Miers' Religious views

isomin at gmu.edu isomin at gmu.edu
Wed Oct 5 11:52:26 PDT 2005


Prof. Gillman raises some good points, but I don't think they are as probative of Miers' philosophy as he concludes they are.

Yes, Miers is a "long-practicing pro-life evangelical." But there are lots of jurists with pro-life personal views who voted for Roe. Consider the fact Mario Cuomo also has pro-life personal religious views, as for that matter does Harry Reid. But even if Miers' religious views would lead her to vote to overturn Roe, that does not show how she would vote on other crucial issues.

As to her having conservative friends that are willing to vouch for her, the same could also be said of David Souter (vouched for by Sununu and Sen. Humphrey) and Blackmun, among others. 

Finally, the fact that she was preemptively endorsed by Harry Reid also tells against the likelihood of her being highly conservative. Reid would not have given such an endorsement if he (and his advisers)  thought that she would vote like another Scalia or Thomas, perhaps not even if they thought she would be another Rehnquist.

Therefore, we have to conclude that either Reid or the pro-Miers conservatives are wrong in their forecasts of what she is likely to do on the Court. Prof. Gillman implicitly argues that Reid must be wrong. In my view, we simply don't have enough information to be able to tell.

None of this is to say that Miers has been proven to be another Souter. And, unlike in the case of Souter, the president probably DOES know where this nominee stands, thanks to his close association with her. The rest of us, however, do not have the same luxury.



Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/

----- Original Message -----
From: howard gillman <gillman at usc.edu>
Date: Wednesday, October 5, 2005 12:09 pm
Subject: Re: Bush, Miers & Judicial Philosophy -- clarifying conservatives' concerns

> 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 <jason.mazzone at brooklaw.edu>
> 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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Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/


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