Rightank

In today’s Wall Street Journal, John Fund reports how the White House disengaged Dobson’s concern regarding Miers’s fitness for the Supreme Court: an assurance by two Texans (both judges) that Miers would vote to sink Roe.

Why was such an assurance comforting to Dobson? Should it even matter?

Opposition to Roe does not define conservatism nor should it. Sure, Roe is the child-killing creation of Justice Blackmun and its logic is utterly detestable, but Lawrence, Grutter, and Kelo are equally detestable. When it comes to judging, especially U.S. Supreme Court judging, it is the method of reaching the judgment—not the issue at hand—that is crucial. If a judge is an originalist, he or she would never find abortion in the Bill of Rights and other Amendments. Conversely, a judge who prefers straying from the text and enjoys modernizing its meaning will always find rights (like abortion) that are not found in the Constitution.

Bush needs to stop drinking his own Kool-aid if he believes that opposition to Roe is what makes a good Supreme Court Justice and that it is the raison d’etre why conservatives should stop questioning and start supporting. While Roe is a hot-button issue for some, that’s just the tip of the iceberg. Matt Margolis reasons:

Democrats might think that the most important issue out there is Roe v. Wade, but we conservatives should not pretend that it takes one issue for us to support someone, or that we have a religious litmus test.

We can’t afford to pretend that even if Miers opposes abortion that her job begins and ends there. Should she be confirmed, she’ll be in position to vote on lots of cases that can have an impact on our lives. If she votes to overturn Roe v. Wade one day, and then votes to support racial quotas the next day, and then to support gay marriage the day after, did we really get everything we wanted in a nominee?

Dobson might represent alot of conservatives but he doesn’t represent me. Reversing Roe won’t end abortion—there are plenty of states who have laws on the books permiting abortion. Conservatives can act, if they choose, within those states and campaign for the repeal of abortion laws. Conservatives cannot, however, reverse Miers when she’s an official Supreme. Which is why her nomination deserves close, prodigious scrutiny from conservatives and why after realizing she’s not a verifiable conservative, her nomination should be opposed.

In the October 24 issue of National Review, David Frum had this to say in his article addressing the Miers nomination:

[T]he President’s Christian faith has not been inconsistent with his abandonment of the Federal Marriage Amendment the instant he was reelected . . .

Frum’s astute aside caused a lightning bolt go off in my mind. Why hasn’t President Bush addressed the Federal Marriage Amendment (”FMA”)? Why hasn’t he pushed it?

Since W.’s State of the Union address on February 2, 2005, he has been silent on the FMA. He called marriage a “sacred institution” and the “foundation of society and added:

For the good of families, children, and society, I support a constitutional amendment to protect the institution of marriage.

If saying little is supporting, then President Bush is doing a stand-up job on the FMA. It’s a shame Congress could not appropriate the FMA, as President Bush wouldn’t spill ink vetoing the expenditure. Incredibly, Bush told Washington Post reporters unabashedly before his SOTU speech that he decided not to push the FMA:

In a wide-ranging, 35-minute interview aboard Air Force One on Friday, Bush laid out new details of his second-term plans for both foreign and domestic policy. For the first time, Bush said he will not press senators to pass a constitutional amendment banning same-sex marriage, the top priority for many social conservative groups.

To make matters worse, the national party is following the President’s lead of passive support. If you go back to the Republican Party Platform, issued during the Republican Party Convention of 2004, the platform has this to say about preserving marriage:

We strongly support President Bush’s call for a Constitutional Amendment that fully protects marriage, and we believe that neither federal or state judges nor bureaucrats should force states to recognize other living arrangements as equivalent to marriage. We believe, and the social science confirms, that the well-being of the children is best accomplished in the environment of the home, nurtured by their mother and father anchored by the bonds of marriage. We further believe that the legal recognition and the accompanying benefits afforded couples should be preserved for that unique and special union of one man and one woman which has historically been called marriage.

Yet, on the Republican Party’s offical website, one has to struggle to locate anything supporting the FMA. In the “Faith and Values” team section, there is a bullet point that says “President Bush believes that marriage is the union between one man and one woman. He supports a Federal Marriage Amendment.” That’s it. In addition, the issues section—where all the important issues are highlighted—contains nothing about supporting the FMA or traditional marriage. I doubt that’s an unintentional gaffe by the party elite.

Without strong presidential and congressional support, the FMA will go nowhere. Time is running out. The ACLU and their radical allies are consistently bringing one lawsuit after another, intending to wreak havoc among state laws and apply pressure to weaken the Defense of Marriage Act, state constitutional provisions, and other state law that explicitly define marriage between one man and one woman. Already miffed at conservatives who have criticized his nomination of Miers, Bush’s reticent stance is unlikely to change. The FMA will likely languish in Congress, resulting in yet another Second Term disappointment for conservatives . . . and that’s a shame.

