Patterico's Pontifications

10/12/2005

Dafydd: Morning In Pattericoland

Filed under: Judiciary,Politics — Dafydd @ 6:18 am



[Posted by Dafydd ab Hugh]

NOTE: This post is NOT by Patterico; it’s by his evil twin, Dafydd. Forewarned is four-alarmed!

In an effort to shift thinking in a more positive direction, bring us together, and try to heal the rift among all us anti-liberals, I propose a hypothetical. So let’s put on our Imagineering Yarmulkes and envision the future….

  1. Harriet Miers is sitting there in the J-Com hearings being grilled like a toasted-cheese sandwich by Ted and Chuck and Pat (Leahy, not -terico). What plausible thing can you imagine her saying that would make you think, “you know, maybe I was wrong about her… maybe she’ll do better on the court than I was afraid she would”?
  2. Harriet Miers has been confirmed and takes her seat. We skip a year, and it’s mid-October 2006. What vote can you plausibly imagine her casting and/or opinion can you plausibly imagine her writing that would cause you to change you mind, breathe a sigh of relief, and say “thank goodness she turned out better than I was afraid she would”?

Remember, please be specific: what particular signs are you looking for that would persuade you that Bush was smarter (or at least less stupid) than you thought when he announced the nomination?

— Dafydd ab Hugh

PATTERICO ANSWERS: I gave this some thought yesterday evening.

The answer to the second question is easier than the first. I will be relieved when either of two things happens:

1) More than ten years have passed, and Justice Miers has proved to be a reliable vote with Scalia and Thomas. (In other words, no saying “I told you so” after the first opinion, or the first year, or even the first five years. UNLESS:)

2) Justice Miers writes an opinion on an issue dear to cultural liberals (including those on the New York Times editorial page), taking a position opposite to that of said liberals, which contains language reminiscent of the flair of an Antonin Scalia. I’m thinking of something like this. If I read such an opinion from a Justice Miers, I won’t be holding my breath waiting for the leftward drift.

I have no real answer to the first question, and that is a large part of why I have already declared my opposition. There are plenty of things I can imagine her saying in an alternate universe — but in this universe, where candidates strive to avoid answering questions, I can’t imagine anything she might realistically say that would change my mind.

19 Responses to “Dafydd: Morning In Pattericoland”

  1. 1. I would like to hear Miers say these exact words in the hearings: The Constitution is NOT a living document.

    2. I would like to see a 2006 opinion in a decision reversing the courts ruling on BCRA with scathing critique of the court for failing to understand the words “Congress shall make no law.”

    Stephen Macklipn (fc20a6)

  2. All this is a prelude. There is one crucial decision that the court must make, before we can consider the constitution back from exile: Wickard must be repudiated. That is what I understood Bush to be promising us, when he said he would appoint justices in the mold of Scalia and Thomas. If Miers will not vote to overturn Wickard then we have been betrayed. And I see no reason to believe that she will, or that Bush wants her to.

    Milhouse (3f7ff6)

  3. I love that Scalia dissent. With Miers, I’d settle for a “9 people picked at random from the Kansas City telephone directory” quip, to let us know she doesn’t share the judicial arrogance of Potter Stewart or Stenberg.

    Bench (7df803)

  4. How about this for #1: “Thank you for that question, Senator Kennedy, but before I answer, would you mind me asking if you still drive that soggy Oldsmobile?”

    Old Coot (2f7b84)

  5. I’m not so concerned about her votes as I am about her ability to center her thinking in the Constitution. Penumbra and eminations, even on the conservative side, are wrong.

    The bottom line is that most of us have worked for Bush, even though we had issues with him, so that the court would be filled with people who would read the black part of the text and not just add notes to the margins. This is a pretty poor pay-off. I want someone with a track record of being subservient to the text. Even if she’s conservative (a big if), there’s no guarantee her votes will be based on the document.

    Kevin Murphy (6a7945)

  6. Milhouse:

    Yeah but Scalia wasn’t all too keen on repudiating Wickard when he had the chance in Raich, so maybe we’ll have to amend it to “justices in the mold of . . . Thomas.”

    Christopher Cross (354863)

  7. I reviewed my post and corrected it. No excuse for it. My apology.

    Don Surber (f7ace7)

  8. My opposition is based on my belief that Presidents should not be appointing their personal attorneys to the Supreme Court. So there is little Miers can do to change my mind. Even if she turned out to be an excellent justice I fear the precedent established would be harmful to the nation in the long run.

    James B. Shearer (fc887e)

  9. I reviewed my post and corrected it. No excuse for it. My apology.

    I appreciate that, Don. I see lying old Dan Riehl came on your site and called me a Malkin toady and sycophant. Hard to believe that guy wouldn’t want to let that issue drop, since he came out of it looking so bad.

    Patterico (fb7897)

  10. Some folks just don’t know when to leave bad enough alone.

    Xrlq (e2795d)

  11. Patterico:

    2) Justice Miers writes an opinion on an issue dear to cultural liberals (including those on the New York Times editorial page), taking a position opposite to that of said liberals, which contains language reminiscent of the flair of an Antonin Scalia.

