Who's Afraid of A Litmus Test?
Cross posted at Balkinization
More evidence that the stealth strategy is not going over well with movement conservatives.
Mike Paulsen and John Yoo demand that Harriet Miers explain her views on Roe v. Wade or face rejection by the Senate:
The only way out of this mess is for GOP senators to ask — and to require Miers to answer, as a condition of confirmation — direct questions about her judicial philosophy and its application to concrete constitutional issues. Republicans should test Miers' core legal principles. And if she fails the test, or refuses to take it, they can vote against her.
The administration's stealth strategy assumes that it is improper for senators to ask, or for a nominee to answer, a question about Roe vs. Wade or any other substantive constitutional question. This has things exactly backward. The Constitution not only permits such questioning, it arguably requires it. Although the Constitution makes judges independent after appointment, it sets up an explicitly political appointment process before a judge is approved. Why on Earth would determining a nominee's approach to interpreting the Constitution be thought to be out of bounds, before giving her a lifetime appointment to do exactly that?
Is there any line of inquiry that the Constitution does not permit? Yes. It would be improper to try to exact a pledge as to how a nominee will rule in future cases. As long as the inquiry stops short of that, it does not violate the Constitution's protection of judicial independence, nor does it violate judicial ethics. Parties before the courts are entitled to judges who will consider their cases without bias. But they are not entitled to judges who have no views of the law. An open mind is one thing; an empty head is another.
We would go one step further. The most useful way of discovering a nominee's views is through "litmus tests." One question would yield the maximum information about a nominee's judicial philosophy (without requiring a commitment as to any future ruling): "What do you think of Roe vs. Wade"? The answer could explain her theory of constitutional interpretation, her views on the judicial invention of rights not set forth in the Constitution, her views on when courts should follow precedent, and her views about the judiciary's role in our constitutional system.
Conservatives should insist that all nominees should interpret the Constitution in strict accordance with its text, structure and original understanding. Judicial decisions that depart from these principles amount to freewheeling policymaking from the bench. Precedent always should receive respectful consideration, but it cannot trump the Constitution. Because the Roe vs. Wade decision ran contrary to the Constitution and sound principles of constitutional interpretation, conservatives can maintain, forthrightly and without fear, that no judge should be appointed to any federal court who thinks the case was correctly decided as an original matter.
The administration may prove right in its claims that Miers is a principled conservative and an outstanding lawyer. Miers may very well think Roe vs. Wade is wrong and that judges should strictly interpret the law rather than make law. All she has to do to prove it is to answer one simple question: Ms. Miers, what do you think of Roe vs. Wade?
Now that's a litmus test. If you think that Roe is correctly decided, you are hereby disqualified from serving on the federal judiciary. No ifs, ands, or buts.
Of course, as I've pointed out on any number of occasions, Republicans can preserve their winning electoral coalition and remain as the majority party only if they don't force judicial candidates to state under oath that they oppose Roe v. Wade and seek to overturn it. So now movement conservatives, justifiably angered by Bush's cronyism and lack of serious concern about the Constitution, are demanding that the Senate Republicans destroy their own coalition.
I'm really looking forward to the hearings, aren't you?
as a side note, robert bork's oped in the wsj today (against Miers) was a wonderful reminder of why the country is very fortunate that he didn't become a supreme court justice: he's a nut. he literally thinks the the supreme court is left leaning and imperialistic.
October 19, 2005 2:36 PM | Reply | Permalink
The LA Times describes John Yoo as follows:
This is more benign and less honest than:
John Yoo is a morally-depraved individual who should be treated as a pariah rather than rewarded with professorships and op-eds.
October 19, 2005 3:14 PM | Reply | Permalink
Exactly Howard! They argue one way, then they argue the other--whatever suits their politics. Another goofy thing: the authors say:
Is there any line of inquiry that the Constitution does not permit? Yes. It would be improper to try to exact a pledge as to how a nominee will rule in future cases.
Then they say:
Conservatives should insist that all nominees should interpret the Constitution in strict accordance with its text, structure and original understanding.
Could the authors please explain exactly where in the text of the Constitution they find the clause preventing a pledge on future rulings? They are correct of course, that such a pledge would be inappropriate--it's just that only "freewheeling" can find that in the Constitution.
Yoo of course is the guy who finds the Constitution gives the President absurdly broad powers to conduct war at his pleasure and to torture anyone he decides is a terrorist. Yoo is a jerk.
