Patterico's Pontifications

10/12/2005

No More Potter Stewarts!

Filed under: Judiciary — Patterico @ 6:46 am



Hugh Hewitt yesterday:

The first President Bush was, I think, close friends with Justice Potter Stewart, who rose to SCOTUS after four years as a federal judge, and who, notably, retired at the age of 66. Stewart’s opinions were pointed, and usually correct in my view. His job was to get it right, not construct overarching theories. How will Harriet Miers turn out on the SCOTUS? My best guess is a lot like Potter Stewart, in temperment and tone, and in results.

That’s exactly what I’m afraid of. In terms of results, Potter Stewart voted to uphold abortion rights and strike down the death penalty, to name two of his disappointing decisions. In terms of temperament, the way he went about making his decisions was often rooted in pure arrogance.

Here is the story of how Potter Stewart came to concur in Roe v. Wade, from the book The Brethren, at p. 196:

Stewart thought that abortion was one of those constitutional issues that the Court rarely handled well. Yet it was becoming too important to ignore. Abortion was a political issue. Women were coming into their own, as Stewart learned from his daughter Harriet, a strong, independent woman.

As Stewart saw it, abortion was becoming one reasonable solution to population control. Poor people, in particular, were consistently victims of archaic and artificially complicated laws. The public was ready for abortion reform.

Still, these were issues of the very sort that made Stewart uncomfortable. Precisely because of their political nature, the Court should avoid them. But [you knew there was a “but” coming, didn’t you? — Ed.] the state legislatures were always so far behind. Few seemed likely to amend their abortion laws. Much as Stewart disliked the Court’s being involved in this kind of controversy, this was perhaps an instance where it had to be involved.

So: Stewart recognized that this was a political issue. But he had an independent daughter who was teaching him about women’s lib, and the state legislatures were just moving too slow for his personal liking. So, in an act of pure judicial arrogance, Stewart joined the Court’s opinion in Roe v. Wade.

Stewart’s shortcomings are not limited to abortion cases. Stewart is most famous for that quintessential statement of ad hoc judging, saying of pornography: “I know it when I see it.” He also joined an opinion striking down all death penalty laws in the country.

Folks, we don’t need another Potter Stewart, in temperament or in results. This country can’t afford it.

13 Responses to “No More Potter Stewarts!”

  1. Remember the uproar last year from the right side of the blogosphere when Hillary was quoted re: Kerry, “You don’t have to fall in love, you just have to fall in line”?

    Isn’t that exactly what the pro-Miers righties are telling us now?

    Allah (80cc34)

  2. Miers may be designed to force Hillary to 1)vote against a woman on the court, or 2)vote for her and dry up all her fund-raising, since how can she vote for a Bush appointee and then rail against him “tilting the balance of the court”?

    Also, the pick of a woman we could all love would not generate all the publicity that this has. Now EVERY woman in the country has heard that Bush has nominated a woman. If we could just pick up a few percent of the female vote, we could win in ’08.

    I have imagined this scenario; Miers pick forces dems to run a woman, Hillary (duh), Hillary’s nomination forces GOP to go with Condi, Condi’s nomination forces dems to pick Obama as VP, to take back the black vote.

    GOP slogan: if you want to get in the back of the bus, vote for Obama as VP. If you want to drive, vote Condi for Prez.

    bureaucrat (749839)

  3. The Big Bloggers

    He’s fighting a war on two fronts; at home and abroad in the Middle East. Now there are whiffs of mutiny in the air. The Captain Bligh Bloggers are after his hide. Can’t we just give the guy some slack? Can’t we at least wait until…

    Kerfuffles (739a0c)

  4. The Miers Firing Squad

    Many people have also been stating that the White House has been inept in advancing this nominee but I do not see any evidence that the confirmation is in doubt. Bush has made over a hundred nominations over his terms, and EVERY one of them has been …

    Flopping Aces (e54f00)

  5. I don’t think he picked a woman to trick Hillary as much as to appease Laura. If the goal was to pick an un-pickable woman (to the Dems) than a candidate from a clear far right position would have done that, without ticking off the base.

