Bush, Miers & Judicial Philosophy -- clarifying conservatives' concerns

Rick Duncan nebraskalawprof at yahoo.com
Wed Oct 5 11:12:46 PDT 2005


I think Howard hits the nail on the head. I was disappointed by this nomination until I discovered what church she attends and how active she is within that community.
 
If what I want is a reliable social conservative, I would rather nominate lawyers randomly selected from the missions committees of conservative churches than from the membership list of the Federalist Society. I know several lawyers like that here in Lincoln, men and women who would be 100% pro-life and pro-family. And I would bet my life on it!
 
I think Miers is the best social conservatives could reasonably hope for. That is why Jay and Jim (Sekulow and Dobson) are so pleased. And yet she is difficult to attack, because she has no written record and the Dems can't disqualify her because of the church she attends. 
 
I know many of you think Bush is a dummy, but this is a smart move.
 
Rick Duncan
 


howard gillman <gillman at usc.edu> wrote:
Jason's comment helps me clarify a question I had about the concerns expressed by some conservatives. I've heard two kinds of concerns or complaints:

First, there is the complaint that Bush should not have overlooked more qualified conservative jurists. Here we get a lot of talk about the importance of a well-developed judicial philosophy (as if that's anything other than a stylized reconfiguration of conventional political ideology) and about the sort of background that is appropriate for a Supreme Court justice.

Second, some have said that, because Miers' public record is essentially non-existent, there are concerns that she might not REALLY be conservative.

I wonder what the basis is for the second concern. Is there any question that Miers is a long-practicing pro-life conservative Evangelical? That one of her closest male companions is the most conservative member of the Texas Supreme Court (Nathan L. Hecht)? (See http://www.latimes.com/news/nationworld/nation/la-na-abort5oct05,0,2533282.story?coll=la-home-headlines.) Even if she doesn't have a "judicial philosophy," what are the chances that such a person would "develop" a "judicial philosophy" that was inconsistent with her overall world view? 

In Roberts Bush probably found the most conservative judge who could avoid the nuclear option. Why isn't the Miers nomination an example of Bush identifying the most conservative woman he could find who would also avoid a Democratic filibuster? What other pro-life conservative Evangelicals were pre-approved by Harry Reid?

HG

Howard Gillman
Professor of Political Science, History, and Law
Associate Vice Provost for Research Advancement (Social Sciences)
University of Southern California
Bovard Administration Building, Room 300
Los Angeles, CA 90089-4019
(213) 740-6709, gillman at usc.edu 
http://www.usc.edu/politicalscience/gillman

----- Original Message -----
From: Jason Mazzone 
Date: Wednesday, October 5, 2005 8:36 am
Subject: Bush, Miers & Judicial Philosophy

> Listening to the President’s news conference yesterday I was 
> struck by his
> repeated statements that Miers shares his own “judicial 
> philosophy.” I
> found myself wondering what that means--from the President’s own
> perspective, and trying to be as charitable as possible.
> 
> For example, if the President were asked (without having been told in
> advance how to respond) to identify the elements of that 
> philosophy, to
> apply it to specific legal questions, to name some outcomes with 
> which he
> agrees or disagrees—what would he say? One hint is that the 
> President said
> yesterday that Miers is committed to separation of powers. But 
> what does
> the President expect this to mean in practice—in all of those 
> cases in
> which reasonable people can and do disagree about the right 
> result? The
> President has said in the past he admires Scalia and Thomas. Would the
> President be able to explain (or even name) any cases in which he 
> agreeswith the opinions of either of these two justices? For that 
> matter, is it
> likely that the President would be able to tell us how his judicial
> philosophy would inform constitutional questions—for instance, 
> could he
> explain which protections of the Bill of Rights he considers most
> important, or which provisions of the Constitution the courts have
> misconstrued?
> 
> George Will has a strongly worded Op Ed in the Washington Post 
> complainingthat the President has never thought deeply about 
> constitutional questions
> himself and so doesn’t understand what judges have to do and that 
> Miershas never developed the kinds of tools needed for 
> constitutional analysis.
> If Will is correct, what is left of the “judicial philosophy” that 
> Bushfinds so impressive about Miers? Is there something else that 
> Will’sapproach has missed?
> 
> 
> Jason Mazzone
> Assistant Professor of Law
> Brooklyn Law School
> 250 Joralemon Street
> Brooklyn, NY 11201
> (718) 780-7514 (voice)
> (718) 780-0394 (fax)
> 
> 
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Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  --The Prisoner
		
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