National Review: Dubya Closes a Door?

[question everything]

October 17, 2005

Dubya Closes a Door?
What Harriet Miers may mean for constitutional law.

By Dennis Coyle

(snip)

The Miers nomination may prove to be a wake-up call so energizing the Republican base that they rise in revolt, scuttling the nomination and demanding that Bush fulfill his promise to name a Scalia or a Thomas. That seemed unlikely at first, but the uprising seems to be gaining surprising momentum. Despite the grumblings, however, the Republican inclination to support the president is strong, and Democrats would be foolish to look a gift horse in the mouth. President Bush has handed liberal democrats a present, although they don't seem effusive in their appreciation. Miers may deliver the conservative votes that Bush promises, but there is no sign that she has the intellectual depth or sophisticated understanding of the Constitution to seriously challenge the liberal legal mainstream. For that, liberals should be breathing an immense sigh of relief. And while conservatives are appalled, Miers apparently enjoys the support of none other than Senate Minority Leader Harry Reid. Given Reid's sophisticated evaluations of judicial and presidential competence, what more recommendation could one need?

(snip)

Perhaps President Bush was conflating liberal dominion over constitutional law and activist courts since the New Deal with intellectualism. That is easy to do, given the pervasiveness of liberal ideology in legal scholarship and academia more broadly. It is tempting to blame the root for the branch. If the liberal jurisprudential establishment emerged from elite schools and journals and spoke in large words and grand theory, the thinking might go, it can only be tamed by reaching outside the Washington-New York intelligentsia to let some Texas common sense cut them down to size.

But law, unlike politics, is inescapably an intellectual exercise, and reason is the bedrock of the rule of law. It is about the careful articulation of principles and nuanced applications, made persuasive by a compelling understanding of the constitutional order and the role of courts. Law is not molded simply by the votes of judges and justices, but in the power and cogency of written opinions and the philosophy they express, which become the fodder of law-review articles, commentaries, and conference panels, and eventually permeate the classroom teaching that forms the next generation of judges, lawyers and scholars. To bypass the opportunity to strengthen a conservative intellectual core — an elite — on the Court is not to make it a populist protector of freedom, but to abandon the field to the liberal elite. If the president does not appreciate this, there is no reassurance another nominee would be any better, and Democrats would surely feel more liberated then to jump on any candidate of substance.

The nomination of Harriet Miers is another chapter in the lost promise of the Reagan revolution. From the heady days of the 1980s, there have been so many missteps, perhaps including the selection of the current president's father as the custodian of the Reagan revolution. The judicial legacy of the Bushes has been raised hopes and dashed expectations: The father left us Thomas, but also Souter; the son brings Roberts, but now Miers. This may be Bush's last opportunity to make an imprint on the Supreme Court, unless health forces Justice Stevens off the bench. The next resignation may well be that of Justice Scalia, fleeing in frustration.

(snip)

—Dennis Coyle is an associate professor of politics at the Catholic University of America and a visiting scholar at the American Enterprise Institute .


http://www.nationalreview.com/comment/coyle200510170835.asp

[rodeodance]

1. Her vote will be a Bush proxy vote!! It will not matter if she has or does

not have 'intellectual depth"------!!

.....but there is no sign that she has the intellectual depth or sophisticated understanding of the Constitution to seriously challenge the liberal legal mainstream. For that, liberals should be breathing an immense sigh of relief. And while conservatives are appalled,

[question everything]

3. Was actually surprised to read of a conservative praising

intellectualism, when it was clear that both Reagan and Bush were adored for their simple minds, were selected to play the role of a president while the powers behind tell them what to say and do. Of course, 9/11 was not part of the game.

[funflower]

2. Blah, blah, blah, blah.... You don't have to be a con law expert to give *

whatever he wants.

[dsc]

4. I think some of you are missing his point

A vote isn't enough in many cases. Assuming that some of the people on the Court are persueded by reason, you need to be able to articulate a convincing rationale for the other members to vote with you. Miers is unlikely to fill that bill.

[question everything]

5. Indeed. But the White House won't recognize intelligence

if one would stare it in the face.

After all, this is where mediocrity is celebrated.

[Boo Boo]

6. Let's see...

It looks as if Bush has very likely lied to Fitz; that's obstruction and perhaps criminal conspiracy. He's managed to appoint a Bush loyalist---who wrote a legal opinion for Bush's father when he pardoned a raft of Iran Contra conspirators---to be Chief Justice of the Supreme Court.

Bush has retained, as his personal attorney, the man that defended Richard Secord during Iran Contra, and now he his trying to appoint a personal adviser, who's major qualification appears to be that she is dog-loyal to the President, to a position on the Supreme Court.

This is a gift horse?

Mr. Coyle... You, Sir, are wearing your ass for a hat.

The Bush admin has been holed below the waterline. Persons very close to the President are in serious legal jeopardy. There are two investigations into criminal conspiracy and espionage that are not just entwined with each other, but also with the Bush administration. And let's not forget the sidetracked FBI investigation of the Niger forgeries: Senators cannot claim to unaware of which way the wind is blowing here.

Under these circumstances, it is beyond me why the Senate would think that considering any more Bush SC nominees at this point is a smart thing to do. Betrayal of public trust would be a better description. I don't think that Presidents that have retained a personal attorney in a case involving criminal conspiracy and espionage against the U.S. government should be allowed to seat a SC Justice while that case is outstanding---especially when the investigation is coming to a conclusion.

IMO, Bush is stacking the Court to cover his own ass; Roe v. Wade has nothing to do with it. The Senate should tell Bush that the Plame investigation is casting a shadow over the nomination process, creating an appearance of impropriety that taints the proceedings. They should refuse to consider this, or any other nominations to the SC until the investigation is concluded, and the President is shown to be clear of legal jeopardy.

I know, I know... Fat chance.