    I don’t think the Meirs pick forces the Dems to do anything but sit back and watch the trouble brew. Are they organized enough to take advantage?

    Did Potter Stewart look at abortion this way to level the field (between the poor and rich) or to make a judgement on abortion?

    ajds (392555)

  6. […] On Tuesday, Hugh Hewitt predicted that a Justice Harriet Miers would be much like the late Justice Potter Stewart. Yikes, the last thing we need is another Potter Stewart. On Wednesday, Patterico explained why. No responses to ‘Hugh Hewitt Predicts Another Potter Stewart’. RSS feed for comments and Trackback URI for ‘Hugh Hewitt Predicts Another Potter Stewart’. […]

    Confirm Them » Hugh Hewitt Predicts Another Potter Stewart (e203ab)

  7. That she is a “born-again Christian” is nice, but totally irrelevant. Give me a conservative atheist or agnostic ahead of a liberal Christian. Jimmy Carter is a “born-again Christian” and we don’t need him or his like on the SCOTUS

    John Harper (608459)

  8. “I Know It When I See It”

    As Patterico shows, Justice Stewart supported non-textual rights [and] embraced judicial legislation. If Harriet’s the reincarnation of Potter, the President broke his promise. Hugh Hewitt’s advocacy is the best evidence yet Hewitt’s wrong.

    No Oil for Pacifists (cea493)

  9. OK, we’ve seen she’s like Powell, she’s like Stewart. Let’s get to the nub of the thing: She’s like Harry Blackmun.

    Only kidding (I hope).

    Attila (Pillage Idiot) (471b7c)

  10. JH:

    Political leanings are just as irrelevant as religious beliefs if a justice is doing what the oath requires. Give me a liberal who’s a judicial conservative and, these days, an “originalist” (it’s been a while since we had the political liberal/judicial conservative combo, but such a thing is possible: Felix Frankfurter and Robert Jackson, to name two; Robert Bork would’ve been one, and maybe it’s not too late for that).

    I don’t want to hear whether the nominee is an evangelical Christian, or a conservative, or a liberal. Mischaracterized “left turns” on the court are not left turns at all; rather, they are predictable applications by justices of the very same judicial philosophy they had when they were appointed — you know, fabricationism. Once a fabricationist always a fabricationist. Only it’s hard for some political conservatives to see it at the same time they’re hoping that one day the constitutional law fabricated by the justices will coincide with their own policy preferences. Just listen to some people who are looking for assurances that Miers is “pro-life.” Don’t you think they’d be popping champagne corks (non-alcoholic, of course) if the Court held that a fetus is a person entitled to equal protection?

    Spotting the warning signs for these supposed left turns is something Hugh Hewitt is just wrong on, imo. The difference between Scalia/Thomas and Souter/Kennedy/O’Connor isn’t that the former spent time in DC on the front lines of the culture war (as did HH — probably why he thinks that’s important) and the latter did not; it’s that the former are originalists and the latter merely fall somewhere within that very broad, variable category known as “conservative.”

    As long as we continue to fall for the “conservative” head-fake, we will continue to be distracted from the meaningful by our focus on the irrelevant, and will therefore continue to be disappointed and unpleasantly surprised.

    TNugent (6128b4)

  11. The President ran from a fight. Now he has his staff trying to make excuses. Hewitt wants to be in with the excuses crowd.

    Stan (226aa9)

  12. […] Patterico had a good post a few months ago, titled, “No More Potter Stewarts.” No responses to ‘Twenty-Five Years Ago Today’. RSS feed for comments and Trackback URI for ‘Twenty-Five Years Ago Today’. […]

    Confirm Them » Twenty-Five Years Ago Today (b78190)


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