Baseball Crank
Covering the Front and Back Pages of the Newspaper
October 19, 2005
LAW: Quick Links 10/19/05 (Supreme Court Edition)

*The now ironically named ConfirmThem makes a point I had thought about with regard to Paul Mirengoff's post on how the Democrats could filibuster Harriet Miers if, in an effort to rebuild her support on the Right, she makes clear that she would vote to overturn Roe v. Wade:

The prospect of this nomination triggering a debate on the nuclear option is perhaps the worst possible scenario for the White House. There could have been no other reason to select Harriet Miers other than to guarantee easy passage of a relatively unknown (stealth) candidate, thus avoiding a messy scene in the US Senate. But if a substantial number of Democrats decide, for whatever reason, to oppose this nomination, then not only would the administration have the fight it so desperately tried to avoid, it would have a fight without the support of much of its base.

Now, personally, as I've argued before, I don't have a problem with filibusters of judicial or executive nominees per se; my objection is to open-ended, indefinite filibusters designed to prevent a vote once it's clear that the nominee has the votes to be confirmed. But if the GOP allows such a filibuster of Miers, the Democrats will have a precedent they can point to in the future. Thus, it will be imperative for Republicans to overcome any filibuster of Miers, for the sake of future nominees and - yes - even for the sake of the power of future presidents, Republican and Democrat alike. But by staging such a battle in favor of a weak and unpopular nominee is the worst possible political ground to fight on.

*Patterico notes the related problem that Bush would be in a weaker position to name a known conservative to replace Miers than he would have been before the Miers nomination. On the other hand, if Miers' nomination falls apart solely on the issue of her qualifications, that could provide a useful corrective for the post-Bork syndrome of picking nominees with short paper trails.

*Of course, that hasn't stopped the rumor mill from running.

*So Harriet Miers has trouble keeping straight what she thinks about Griswold v. Connecticut, one of the most significant constitutional law decisions in memory. Not a good sign at all.

*As you've probably seen by now, National Review has officially weighed in against Miers. Also, John Fund on what exactly conservative leaders were told about Miers and Roe v. Wade.

*The business community likes Miers. (Via NRO). I can tell you two related reasons why business groups don't necessarily want another Scalia or, especially, another Thomas. One, business has been thrilled with the Court's imposition of constitutional limitations on state court punitive damage awards. Scalia and Thomas have both dissented from the Court's precarious majority on that issue (personally, I find much more compelling the rule against punitive damage awards based on out-of-state business operations, for reasons discussed here). Two, Thomas is also a regular dissenter from decisions on the Dormant Commerce Clause, which is often used to strike down local protectionist legislation and other hindrances on nationwide business operations. On this latter front, I think Thomas is fighting a pointless and lonely struggle against a doctrine announced in 1824 by John Marshall, but he does have his reasons. Many business leaders don't want a Justice who will revisit the constitutional foundations of some of these decisions.

*Thinking out loud here on another issue that may come up, but I'm not sure it has any weight to it. Presumably, a Justice who was married to a lower court judge would have to recuse herself from cases in which he had issued a ruling, no? Doesn't that suggest - and believe me, I'd really rather not go there - that whether Miers would have to recuse herself from cases on which Justice Nathan Hecht of the Texas Supreme Court had ruled would depend on the nature of their relationship, which seems to be at least semi-romantic but which was, until now, very properly nobody else's business? (This is of a particular concern because the number of death penalty cases coming to SCOTUS from the Texas Supreme Court is non-trivial.)

*Beldar explains why Miers' 1995 effort to block legislation over lawyer fee awards, on separation of powers grounds, was reasonable; the short answer is that lawyer fee awards, unlike many other subjects of judicial lawmaking, really are naturally subject to the plenary regulation of the judiciary by virtue of the judiciary's inherent authority to regulate the ethical practice of the bar. That doesn't mean a legislature should never intervene in those issues, but it's not judicial activism to view the discipline of lawyers as the juduciary's job in the first instance.

*Here's something that drives me nuts. First, from the Washington Post:

Grover Norquist, head of Americans for Tax Reform and host of the other meeting, declined to comment on the discussion because of its presumption of confidentiality but said there is widespread concern given the experience with the nomination of Justice David H. Souter, who proved more liberal once on the bench.

Then, from an article about a new biography of Souter:

When he joined the court 15 years ago, Souter was touted as a sure bet for conservatives.

Since then, however, he's been vilified as a traitor and closet liberal, more likely to align himself with swing voters like Sandra Day O'Connor than conservatives like Antonin Scalia.

(Via Stuart Buck). Would it kill these people to just come out and say that Souter has actually voted as a liberal? That he votes very consistently with the Court's liberal bloc? Of O'Connor and Kennedy, you could say that they proved "more liberal" (or "less conservative") or were/are "swing" voters. Souter, like Blackmun, is the genuine article, a guy who has sided with the Court's liberals on nearly every major decision that offered a left/right split. Are Scalia and Thomas conservative? Yes they are, and news accounts properly describe them as such. But actually saying "David Souter is a liberal" is apparently a bridge too far.

*Christopher Hitchens quotes Thomas Jefferson:

Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear. You will naturally examine, first, the religion of your own country. Read the Bible, then, as you would Livy or Tacitus. . . Those facts in the Bible which contradict the laws of nature, must be examined with more care, and under a variety of faces. . . I forgot to observe, when speaking of the New Testament, that you should read all the histories of Christ, as well as of those whom a council of ecclesiastics have decided for us, to be Pseudo-Evangelists, as those they named Evangelists.

This is another pet peeve of mine. Hitchens quotes this passage as if it were self-evident that reason and skepticism must lead to atheism or agnosticism, and as if mature adults must retain a permanent posture of skeptical uncertainty towards the existence of God. There's nothing wrong with, and much to be said for, taking a hard look at some point at the things we take on faith. But at some point in life, you have to make decisions and commitments; you can't hide forever behind an attitude of permanent uncertainty (as Neal Peart put it, "if you choose not to decide, you still have made a choice"). Hitchens is speaking of Harriet Miers, but who is to say that Miers has not given her faith a skeptical re-examination? After all, she left the Catholic Church to join a new denomination, a more radical break than most people experience. The fact that Miers made a decision about her faith does not necessarily mean that decision was unexamined.

Posted by Baseball Crank at 9:14 AM | Law 2005 | Comments (4) | TrackBack (0)
Comments

Re recusal: I'm pretty sure Justice Breyer recuses himself in cases coming up from his brother, a district judge. I suspect there aren't too many of them, but I can name one: HUD v. Rucker, 535 U.S. 125 (2002).

Posted by: Attila at October 19, 2005 12:03 PM

Very good objective post from a conservative viewpoint. I enjoy reading your posts for the simple reason you actually dig thru the clutter and base your views on researched facts. Even if I do not agree form time to time. I wish more bloggers were like you.

Posted by: Javaman at October 19, 2005 1:34 PM

The anti-Miers crowd simply fails to deal with reality, and I think willfully so-if she goes, Bush's hand will be weakened further. Blame John McCain (and the rest of the Gang of 14 for Miers) for Miers. The people you guys love can't be confirmed to a "swing seat" on the Court. But the battle's more important then the war, it seems.

Posted by: John Salmon at October 20, 2005 1:58 AM

Certainly the first use of Neal Peart in a Supreme Court argument I've seen.

Posted by: Mr Furious at October 20, 2005 9:45 AM
Site Meter 250wde_2004WeblogAwards_BestSports.jpg