe v. Wade that the arguments made were out of whole cloth. The whole question about Stare Decisis (Which as Feddie says is fo’ Suckas!) is a red (or should I say blue) herring thrown out by defenders of abortion. When the Supreme Court decisionLawrence and Garner v. Texas overturned the precedent set by Bowers v. Hardwick only 17 years earlier there was zero outcry by liberals bemoaning that a precedent had been overturned.
There has been talk of the two camps of the Coalition of the Chillin’ and the Coalition of the Illin’. I am part of the coalition of the annoyed but hopeful. I would love to buy in to the arguments of my favorite talk show host Hugh Hewitt in support of Miers. Hugh though is a pollyanna-conservative and has put a smiley face on many things over the last couple of years. He has ended up being right the majority of the time. Sen Spectre was not quite the disaster that was forecast as far as being the head of the judiciary committee, just as Hugh said. Sen Spectre made some noises and asked the typical questions but he did get the nominees through. Hugh is involved in a bit of grade inflation when he gave her pick a B+. Any pick that divides the Presidents base more than the opposition can not be a B+. Possibly a solid B, but why couldn’t we have the A list like Luttig and McConnell? The issues of the day are too important than just a solid pick. The nomination should have knocked one out of the park instead of just bunting. With 1.6 million people a year being killed by abortion do you go with someone who is capable and just might practice an originalist judicial philosophy or do you go with someone who has a proven track record in this regard? If the President was seeking a heart surgeon would he go with someone recognized as the best by their piers or take the recommendation by somebody that they think a doctor would make a good heart surgeon? Unfortunately there is a life and death seriousness when it comes to the Supreme Court. What the President doesn’t seem to understand is that he has taken a chance when no chance needed to be taken. Sure she might become a great justice, but when a pick for the Supreme Court is announced we shouldn’t have to invoke faith or hope.
Update: Syndey at Aggressive Conservative is thinking along the same lines (in fact used the same post title).
Oswald Sobrino says I Trust an Evangelical Nominee More Than a Catholic Nominee. Well he has got a point. When was the last time you heard an Evangelical politician say "I am personally opposed, but…"?
Fr. Rob Johansen is finally back with a good post on the Miers’ nomination and some of the Chicken Little attitude that has occured.
Jimmy Akin blogs about the "Don’t ask, don’t tell" aspect of nominations. What we need to need the most is precisely what we won’t find out. The judicial Catch-22.
Professor Bainbridge The Case Against Harriet Miers: The Baseball Analogy