Miers to be SC nominee?

Miers' comments suggest that her natural bent (at least then) was as a judicial traditionalist rather than a litmus-test conservative. True, hers was a safe answer, the kind of wallpaper comment that would not raise hackles at an ABA convention.

Debra_Law wrote:

Do her words suggest that she's a "strict constructionist, original intent" judicial wannabe who will follow in Scalia's footsteps? Oh boy . . . we're in big trouble now.

Why? You think the originalists have it wrong, and you know Bush will nominate jurists inclined towards originalism. Wouldn't you rather see this agenda pursued by a weak, incompetent judge, rather than by a second edition of Robert Bork? I am asking because I favor the originalist approach myself, and because the nomination of such a legal lightweight leaves me rather depressed. Since you start from the opposite premise to mine, it would only make sense if you reached the opposite conclusion.

In Midcareer, a Turn to Faith to Fill a Void



By EDWARD WYATT and SIMON ROMERO
Published: October 5, 2005
DALLAS, Oct. 4 - By 1979, Harriet E. Miers, then in her mid-30's, had accomplished what some people take a lifetime to achieve. She was a partner at Locke Purnell Boren Laney & Neely, one of the most prestigious law firms in the South, with an office on the 35th floor of the Republic National Bank Tower in downtown Dallas.

But she still felt something was missing in her life, and it was after a series of long discussions - rambling conversations about family and religion and other matters that typically stretched from early evening into the night - with Nathan L. Hecht, a junior colleague at the law firm, that she made a decision that many of the people around her say changed her life.

"She decided that she wanted faith to be a bigger part of her life," Justice Hecht, who now serves on the Texas Supreme Court, said in an interview. "One evening she called me to her office and said she was ready to make a commitment" to accept Jesus Christ as her savior and be born again, he said. He walked down the hallway from his office to hers, and there amid the legal briefs and court papers, Ms. Miers and Justice Hecht "prayed and talked," he said.

She was baptized not long after that, at the Valley View Christian Church.

It was a pivotal personal transformation for the woman now named for a seat on the United States Supreme Court, not entirely unlike that experienced by President Bush and others in the Texas political and business establishment of that time

Can This Nomination Be Justified?

By George F. Will

Wednesday, October 5, 2005; Page A23

Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption -- perhaps rebuttable but certainly in need of rebutting -- should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's "argument" for her amounts to: Trust me. There is no reason to, for several reasons.


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He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections.

Furthermore, there is no reason to believe that Miers's nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists.

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked -- to ensure a considered response from him, he had been told in advance that he would be asked -- whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, "I agree." Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, "I do."

It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.

The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.

Under the rubric of "diversity" -- nowadays, the first refuge of intellectually disreputable impulses -- the president announced, surely without fathoming the implications, his belief in identity politics and its tawdry corollary, the idea of categorical representation. Identity politics holds that one's essential attributes are genetic, biological, ethnic or chromosomal -- that one's nature and understanding are decisively shaped by race, ethnicity or gender. Categorical representation holds that the interests of a group can be understood, empathized with and represented only by a member of that group.

The crowning absurdity of the president's wallowing in such nonsense is the obvious assumption that the Supreme Court is, like a legislature, an institution of representation. This from a president who, introducing Miers, deplored judges who "legislate from the bench."

Minutes after the president announced the nomination of his friend from Texas, another Texas friend, Robert Jordan, former ambassador to Saudi Arabia, was on Fox News proclaiming what he and, no doubt, the White House that probably enlisted him for advocacy, considered glad and relevant tidings: Miers, Jordan said, has been a victim. She has been, he said contentedly, "discriminated against" because of her gender.

Her victimization was not so severe that it prevented her from becoming the first female president of a Texas law firm as large as hers, president of the State Bar of Texas and a senior White House official. Still, playing the victim card clarified, as much as anything has so far done, her credentials, which are her chromosomes and their supposedly painful consequences. For this we need a conservative president?

The Right to Die

Published: October 5, 2005
The John Roberts Court will hear its first high-profile arguments today, when the justices take up a case involving doctor-assisted suicide. Oregon law allows terminally ill people to take lethal drugs to end their lives. But the Bush administration has tried to override this law by threatening to prosecute doctors involved in such cases. The Supreme Court should make it clear that Oregon can allow doctor-assisted suicide.

Oregonians voted in favor of the Death With Dignity Act in 1994, and three years later they voted against repeal. The Oregon law allows terminally ill people who are likely to die within six months to receive drugs to end their lives. When John Ashcroft, a longtime opponent of assisted suicide, became attorney general in 2001, he issued an edict that doctors who prescribe drugs that are used to commit suicide can be prosecuted under the federal Controlled Substances Act. The state of Oregon and a group of terminally ill patients challenged this Ashcroft directive and won.

This case nominally involves two hot-button issues: the right of terminally ill people to end their lives, and the allocation of power between the federal government and states. But the Court of Appeals was right to resolve it more simply, through a careful interpretation of the Controlled Substances Act. Mr. Ashcroft claimed that the law gave him the power to overrule Oregon's assisted suicide policy. But when Congress passed the act, it clearly intended to prohibit ordinary drug abuse, not to set out a federal policy on assisted suicide.

Opponents of assisted suicide have never been able to persuade Congress to outlaw assisted suicide directly. In the absence of a Congressional law, Mr. Ashcroft had no authority to interfere with the decision of Oregon's voters.

In his zeal to stop assisted suicide, Mr. Ashcroft, a self-described legal conservative, turned his back on two principles that are sacred to legal conservativism. First, he refused to strictly, or even accurately, construe a Congressional statute. Instead, he inserted meaning in it that did not belong there, giving himself power that he should not have had. Second, he ignored conservative dogma about deference to the states, especially on matters like regulating medical practice, a core state concern.

The impact of today's case will be felt beyond Oregon. The Bush administration's position has discouraged other states from enacting assisted suicide laws. But the Supreme Court should make clear that Oregon, and all states, have the right to allow terminally ill people to end their lives with a maximum of dignity and a minimum of pain.