President Bush’s ill-considered nomination of Harriet Miers has provided the impetus for a national conversation. The conversation is not about what type of jurisprudential lens a Supreme Court Justice—and judges in general—should use when interpreting the law (particularly constitutional law). The conversation is between conservatives. The intra-ideological debate is not the moderates versus the ultras or the neos versus the Goldwaters. Rather, the conversation pits the principalists versus the loyalists.

Generally, principalists oppose the Miers nomination because Miers lacks a visible and verifiable conservatism. Dismayingly, they want to believe that Bush nominated a Scalia or a Thomas but faced with her meager qualifications (although many accomplishments) they recognize Bush’s assertion is more sophistry than substance. Principalists believe that core conservative values and an originalist understanding of the Constitution and its Founding are values to live by privately and publicly. Miers conservatism, vouched for by Bush, has not been openly expressed in writing or otherwise. A closet conservative like Miers, principalists insist, is more apt to morph into an out-spoken liberal on the Court (think Souter). With a bounteous supply of many other qualified out-spoken conservatives, Bush’s omission smacks of a stinging rebuke to principalists who yearned to defend a Bork-like nominee. With Miers, there is nothing conservative to defend. For example, no book or law review article defending conservative approach to constitutional interpretation or criticizing Roe’s penumbral logic.

Loyalists are hard-core party-liners who bleed elephant-red. They are politically infatuated with the Republican Party or with President Bush (the party leader). They are conservatives second and include many who are more moderate in their viewpoint (more Christine Whitman than David Frum). Bush’s prior deeds—leading the War on Terror or his past nominations of verifiable conservatives to important federal appellate courts, especially his decision to re-nominate Brown, Owen, and Pryor—convince loyalists that when Bush said Miers is like Scalia and Thomas, Bush was telling the truth. [Note: I’m not implying that Bush lied. Bush might believe Miers is Scalia- or Thomas-like because she is a strict constructionist. However, that is only part of the equation. For instance, her stance on affirmative action is likely not the same as Scalia or Thomas].

Loyalists not only believe that Bush is right, but that his nomination deserves unfettered support. By criticizing Miers, you inevitably criticize the president who appointed her, an unconscionable thing to do. Loyalists seize on Miers’s religiousity, the Christian evangelism that has awakened her from the slumber of moral relativism to a belief in family, fetal life, and Christ. Religious tests are OK, as long as Bush administers the questions.

What will the end result of the Miers divide mean for conservatives? Is this schism a harbinger of future ideological strife?

If Bush continues to push amnesty for illegals and to refuse to exercise his constitutional veto in order to stop a spend-hungry Congress from siphoning the federal treasury, then criticism from principalists will continue. Bush and his representatives need to change their strategy in speaking to principalists. Instead of childish name-calling (Sexist!), Bush must assuage their concerns by engaging in a more substantive, intelligent conversation.

Bush failed to recognize that the Court was the issue for the principalists, whose voice is the loudest and most active part of the Republican Party’s base. A stealth candidate might satisfy some Democrats who prefer a possible conservative to a full-blown orginalist who might refrain from finding a right to same-sex marriage in the Constitution’s ether. Bush’s decision to pick a Darth Vader nominee—when so much is at stake—has unleashed the fury of a principled conservative beast, determined to roar its disapproval and frustration over a missed opportunity to change the balance of an activist Supreme Court. This time Bush “misunderestimated.”

David Frum had authored a “Petition for the Withdrawal of the Nomination of Harriet Miers to the U.S. Supreme Court” and has invited those who would like the nomination withdrawn to sign it. The petition will be delivered to the White House. I’ve signed the petition. Have you?

Donkey Stomp believes that Mrs. Bush’s comments alleging that Miers critics are sexist have been taken out of context. In addition, Donkey Stomp argues that The Today Show pulled a “media trick” on us dumbfounded conservatives who oppose Miers and our reaction to Mrs. Bush’s charge is overblown.

I can’t disagree more. Here’s the pertinent snippet of Mrs Bush’s comments:

Lauer: Some are suggesting there’s a little possible sexism in the criticism of Judge [sic] Miers.

Laura Bush: That’s possible. I think –

Lauer: How would you feel about that?

Laura Bush: That’s possible. I think she is so accomplished that… I know, I think that people are not looking at her accomplishments and not realizing that she was the first elected woman to be the head of the Texas Bar Association, for instance, and all the other things. She was the first, uh, woman managing partner of a major law firm. She was the first woman hired by a major law firm, her law firm.

