Miers' Religious views

[isomin at gmu.edu]

In brief response:

I have read the book on Souter that Howard cites, and I think its evaluation of his pre-1990 record is considerably affected by hindsight bias. 

I agree that what matters is political ideology rather than religion per se. All I'm saying, using the Cuomo example, is that the latter is often a poor guide to the former. 

I highly doubt that Bush was "swinging for the fences" here, at least from a ideological point of view. If he was, he would have nominated someone with better  qualifications and a more clear ideology. Yes, that might have led to the nuclear option, but I don't think that would have hurt Bush too much politically. 

As for Reid, the argument is not necessarily that he knows something Bush doesn't. He might know the exact same thing, but whereas Bush might have been mostly concerned without avoiding political trouble on either flank, Reid may be more concerned with ensuring that O'Connor's seat isn't filled by someone he and his political allies consider too conservative. 

Again, it is certainly quite possible that Miers really is a "stealth conservative" rather than a Souter. But it's far from clear.



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 4:17 pm
Subject: Re: Miers' Religious views

> Rick is thrilled, now that he knows more about Miers' religion 
> affiliations and practices.  Ilya is not sure.  Of course, 
> everyone is guessing, and I suppose the best evidence would be if 
> there was a clear record of judicial decision making one way or 
> the other.  But of course, as Bush understands, a clear judicial 
> record is what would trigger the nuclear option.  The only way to 
> get a conservative Evangelical sensibility on the Court is this 
> way.  
> 
> Ilya notes that Cuomo was personally pro-life but politically pro-
> choice.  Then again, Cuomo had a clear public record as a liberal, 
> and it is a person's political ideology that drives judicial 
> decision making.  It's true that some conservatives vouched for 
> Souter, but at the time all the evidence suggested that he was a 
> moderate New England Republican (cf. Susan Collins, Olympia 
> Snowe), which is what he still is.  (See 
> http://www.amazon.com/gp/product/0195159330/002-3230159-
> 7390402?v=glance&n=283155&n=507846&s=books&v=glance.)  By 
> contrast, Miers is a pro-life Evangelical conservative. 
> 
> It's true she was endorsed by Reid.  Maybe he knows something Bush 
> doesn't know.  Extremely unlikely, of course, but anything is 
> possible.  Still, I don't think it is an accurate assessment of 
> the politics of SC nominations to assume that Bush checked his 
> swing and picked a moderate.  He's swinging for the fences.
> 
> H
> 
> ----- Original Message -----
> From: isomin at gmu.edu
> Date: Wednesday, October 5, 2005 11:52 am
> Subject: Miers' Religious views
> 
> > 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.
> > 
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