October 19, 2005 3:45 PM | Reply | Permalink
So now movement conservatives, justifiably angered by Bush's cronyism and lack of serious concern about the Constitution, are demanding that the Senate Republicans destroy their own coalition.
I wonder if this is actually true? Would the Republican coalition be destroyed by an overturning of Roe? Is it possible that the actual status of Roe is only important to people who are highly unlikely to switch their voting pattern? Perhaps true swing voters, the ones that decide elections, care less about Roe than about whether, subject to a certain amount of reasonable restrictions, abortion remains legal, something that overturning Roe would not directly affect.
The conventional wisdom is that if Roe were actually overturned, it would be a huge benefit for Democrats as people came face to face with Republican extremism. But while it may be a boon to Democratic fundraising, whether it would be a boon to Democratic candidates is another issue. The fact is that if Roe were gone, individual states would pass their own abortion laws. In most cases, the level of restriction would match the political culture of that particular state. It would probably come to resemble the death penalty, where most states allow it, but a handful do not. Probably a handful of states would ban abortion, some more would severely restrict it, but most would leave it pretty much as is. But that's a guess. If there's actually been research about the likely effects of a Roe reversal, I'd be interested to hear about it.
October 19, 2005 3:46 PM | Reply | Permalink
Methinks that all these fundamentalists doth protest overmuch. Maybe they are doing the protestating (with calculated ineffectiveness) in place of the more serious questions that would likely come from Wall St and other more moderate Repug factions.
And wish all you want, she ain't gonna answer questions about Roe & the Senate isn't even gonna seriously try to make her. But the question is how many pols will use her evasiveness as cover to vote for a nominee who clearly meets the anti-Roe litmus test?
I say those politicians, especially the moderate Repugs, should be dumped one and all.
October 19, 2005 4:47 PM | Reply | Permalink
By insulting Specter by publically saying he misunderstood their private conversation, Miers may have destroyed any chance she has of being confirmed.
Specter seems pissed off at her--and generally it's not good to piss off the guy leading the committee deciding whether you should be hired.
Specter is also pissed off that apparently she answered questions for Dobson and co., but won't answer questions for the Senate. No Senator likes to be publically castrated.
October 19, 2005 5:01 PM | Reply | Permalink
But while it may be a boon to Democratic fundraising, whether it would be a boon to Democratic candidates is another issue.
There are moderates in red states, and pro-choice women who vote Republican because they don't really think Roe will be overturned -- I know several of these myself.
But look at it from the other side for a minute. Roe is overturned, and then what for the religious conservatives? What else will the Dobsons and the Robertsons have to fire up their followers with? The states where abortion is a crucial issue will end up banning it, and the issue will go away from there (and I think those states will be viewed as Rubedoms by most people); in the rest of the country it will continue to be a vote loser. So I think there's a positive aspect, moderate votes Democrats would pick up, and a negative aspect, a satiated winger base, if Roe is overturned. And really, the country is so evenly divided it doesn't take too many votes to swing a national election.
October 19, 2005 10:29 PM | Reply | Permalink
If Roe is overturned, every state in the nation becomes a constant battleground. People seem to think that this question will reach some state of equilibrium over time. I see no reason to think that.
If Roe is overturned, Griswold, Lawrence, and Baird are next.
October 20, 2005 7:17 AM | Reply | Permalink
The New York Times
October 20, 2005
Miers Is Asked to Redo Reply to Questions
By DAVID D. KIRKPATRICK
http://www.nytimes.com/2005/10/20/politics/politicsspecial1/20con firm.html?pagewanted=print
=====================================
The Supreme Court nomination of Harriet E. Miers suffered another setback on Wednesday when the Republican and Democratic leaders of the Senate Judiciary Committee asked her to resubmit parts of her judicial questionnaire, saying various members had found her responses "inadequate," "insufficient" and "insulting."
...
Former Senator Daniel R. Coats of Indiana, the administration's appointed guide for Ms. Miers on Capitol Hill, defended her answers in the Senate questionnaire as a work in progress.
...
Mr. Specter, however, has said that Ms. Miers told him last week that she would complete the questionnaire by last Friday.
============================
Is Specter that stupid?
She meant she would hand in a complete uncompleted
questionnaire by Friday.
I wonder what comes next --- hmm
That's a do over.
The answers I handed in were not my final answers.
Hindu!
