Rightank

Much of the reaction to Alito’s nomination has been predictable. Liberals are questioning if not oppositional while conservatives are overjoyed that Bush did not nominate another diversity pick (Miers) or someone otherwise unqualified.

After reviewing Judge Alito’s opinion in Saxe v. State College Area School District, I am more confident that Alito is a great choice by President Bush. Saxe involved a suit by a Christian parent who objected to their school’s Anti-Harassment Policy (”AHA”) because he does approve of homosexuality and who felt that he and his children would be punished for expressing those beliefs. The AHA policy protected, among others, harrassment based upon sexual orientation:

Harassment on the basis of sexual orientation is unwelcome verbal, written or physical conduct directed at the characteristics of a person’s perceived sexual orientation, such as negative name calling and degrading behavior.

. . .

Other harassment on the basis of such things as clothing, physical appearance, social skills, peer group, income, intellect, educational program, hobbies or values, etc. may also cause or effect substantial interfering with a student’s educational performance or creating an intimidating, hostile or offensive environment. This type of harassment is also protected against by this policy and procedures.

Clearly, the policy was political correctness run amok. Judge Alito’s emphasis on protecting the First Amendment rights of all schoolchildren (even those who objected to homosexuality on religious grounds) is outstanding:

[T]he Policy prohibits harassment based on personal characteristics that are not protected underfederal law. Titles VI and IX, taken together with the other relevant federal statutes, cover only harassment based on sex, race, color, national origin, age and disability. The Policy, in contrast, is much broader, reaching, at the extreme, a catch-all category of “other personal characteristics” (which, the Policy states, includes things like “clothing,” “appearance,” “hobbies and values,” and “social skills.”) Insofar as the policy attempts to prevent students from making negative comments about each others’ “appearance,” “clothing,” and”social skills,” it may be brave, futile, or merely silly. But attempting to proscribe negative comments about “values,” as that term is commonly used today, is something else altogether. By prohibiting disparaging speech directed at a person’s “values,” the Policy strikes at the heart of moral and political discourse–the lifeblood of constitutional self government (and democratic education) and the core concern of the First Amendment. That speech about “values” may offend is not cause for its prohibition, but rather the reason for its protection: “a principal ‘function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’ ” (citations omitted). No court or legislature has ever suggested that unwelcome speech directed at another’s “values” may be prohibited under the rubric of anti-discrimination.

Scalito saw that values-based discrimination (i.e. religious discrimination) was contrary to the purpose of the First Amendment, which is and was an invitation to poltical, social, or religious disputations held in the public square. Moreover, a hurt feelings do not trump an individual’s verbal expression of conscience, particularly religious expression which is explicitly protected in the First Amendment.

Scalito’s unwillingness to ride the wave of discrminatory lawlessness is great news for Americans who value freedom and an originalist view of the First Amendment.

Thanks to Liberty Counsel for highlighting the case.

Federal Appeals Court Judge Samuel Alito was nominated to the Supreme Court today as Justice O’Connor’s successor by President Bush. My hearty congratulations, Judge Alito.

From what I have read about Judge Alito, he is a conservative who recognizes he is not above the law and who will interpret the law with an orginalist perspective. Congratulations President Bush on nominating a verifiable conservative judge who is skilled in constitutional law.

Alito’s confirmation will allow the general public to understand (if they pay attention) why it is important to have originalist judges and why the radicialism of some who wear black robes is so harmful for our democratic republic.

More on the nomination later (I plan to read many of Alito’s opinions and comment). For now, congratulations. I am pleased to support Alito’s nomination to the SCOTUS.

Harriet Miers withdraws.

Hopefully, President Bush and his advisers have learned their lesson: Appoint a true, verifiable conservative.

Justice Antonin Scalia recently reviewed Steven D. Smith’s book Law’s Quandary. Scalia’s review is a fascinating read. My favorite part (besides his “LEAVE HERE OR DIE” hypothetical):

[I]n a democracy, it is not the function of law to establish any more social policy than what is fairly expressed by legislation, enacted through prescribed democratic procedures. It troubles Smith, but does not at all trouble me—in fact, it pleases me—that giving the words of the Constitution their normal meaning would “expel from the domain of legal issues . . . most of the constitutional disputes that capture our attention,” such as “Can a macho military educational institution dedicated to what is euphemistically called the ‘adversative’ method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one’s life?” If we should read English as English, Smith bemoans, “these questions would seemingly all have received the same answer: ‘No law on that one.’”

I wish all nine Supremes possessed the same judicial disposition and understanding of our representative democracy as does Justice Scalia. I wonder how Harriet Miers would respond to Scalia’s observation of truth?

Hat Tip: Southern Appeal

Taking my stand: I oppose the Miers nomination.

In today’s OpinonJournal.com, Robert Bork has a must-read, cogent, and devastating piece on the Miers nomination. Read it . . . and then read it again. Here’s my favorite part:

Some moderate (i.e., lukewarm) conservatives admonish the rest of us to hold our fire until Ms. Miers’s performance at her hearing tells us more about her outlook on law, but any significant revelations are highly unlikely. She cannot be expected to endorse originalism; that would alienate the bloc of senators who think constitutional philosophy is about arriving at pleasing political results. What, then, can she say? Probably that she cannot discuss any issue likely to come before the court. Given the adventurousness of this court, that’s just about every issue imaginable. What we can expect in all probability is platitudes about not “legislating from the bench.” The Senate is asked, then, to confirm a nominee with no visible judicial philosophy who lacks the basic skills of persuasive argument and clear writing.

I agree that the nomination hearings will yield next to nothing on Miers judicial philosophy and will leave Republicans and Democrats equally confused. Bork implies that true conservatives are not supporting the nomination. How true are you?

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.

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.”