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Thursday, October 20, 2005

Bork On Miers

Robert Bork has written this in the WSJ (registration required):

"With a single stroke--the nomination of Harriet Miers--the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement. That's not a bad day's work--for liberals." Strong words, perhaps, but not uncalled for.

Judge Bork writes, as have others, that Miers has no known experience with constitutional law and no (publicly stated, anyway) judicial philosphy. In short, her first few years on the court will be on-the-job training. The Supreme Court is not the place for that. Moreover:

"As president of the Texas Bar Association, she wrote columns for the association's journal. David Brooks of the New York Times examined those columns. He reports, with supporting examples, that the quality of her thought and writing demonstrates absolutely no "ability to write clearly and argue incisively."" Thus it's highly unlikely that even if Miers is a strict originalist that she'll be able to convince other justices of the soundness of her arguments.

The administration's defense of her--she's a past president of the Texas Bar Association, she shares Bush's judicial philosophy (whatever that might be), she's a deeply religious evangelical Christian who's contributed to pro-life causes-means little. None of that provides any clue as to how she'll vote on the cases that come before the court. It doesn't even guarantee "...that she would vote to overturn that constitutional travesty (Roe v. Wade-ed)." Bork noted:

"Reliance upon religious faith tells us nothing about how a Justice Miers would rule. Only a commitment to originalism provides a solid foundation for constitutional adjudication. There is no sign that she has thought about, much less adopted, that philosophy of judging." In short, we could end up with another Kennedy or O'Connor, whose judicial opinions were, and are,often based on what they think the law should be, not what the law is.

As for the advice from supporters of the nomination to wait and see how she performs at the confirmation hearings, I refer you to the Roberts hearings. Or the Ginsburg hearings. Or just about any Supreme Court confirmation hearings since Bork's. We're not going to learn a thing at those hearings, except maybe that Miers opposes "..."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." And:

"By passing over the many clearly qualified persons, male and female, to pick a stealth candidate, George W. Bush has sent a message to aspiring young originalists that it is better not to say anything remotely controversial, a sort of "Don't ask, don't tell" admonition to would-be judges. It is a blow in particular to the Federalist Society, most of whose members endorse originalism." That's probably the worst thing this nomination has done. It tells a whole generation of potential federal magistrates, judges and justices not to dare say or do anything that could possibly come back to haunt you. If you do, you can kiss that federal judicial appointment or promotion goodby. (editor's note: Judge Bork is co-chairman of the Federalist Society.)

As for the "trust me" attitude taken by the President and his supporters, I can only ask: why? As Judge Bork observed:

"The wars in Afghanistan and Iraq aside, George W. Bush has not governed as a conservative (amnesty for illegal immigrants, reckless spending that will ultimately undo his tax cuts, signing a campaign finance bill even while maintaining its unconstitutionality)." Judge Bork suggests, for those reasons, that supporters of the Miers nomination should re-think their position.

Judge Bork closes with this:

"It is said that at La Scala an exhausted tenor, after responding to repeated cries of "Encore," said he could not go on. A man rose in the audience to say, "You'll keep singing until you get it right." That man should be our model."

Agreed.

h/t to Patterico's Pontifications