Patterico's Pontifications



Filed under: Judiciary — Patterico @ 11:49 pm

Jeff Goldstein nails it. Just nails it.

I Guess We Don’t Need That Subpoena Now

Filed under: Judiciary — Patterico @ 11:07 pm

Dobson reveals what Rove told him here (h/t/ Erick at Confirm Them).

It’s pretty much what I thought it was — absolutely nothing we didn’t know already:

What did Karl Rove say to me that I knew on Monday that I couldn’t reveal? Well, it’s what we all know now, that Harriet Miers is an Evangelical Christian, that she is from a very conservative church, which is almost universally pro-life, that she had taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion, that she had been a member of the Texas Right to Life.

In light of this, Miers supporters will lose still more credibility if they continue touting Dobson’s endorsement as if it tells us something we didn’t already know.

If I Could Ask Harriet Miers Just One Question at Her Confirmation Hearings

Filed under: Judiciary — Patterico @ 9:12 pm

No, it wouldn’t be “Why, oh why won’t you just withdraw your name from consideration?”

It would be this:

When in your career have you taken an action that you found personally repugnant, but that you were required by law to take?

With John Roberts, we didn’t have to ask. There was already an example out there: the French-fry case. He clearly didn’t like ruling against the little girl arrested for eating a single French fry. But the relevant precedents required it, so he did.

That’s my kind of judge. Once I read the French-fry case, I was more sold than ever on the Roberts nomination.

Would Harriet Miers be that kind of judge? I have no idea.

So that’s the question I’d ask her.

Bill Faith on How Lawyers Decide Things

Filed under: Judiciary — Patterico @ 9:06 pm

Hugh Hewitt favorably cites Ann Althouse today. Althouse says she is “mellowing on Miers,” and offers this explanation:

Why is it not a good thing to have one person on the Court who approaches constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk? Perhaps the Court is harmed by an excess of interest in the theoretical. A solid, experienced lawyer like Miers, with no real background in constitutional law, might look at the text, the precedents, the briefs, and use the standard lawyer’s methods to resolve the problem at hand.

I like Bill Faith’s response:

OK, I’m not a lawyer and maybe I just misunderstand the lawyerly thought process, but I think it goes something like this:

A) Identify desired conclusion (e.g. “client is innocent,” “client has money coming”, etc.)

B) Examine appropriate Codes, Case Law, precedents etc.

C) Construct best possible argument to support conclusion identified in step A)

My concern is that a Justice Miers, lacking solid familiarity with the Constitution, might substitute her personal beliefs, based on nothing more than “I feel sorry for these people” or “What would GWB say?” for step A), and then proceed with steps B) and C). I hope I’m wrong, but I’d feel a lot more comfortable with a nominee with firmly established judicial, not lawyerly, habits.

Yup. And as I pointed out this morning, this A-B-C process was exactly the process used by Lewis Powell (to whom Miers has been compared) to decide how to cast his vote in Roe v. Wade.

Was Powell’s method of reasoning directly and exclusively related to his lack of previous judicial experience, and to his previous experience as a practitioner? Not necessarily. But let’s not pretend that lawyers are more likely than anyone else to bring to the bench a philosophy of fealty to constitutional and statutory text.

One’s performance as a judge can at least provide some indication as to that issue, when (as here) there exists significant doubt.

No, She Didn’t — But She Didn’t Do What Dafydd ab Hugh Said, Either

Filed under: Media Bias — Patterico @ 8:37 pm

Dafydd ab Hugh says:

Despite the newest charge sweeping the blogosphere, Laura Bush did not call Miers opponents “sexist.”

True enough. She said she thought it was “possible.”

If Dafydd had stopped there, I’d have no quarrel with his post. I also applaud him for noting that — contrary to the suggestions of some — Matt Lauer asked the question, and Laura Bush simply responded.

But Dafydd goes further than that, arguing that the news services have completely botched the transcription in a misleading way. And I don’t think they did.


Why Hasn’t This Gotten More Attention?

Filed under: Crime,Media Bias,Politics,Scum — Angry Clam @ 10:15 am

[Posted by The Angry Clam]

Leftist California State Senator Carole Migden pushes the voting button of conservative Republican Assemblyman Guy Houston on one of her pet projects.

Money quote:

It is Aug. 31, and Sen. Migden is lobbying on the Assembly floor for her bill, which would require cosmetics manufacturers to advise the state if their products contain cancer-causing ingredients.

Migden’s presence is typical. Senators routinely troll the Assembly floor like bass tournament boats on Clear Lake.

As the lawmakers vote, the bill comes up one shy of passage and time is running out.

In a bizarre move, the zealous Democratic senator punches a Republican Assemblyman’s yes-vote button.

Houston’s startled seatmate, Southern California GOP Assemblyman Bob Huff, watches as Migden then calls for the vote to close.

Huff swiftly reverses Migden’s action.

And just where is Houston while a Democratic senator appropriates his vote?

He’s in the back of the chamber lobbying the governor’s staff about a couple of his bills.

“Then I looked up and I saw all these goings-on at my desk,” Houston recalls. “I went over and (Huff) started telling me what happened. I couldn’t believe it. I mean, Migden usually pushes my buttons but this takes it to a new level.”

How much do you want to bet that if the participants were reversed, there would have been front page cries for their heads from the SF Chronicle, the LA Times, and the Sacramento Bee for weeks on end?

Lewis Powell: Nice Guy, Terrible Justice

Filed under: Abortion,Constitutional Law,Judiciary — Patterico @ 12:01 am

If you haven’t read the book The Brethren before, and if you are a judicial conservative, then I am probably about to upset you a great deal.

One of the Justices to whom Harriet Miers is most frequently compared is Lewis Powell, due to their lack of previous judicial experience before being nominated to the Court, and their shared qualification of past bar association leadership. I mentioned recently that Eugene Volokh has said that Powell was a “highly regarded” Justice. For the life of me, I don’t have the slightest idea why. And I’d like to quote you two passages from the book The Brethren that help explain why I think Powell was a disaster — and why any comparison of Miers to Powell worries me greatly.

(By the way, anyone interested in the Supreme Court really ought to read The Brethren. It is a book by Bob Woodward and Scott Armstrong about the inner workings of the Supreme Court from 1969 to 1976, based on interviews with more than 170 law clerks and several Supreme Court Justices. No journalists before or since have had the kind of access to Court personnel that Woodward and Armstrong had.)

These passages also help explain the connection that I see between top-notch qualifications and a Justice’s willingness to make result-oriented decisions. If you haven’t read The Brethren before, and if you are a judicial conservative, you’ll read these passages in stunned horror:


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