I don't understand. This is the Senate - You wanted real answers???
The dog ate the completed copy.
OR - She could get aggressive
I was busy protesting at an abortion clinic exercising my first amendment rights.
I was screaming at those damn Beltway bureaucrats who
were giving me trouble because I hadn't paid my bar
membership dues for years.
Yo Arlen - you think because your hair grew back you're a tough guy? Fuggedaboutit.
Right to Privacy. Right to Privacy. Right to Privacy. What about my right to privacy you Griswold dirtbags?
Cheers
/fred
October 20, 2005 7:34 AM | Reply | Permalink
Let's not forget, that the substance of Yoo's argument was that the Presidnt could authorize torture because, well, the President could do it. Seems awfully convenient now for him to back pedal on presidential authority. If the President says she's the best of the pack, how can Yoo disagree if that authority?
The author of a would-be authoritarian presidency has little room for appeal.
October 20, 2005 8:04 AM | Reply | Permalink
If Roe is overturned, every state in the nation becomes a constant battleground. People seem to think that this question will reach some state of equilibrium over time. I see no reason to think that.
Every state is already a battleground in a sense. It's just that with
Roe in place, a lot of people on the "winning" (pro-choice) side of that battle don't see any need to get involved. Overturn Roe, and overturn that dynamic.
October 20, 2005 5:27 PM | Reply | Permalink
I suspect that when all the hearings are over, unless something dramatic comes up, she will be confirmed, with virtually ALL Republican votes, narrowly, and this will all rapidly become yesterday's news. Her SCOTUS role as Justice Miers, on the other hand, will be for a long time.
And the RW fundies doth protest overmuch. They have someone who has clearly already passed the abortion & other 'moral issue' litmus test. Qualifications? Please -- no one said much about Clarence Thomas until the Anita Hill flap came out.
October 21, 2005 2:23 PM | Reply | Permalink
If there are indictments next week, they will be pulling the nomination by Thanksgiving. That is my opinion anyway.
Litmus or not, this nomination has way too many negatives for the Republicans to carry it to an up or down vote. The embarrassment of an extremely close vote, either way, would only further weaken the Repubs. It would be better to pull the nominee, go away on holiday break, come back next year, and have a real nominee to wash away the 'ick factor' of this one.
Besides, Sandra seems to be doing just fine working on the bench, as the Republicans screw around with this silly choice.
October 21, 2005 2:42 PM | Reply | Permalink
To be sung to the tune of "What shall we do with the drunken sailor?" it actually describes what conservatives are doing with Harriet Miers.
What shall we do with Harriet Miers,
What shall we do with Harriet Miers,
What shall we do with Harriet Miers,
Earl-ly in the morning?
Yo Ho, and down she's sinkin',
Yo Ho, and down she's sinkin',
Yo Ho, and down she's sinkin',
Earl-ly in the morning!
Dig for the dirt at the Texas Lott'ry,
Dig for the dirt at the Texas Lott'ry,
Dig for the dirt at the Texas Lott'ry,
Earl-ly in the morning!
Yo Ho, and down she's sinkin',
Yo Ho, and down she's sinkin',
Yo Ho, and down she's sinkin',
Earl-ly in the morning!
Smear her in the pages of the Wall Street Journal,
Smear her in the pages of the Wall Street Journal,
Smear her in the pages of the Wall Street Journal,
Earl-ly in the morning!
Yo Ho, and down she's sinkin',
Yo Ho, and down she's sinkin',
Yo Ho, and down she's sinkin',
Earl-ly in the morning!
Quiz her on minutiae in the Senate hearings,
Quiz her on minutiae in the Senate hearings,
Quiz her on minutiae in the Senate hearings,
Earl-ly in the morning!
Yo Ho, and down she's sinkin',
Yo Ho, and down she's sinkin',
Yo Ho, and down she's sinkin',
Earl-ly in the morning!
Lack of a 'Yes' and a long time means No,
Lack of a 'Yes' and a long time means No,
Lack of a 'Yes' and a long time means No,
Earl-ly in the morning!
Yo Ho, and down she's sinkin',
Yo Ho, and down she's sinkin',
Yo Ho, and down she's sinkin',
Earl-ly in the morning!
That's what we'll do with Harriet Miers,
That's what we'll do with Harriet Miers,
That's what we'll do with Harriet Miers,
Earl-ly in the Morning!
October 22, 2005 12:15 PM | Reply | Permalink