Monday, October 10, 2005 :::
This Harriet Miers thing is too weird. A lot of the right is concerned with her qualifications and path to the nomination and her potential for moving to the left on the court. The portion of the right that supports her is doing so largely because she's an evangelical Christian. I.e., that portion of the right which one would think most averse to anyone who isn't clearly conservative is the source of her support. The administration, meanwhile, seems to have picked her at least in part because Harry Reid was okay with her. And the evangelical Christian base didn't come on its own, but was expressly courted.
My head hurts.
Taranto brings up something I've never really understood:Does anyone else detect a whiff of sexism in some of the defenses of the Miers nomination? "I'll make a prediction for you," Richard Land of the Southern Baptist Convention, offered yesterday on "Meet the Press": "When she's confirmed, over the next five years, she and John Roberts will disagree about 1% of the time." He was so proud of this prediction that he repeated it later in the show.
Is Land suggesting that Miers, who would be the most junior member of the court and who has never served as a judge, will be such an intellectual force that she would persuade the chief to vote her way 99% of the time? Unlikely. Rather, Land seems to be casting Miers in a submissive role, as a sort of Stepford justice.
It is, as we noted Friday, reminiscent of the left's racist caricature of Clarence Thomas as Antonin Scalia's puppet. As this [PDF -SJ] chart shows, Thomas and Scalia were in full agreement in only 68% of cases in the 2004-05 term; the two justices who most often agreed fully, William Rehnquist and Anthony Kennedy, did so 77% of the time. I can see why it would be insulting to say that two fiction-writers write exactly alike. But in the case of two judges, isn't it ideal that they agree on what the law is? Ideally, you don't just want it to be predictable that they vote alike, you want the direction they both vote in to be predictable. In the real world, there are going to be some ambiguities, but if we can know ahead of time how those are going to be resolved, shouldn't we welcome that?
And I like to believe that this could happen without one judge always turning to the other and asking, "well, boss, what'll it be?" I like to think that, if Miers and Roberts vote the same way, it's because they'll turn to each other simultaneously and say, "well, obviously petitioner is full of crap." As it happens, Thomas and Scalia don't always vote together — sometimes Scalia gets one wrong — but even if it were true, I don't understand why this is the biggest insult one can come up with.
It's certainly less contemptible than, say, voting one way on affirmative action for Gratz and the other way for Grutter (as O'Connor did), or finely distinguishing between Ten-Commandments displays (like Breyer). It is a compliment to tell a mystery writer, "that's very original — I had no idea how it would turn out!" It should not be a compliment to a Supreme Court Justice.
::: posted by Steven at 8:39 PM
|