    In addition to partial-birth abortion, can you name a few other such “issue[s] dear to cultural liberals” that you have in mind? After all, the more you give us, the greater the chance that such a case will happen to come before the Court in time to be decided by, say, the 2006 elections — thus the greater the chance we’ll know by then whether to feel better or worse about the Miers nomination.

    (Or is it already too late? I don’t know how long the Court takes to issue a ruling after oral arguments.)

    Milhouse:

    Is Wickard the case where the Court ruled that wheat grown for the farmer’s own consumption nevertheless fell under the jurisdiction of the “interstate commerce” grant of powers to Congress?

    (That is, the point at which the very concept of interstate commerce jumped the shark.)

    Please, for those of us who are not attorneys, can folks who cite important cases — with the except of Roe v. Wade! — please include a line describing the principle at issue?

    Thanks!

    Dafydd

    Dafydd (f8a7be)

  12. How about Ayotte v. Planned Parenthood? If (by some miracle) she gets on the court by Thanksgiving, she’ll get to hear that case (scheduled for 11/30/05) and be on the record regarding abortion. That’s the obvious example that comes to mind.

    Watchman (ee9fe2)

  13. Watchman:

    Arrrrgh! Watchman, can you please tell us what the issue is in Ayotte v. Planned Parenthood? As a general rule, lots and lots of Patterico’s readers are actually not lawyers, and we don’t have access to law libraries to look up cases. And we don’t want to wade through tons of legal briefs to find out (only a lawyer would call a 96-page document a “brief!”)

    The non-legal world thanks you….

    Dafydd

    Dafydd (f8a7be)

  14. Parental notification case, dealing with 1) whether a health exception is required, and 2) the appropriate standard of review in an abortion case.

    Patterico (4e4b70)

  15. Both questions are constructed so that the only answer I can give is “Nothing” and “Nothing”

    1. The impropriety of the nomination is the essense of all its faults. Those don’t go away by uttering so scripted lines, no matter what they are.

    2. It’s not just the vote, its the argument that (hopefully) results in the vote.

    Prinicples matter and in the long run, principles and integrity is the only thing of value here. She has none on both counts.

    Let’s not be fools.

    Paul Deignan (9e57a7)

  16. Concerning the first challenge:

    “Senator, I think that the 9th and 10th Amendments are clear. The federal government is meant to be constrained while it is the People who are at liberty.”

    I’d love it even more if she would respond further this way– “Senator, I’m trying to say that there are a great many cases brought to the federal courts that should not be. There is a limit to federal jurisdiction– and to the ordained and established powers of the Federal government.”

    Here’s another thing she could even more plausibly say– “There’s nothing wrong with overturning a precedent if the case was originally decided wrongly. The Supreme Court utters Opinions, not the Word of God.”

    Or this– “Senator, the People are free to Amend the Constitution by the means provided in that document. Justices simply utter an Opinion concerning, and based on, the current text.”

    Lloyd Daub (698ec8)

  17. Kevin Murphy wrote:

    I’m not so concerned about her votes as I am about her ability to center her thinking in the Constitution. Penumbra and eminations, even on the conservative side, are wrong.

    The bottom line is that most of us have worked for Bush, even though we had issues with him, so that the court would be filled with people who would read the black part of the text and not just add notes to the margins. This is a pretty poor pay-off. I want someone with a track record of being subservient to the text. Even if she’s conservative (a big if), there’s no guarantee her votes will be based on the document.

    It seems to me that it has been the jurists of long-standing, the people who have been used to having to justify some opinion that isn’t quite in line with what Mr Murphy called “the black part of the text,” that have discovered penumbrae and their emanations.

    One of the problems, it seems to me, is that in selecting an appellate court judge, as so many here seem to advocate, is that such a selection would entail picking a jurist who has been dealing with penumbrae and emanations for years, and has gotten used to them. Such judges have been restricted by past Supreme Court decisions, and even if they would never have seen a penumbra (a surrounding or adjoining region in which something exists in a lesser degree; a fringe) themselves, they have had to deal with the penumbrae past justices have told them exist. One wonders just how shocking an appellate court jurist could now find such an argument.

    Dana R. Pico (8d0335)

  18. It would be interesting to see how many of the conservatives who have derided Miss Miers as not qualified for the Supreme Court would jump on the bandwagon to confirm her if she uttered the statements suggested by Mr. Daub in Comment #16! I’d bet that even the Disaffected Mollusk would leap to her defense!

    Of course, then she’d be rejected, by a huge margin: she’d lose all 44 Democratic votes, and a good half of the Republican ones, and quite probably never even make it out of the Judiciary Committee.

    Dana R. Pico (8d0335)

  19. I thank our esteemed host for linking Justice Scalia’s dissent in Stenberg; I had not read it before, and it is brilliant.

    One wonders whether Miss Miers would ever be capable of producing such an opinion; given the rarity of such documents coming from the Court (even in dissent), it would certainly be unexpected. But by virtue of Miss Miers not having been a judge previously, I have some hope that she might see more value in what Justice Scalia wrote than did Justice O’Connor or Justice Stevens, for that dissent appeals more to common sense and decency than it ever appeals to the law.

    Dana R. Pico (8d0335)


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