Miers

[Volokh, Eugene]

	Actually, on some of the social issues -- for instance, likely
including some but not all abortion restrictions -- conservatives are a
*majority* that lacks the power to amend the constitution, because such
an amendment would require a supermajority.  On other issues, they are a
minority on a nationwide basis but a majority in certain states, which
they believe should be enough, under our federalist scheme, to allow
them to implement their views in those states.

	Moreover, many conservatives *have* complained about the Bush
administration's spending habits, and many (though often a different
set) have disagreed with the Administration on Iraq.  I realize that
this is continuing an off-topic tangent, but I wanted to correct the
record on this.

	Finally, a broader point:  I wonder whether broad
generalizations about what conservatives are, want, or object to are
terribly helpful here, or particularly likely to be accurate.  Such
generalizations may well be on-topic, if they touch on constitutional
law; I just doubt that they're likely to produce any real enlightenment.

	Eugene

Miguel Schor writes:

> I think the interesting aspect of Miers's resignation is not 
> who will be 
> named next (even if that undoubtedly will be the topic of 
> this list serv 
> for quite some time) but what it says about the modern conservative 
> movement.  Conservatives once stood for a smaller government, 
> a balanced 
> budget, and a distrust of expensive foreign entanglements 
> that involved 
> exporting democracy.  George Bush has stood all these principles on 
> their head and no conservative has complained (unless taking 
> money from 
> the poor to pay for Katrina relief efforts counts as principled 
> conservatism which I suspect it does).  What really matters to 
> conservatives is quite obviously a litmus test for judicial 
> appointments 
> because they are a minority that lacks the power to amend the 
> constitution or for that matter to convince the nation to adopt their 
> views on key social issues in a more reasoned fashion.
> Assuming that Bush names a more ideologically pure nominee 
> for the high 
> court, the interesting question will be whether the Court in the 
> "exercise of raw judicial power" will seek to do what the 
> conservative 
> movement cannot do using the democratic processes.  I rather 
> doubt (and 
> certainly hope) that it does not.  Miguel
> 
> Rick Duncan wrote:
> 
> > I think /Roe/ *is* on my list, Marci. /Roe/ is a SDP decision of the
> > first order, an "exercise of raw judicial power."
> >  
> > I don't think it is being a "true conservative" to refuse to enforce
> > the Free Exercise Clause against laws (including generally 
> applicable 
> > laws) which do indeed prohibit and restrict the free exercise of 
> > religion. But if this makes me and Mike (and ADF's Alan Sears and 
> > ACLJ's Jay Sekulow) liberals, than I am a proud liberal, a proud 
> > defender of the First Freedom. But please tell the MSM to 
> stop calling 
> > us the "far right."
> >  
> > By the way, if the 14th Amendment provided "nor shall any state
> > prohibit abortion prior to fetal viability," I  would be 
> working for a 
> > Human Life Amendment to the Constitution, but I would not 
> argue that 
> > the Court should refrain from protecting the explicit liberty of 
> > abortion. A judicial activist is a judge who substitutes his 
> > preferences for those of the written Constitution. Both the /Roe 
> > /Court and the /Smith/ Court practiced judicial activism.
> >  
> > Rick Duncan
> >
> >
> > */Hamilton02 at aol.com/* wrote:
> >
> >     It's interesting McConnell is not being defended here on
> >     federalism principles, which is as it should be.  His public
> >     stance against Roe v. Wade is also not in this list, which is
> >     interesting.
> >      
> >     "Most social conservatives," when they come to 
> understand that is
> >     meant by the likes of RFRA and Brennan's approach to 
> free exercise
> >     issues, do not think Smith is wrong.  Conservatives, in general,
> >     have a strong regard for (1) the rule of law and (2) 
> the capacity
> >     of the legislative process to set social policy, like 
> exemptions. 
> >     If you ask a conservative if he or she  thinks that religious
> >     organizations or individuals should have to obey neutrally,
> >     generally applicable laws, the invariable answer is "yes."
> >      
> >     Scalia, Rehnquist, and Kennedy are the true conservatives on the
> >     Free Exercise Clause.  On these issues, McConnell is joining
> >     Brennan, O'Connor, Breyer, and the liberal con law professors. 
> >     That is why so many jumped at the opportunity to support him for
> >     the court of appeals.   His instincts are liberal. 
> >      
> >     How does one square RFRA with a view that judges should not set
> >     social policy from the bench?  It's okay in the 
> religion context,
> >     but it's not okay in the privacy context?
> >      
> >     Marci
> >      
> >     In a message dated 10/28/2005 10:27:52 A.M. Eastern 
> Standard Time,
> >     nebraskalawprof at yahoo.com writes:
> >
> >         1. He is no friend of Substantive Due Process, 
> whether of the
> >         /Lochner/ or the /Lawrence/ strain. He will not 
> impose his own
> >         list of "fundamental" liberties to strike down laws duly
> >         enacted by state legislatures. He knows that the Due Process
> >         Clause codifies neither Mr. Herbert Spencer's Social Statics
> >         nor the Kama Sutra.
> >          
> >         2. Scalia's views about free exercise (he thinks it doesn't
> >         exist) are not the views of most social 
> conservatives. /Smith/
> >         is wrong and Michael knows it is wrong.
> >          
> >         3. Michael is also a strong supporter of the Free Speech
> >         Clause, including the right to equal funding 
> (/Rosenberger and
> >         /Davey) and to expressive association (/Dale/).
> >          
> >
> >      
> >
> >
> >
> > 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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