Miers

[Scarberry, Mark]

There was more to the speech that troubled some observers - particularly
those who were looking for evidence that Ms. Miers would not "legislate from
the bench." For example, she stated, "Legislating religion or morality we
gave up on a long time ago." See
http://www.washingtonpost.com/wp-srv/nation/documents/miers/EWDSpeech.pdf
<http://www.washingtonpost.com/wp-srv/nation/documents/miers/EWDSpeech.pdf>
. Certainly we don't want to "legislate religion," but, as others have
noted, most legislation has (or should have) a moral base. This led some
observers to believe that she might apply substantive due process to strike
down laws that she thought were instances of legislating morality. I was not
sure what she meant, and it's possible that she could have cleared it all up
during the hearings. (I hoped she would do well at the hearings, and I
expressed the view that she would likely be confirmed and would be a good
Justice.) But it eroded her positive support, which was not that strong to
begin with, and made some observers question whether the President had kept
his promise to nominate a justice who would be similar to Justices Scalia
and Thomas. It is hard to imagine either of them suggesting that it is
improper to base legislation on morals. It is hard to imagine the President
suggesting that. And thus it became less clear that the President really
knew Ms. Miers's legal philosophy. For a nomination based in some
substantial part on a "trust the President because he knows her well"
argument, this was particularly damaging.

 

Some of Ms. Miers's critics did not treat her fairly and did not give her
the credit she deserved for having a distinguished career in private
practice. But some of her supporters did not treat her critics fairly,
either, with loose charges of sexism and elitism. The whole process was
handled poorly by the White House. Ms. Miers deserves great credit for doing
what she though was right in withdrawing and giving up what was at least a
substantial chance that she would be confirmed to the Court.

 

Mark S. Scarberry

Pepperdine University School of Law

 

-----Original Message-----
From: DavidEBernstein at aol.com [mailto:DavidEBernstein at aol.com] 
Sent: Friday, October 28, 2005 11:35 AM
To: hendersl at ix.netcom.com; conlawprof at lists.ucla.edu
Subject: Re: Miers

 

It does strike me, though, that the loss of support from Dobson and CWA was
more along the lines of "straw that broke the camel's back" and that if the
non-evangelical wing of conservatism hadn't been so vigorously opposed, the
evangelicals would have remained silent and hoped for the best.  I'm amazed
that (according to the Washington Post) Karl Rove apparently thought that
getting James Dobson on Miers' side would guarantee her confirmation.

 

In a message dated 10/28/2005 2:29:41 PM Eastern Standard Time,
hendersl at ix.netcom.com writes:


To: DavidEBernstein at aol.com 
Subject: Re: Miers 




Dobson was assured she would go the right way on *Roe*.  Same for some other
Christian conservative leaders.  (Sekulow too). Some anti-choice  Senators
were anxious abut her position on *Roe* and unsatisfied with her interview
remarks. Others were waiting for the hearings and unsure.   It wasn't until
her speech on "self determination" surfaced that she lost support from
Dobson, Concerned Women for America, etc. 

Best

Lynne

 

David E. Bernstein
Visiting Professor
University of Michigan School of Law
Professor
George Mason University School of Law
http://mason.gmu.edu/~dbernste

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