MY Vast Right Wing Conspiracy

Key blog quotes about Harriet Miers

• Posted by Beth on October 4th, 2005 filed in Blogs, General, Politics, SCOTUS    

Miers Derangement Syndrome?

Truer words never spoken, in this simple statement:

This may be a moment when the right blogosphere discovers something that our friends on the left have come to terms with (or not) over the last several years - bloggers are not representative of public opinion.

For this, I am thankful–although it’s not exactly a new discovery to me. [Hat tip: Chillin' Mark Coffey]

Quit yer sulking:

Taking the ball and going home because the nominee doesn’t know you by your first name is hardly principle at work, and the refusal to see what she brings to the table isn’t argument. It is entertaining, and also a sort of wish for a return to the days of old when the president was a Democrat and brick throwing made life as a pundit easy.

Process-oriented, or results-oriented? I’m more optimistic about Harriet Miers than fellow Antonin Scalia fan Simon Dodd, but what he said is exactly what I’ve been thinking, but he said it far more clearly. [Via comments at Volokh.]

I think that what is making me uncomfortable is nominees who are more concerned with results than process.

Whether the results a Justice prefers are liberal or conservative, if they think in terms of results rather than process, they’re just another flavor of dead wrong. This is not merely a rhetorical point, but one with real significance for the likely direction of the court. If one favors process, and follows process in a given case to whatever result is compelled by the law and the facts, then process does not really change in time. But, if you favor results, and are in the habit of choosing results and then finding a reason to come out that way, as you change - which, with age, we all inevitably do - the results you prefer may well change.

This, I think, is what happened with Mr. Justice Kennedy: he was a conservative when appointed, but he was a results-oriented conservative, not a process-oriented conservative. As he got older, and spent time in Washington, his proclivities drifted towards the center, thus so did his preferred results. Lacking a firm anchoring in process, he continued to do exactly what he did before: justify results through process, rather than reach results by process. Ditto Ms. Justice O’Connor. This would explain why the process-oriented originalists, Thomas and Scalia, have not disappointed the Presidents who appointed them, and the results-oriented conservatives, Stevens, O’Connor, Kennedy and Souter, have in every instance done exactly that.

To add further example - when I was younger, I was in favor of capital punishment; as I have gotten older (and, I hope, wiser - but if not, at least, wider), I have leaned increasingly towards regarding it as a relic that should be abolished. None-the-less, being an originalist, and being thus process-oriented, I am just as compelled today to the conclusion that capital punishment is constitutional as I was back when I thought it was indisputably a good idea. Perhaps Justice Kennedy had a similar journey to Justice Blackmun. Perhaps Justice Scalia, even, no longer feels the death penalty a good idea - but Justice Scalia at least recognizes that the dictates of his conscience are not to be mistaken for the scope of the constitution. The measure of constitutionality is not the personal preferences of five Justices.

Like I said earlier, I suspect many of pining for an activist (results-oriented) nominee, despite proclamations to the contrary. Judicial activism isn’t confined solely to the left, y’know…there are just more of them. Despite the error of their ways, to their credit, at least they also don’t pretend to be “strict constructionists.”

Must read: The American Thinker - Don’t misunderestimate Miers