It is true the Bush wasn’t the intitiator of the sexist jargon. Also, she said it was “possible” and not “yes” or “for sure” or “absolutely.” However, Mrs. Bush defined what qualifies as a sexist argument after admitting the possibility. A sexist critic of Miers’s nomination, according to Mrs. Bush, is one who disagrees that Miers’ accomplishments as a woman lawyer–head of the Texas Bar Association, managinging partner as a law firm, and first woman hired at that same firm–aren’t quite on par with a lawyer who deserves to sit on the Supreme Court. The notion that being a glass-ceiling breaker is not the same as being qualified for the Supreme Court and that such criticism sticks and rings true irked Mrs. Bush enough to cry “Sexist!” in an attempt to dispel the obvious–that Miers background lacks anything conservatives can hang there hat on and say “Yeah, she’ll be like Scalia and Thomas.”

Mrs. Bush is the one that stooped to the sexism charge. The conservative base who voted for Bush (and now oppose Miers) is bearing the brunt of her ridiculous “possibility.”

Darn it.

Today, in defense of Harriet Miers nomination, First Lady Laura Bush stepped out and said that the lynch mob conservatives who oppose Miers ascension to the Supreme Court are possibly a bunch of sexists. Captain Ed on Captain’s Quarters responds in part:

Perhaps people haven’t looked at her accomplishments because this White House has been completely inept at promoting them. We have heard about her work in cleaning up the Texas Lottery Commission, her status as the first woman to lead the Texas Bar Association, and her leadership as the managing partner of a large Texas law firm. Given that conservatives generally don’t trust trial lawyers and the Bar Association and are at best ambivalent to government sponsorship of gambling, those sound rather weak as arguments for a nomination to the Supreme Court. If Miers has other accomplishments that indicate why conservatives should trust Bush in her nomination, we’ve yet to hear that from the White House.

Instead, we get attacked for our supposed “sexism”, which does more to marginalize conservatives than anything the Democrats have done over the past twenty years — and it’s so demonstrably false that one wonders if the President has decided to torch his party out of a fit of pique.

Isn’t conservatism your cause, Mr. and Mrs. Bush? It’s more that a little frustrating that the Presidential couple and their representatives have taken a liking to labeling substantive argument sexist when the sexism charge doesn’t hold water. Mr. President, do you really think that the magazine you honored last week is full of a bunch of stealth sexists who are foaming at the mouth with chauvinistic anticipation of any opportunity (like the Miers nomination) to denigrate women? Do you really believe that conservative bloggers who oppose Miers (or even question the propriety of her nomination) are so intellectually inept that they need to resort to such a Deanian argument? (Unfortunately, as Jonah Goldberg has found out, even some of “fellow” conservatives are drinking too much Kool-aid regarding their own Miers position).

The conservative cause is more than the Republican party and more than a President. President Bush’s (and his wife’s) willingness to laud Harriet Miers’s ability to win a lawyer’s version of High School Student Body President when she was elected President of the Texas Bar Association–instead of her legal acuity (heaven forbid!)–proves that Miers is an accomplished nominee rather than a qualified one. There were plenty of lady jurists or attorneys who have demonstrated both a level of competence and committed conservatism that myself and other conservatives would have been willing to fight for and accept.

President Bush–who is incapable of using his veto power to disgorge a spend-happy Congress–can expend plenty of energy, even roll out his wife in defense of his quota nominee. However, his attempt to veto the conservative opposition will not work. Miers is a friend and nominee to Bush and it appears that she’s more a friend and less a nominee than W. and the First Lady would like to admit.

According to Arlen Specter, I’d be considered part of the conservative lynch mob that’s attacking the Harriet Miers nomination. There’s nothing like showing your true colors, Arlen. Frankly, I’m glad to be held in such negative regard by a liberal like Specter, who favors abortion and the gay rights.

Initially, I had reserved judgment on the Miers nomination (despite my non-elitist distaste) until the nomination hearings. But, after reading what Judge Robert Bork opined on Tucker Carlson’s program (Judge Bork is my favorite legal scholar), I’ve decided to put my trust in Bork and oppose the Miers nomination.

Judge Bork called the Miers nomination “a disaster on every level.” Shucks Mr. President, even your misinformed praise of diversity qualification deserves the disaster label. Bork slams Miers qualifications:

Well, the first one is, that this is a woman who’s undoubtedly as wonderful a person as they say she is, but so far as anyone can tell she has no experience with constitutional law whatever.

Very true. I wonder if Bush thought about that as a qualification?

Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already. So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by.

A little late? Actually, too late. Miers is definitely behind the constitutional 8-ball and will likely remain so for years. In the meantime, she’ll be cuddled and cajoled by the liberal members on the Court (including Kennedy) to side with them. Miers constitutional ineptness will likely result in a change from her current judicial philosophy because that philosophy is not jurisprudentially-based but ideologically-based. Scalia and Thomas’s originalist views pre-confirmation were based upon their expressed jurisprudential philosophies which guided their ideological leanings. Miers is just the opposite–an “conservative” with ideological leanings but no jurisprudential philosophy. (I’m sure she’s working on it right now). In such a position, she is likely to be influenced and goaded by the polished, irreverently plush jurisprudential philosophies of Ginsburg and Stevens.

I don’t expect that she can be, as the president says, a great justice.

Ouch. Bork is right. Miers will not compete with Roberts or Scalia intellectual fortitude and likely lacks the originalist tenacity of Thomas. Miers would be a constitutional work-in-progress if confirmed and her workproduct might not be to the liking of conservatives who were promised Scaliaian nominees.

Bork’s prediction on the outcome of the Miers confirmation vote is telling and worrisome:

I think they’re probably pretty high [the chances of Miers’s confirmation] because—and this should give the president some pause—they’re pretty high because the Democrats seem to like her.

I hope that the Miers nomination will be withdrawn and a verifiable, qualified conservative jurist or attorney would be appointed in her place. If that doesn’t happen, I’m not sure Miers will be confirmed. However, if she is confirmed, I believe that more Democrats than Republicans will vote for her. Many Democrats will likely use the hearings to embarrass conservative oppositionand values rather than ask probing and prickly questions. Then, after they’ve done as much damage to conservatives as they can, they’ll give Miers two thumbs up and put her on the Court. Why?

Miers is an unverifiable conservative who likely supports affirmative action and has not voiced any disapproval on gay marriage. She is a mediocre nominee if one looks at those men and women who the President bypassed. Likely, President Bush would appoint someone who has been an outspoken conservative if the Miers nomination were to fail. Thus, Democrats are getting the best they’re going to get from the Bush White House–and that’s bad news for conservatives, the Constitution, and the conservative mob waging a war of words against the Miers nomination.

Did you know that the Americans United for the Separation of Church and State’s (”AU”), in addition to their misguided and historically inaccurate interpretation of the Religion Clauses, are strong opponents of the Federal Marriage Amendment. Did you also know that they support same-sex marriage?

Here’s AU’s position on Marriage & Family Life:

Opponents of church-state separation, led by the Religious Right, extol the “traditional” family of a married couple with children. While many American families fit this mold, others do not. All loving families, regardless of their composition, deserve support from government and society. The government must not deny adoption, child custody and other fundamental rights to families labeled “non-traditional” because of religious bias or narrow interpretations of holy books held by certain religious believers. The government must also recognize that while many couples choose to be married in a house of worship, marriage itself is ultimately a civil institution; access to it should not be defined or limited because of religious strictures.

A crusade is under way to add a “marriage amendment” to the U.S. Constitution. The purpose of the drive is ostensibly to bar the federal and state governments from recognizing marriages between gay couples, although the amendment also would eradicate hundreds of legal rights that gay and lesbian families currently enjoy under a number of state and local laws. Americans United believes that the campaign to place a marriage amendment in the Constitution raises important church-state and religious liberty concerns.

The crux of AU’s position is that because marriage is a civil institution, in essence a government created model of family organization, then that structure (1) can be changed to include “non-traditional” families and (2) any attempt to limit marriage to one man and one woman is the result of religious conservatives’ attempt to change marriage away from civil-centered to a religious-centered institution and that infusion of religion violates the First Amendment. In AU’s view, marriage is about love and that any loving couple deserves government support (i.e., homosexual relationships should receive the same benefits as heterosexual couples).

But, marriage is more than love. Certainly, love brings the happy couple together but love is not the basis of government support of marriage. Traditional marriage is supported by the government because of its benefit to society at-large. A tradtional heterosexual union provides the optimal rearing environment for children and creates stability in societal structure, among other benefits. Same-sex couples are incapable of providing these benefits. Moreover, these benefits are not inherently religious.

A nation’s laws reflect the morality of its citizens. That morality, whether based upon the religiousity or conscience of its citizenry, deserves respect even if its impact is to deprive a small but politically-active group (here gays and lesbians) the “right” to marry. Taken to the extreme, by questioning any law whose basis could be found within the antiquated tomes of the “Religious Right,” many of our laws (murder comes to mind) are a form of government-sponsored religion and are unconstitutional.

That’s exactly what AU would like to see happen–a disappearance of public religion. Not only from the law, but from courthouses, city halls, and schools. Supporting gay marriage is merely a convenient tool for their irreligious purposes.

I’m a little weary of posting regarding Miers. However, David Frum’s cautionary piece on NRO is outstanding and worth more than one read.

Also, Jerome Corsi authored a piece on WorldNetDaily.com that describes a $22 million dollar settlement that Miers’s firm dished out for their representation of a convicted Ponzi schemer. I doubt Miers will tout this part of her managerial experience during confirmation.