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Gods v. Geeks:
Is the conservative opposition to Miers mostly the work of a few whiny Beltway intellectuals? Over at Slate, John Dickerson tries to make that case:
  The debate within the Republican Party over Harriet Miers has quickly devolved into a simple question: Is the nominee qualified because of her religious faith, or unqualified by her lack of intellectual heft? On the one side, James Dobson, Miers' fellow parishioners at Valley View Christian Church, and President Bush speak for her heart. On the other, George Will and William Kristol and others who swooned for John Roberts decry her unimpressive legal mind.
  In this battle, the White House has clearly sided with the churchgoing masses against the Republican Party's own whiny Beltway intellectuals. The Bushies have always mistrusted their own bow-tied secularists, but the rift has never before been so public.
  This is a very provocative picture, but I don't think it's an accurate one. It's true that different factions of the GOP have different concerns, and focus on different questions. It's also true that lots of conservative intellectuals have either objected to the Miers nomination or been noncommittal. But my sense is that such reactions are relatively widespread on the right, including the likes of Rick Santorum, Rush Limbaugh, Gary Bauer, Pat Buchanan, and Phyllis Schlafly. If the members of this group count as "bow-tied secularists," then that's news to me. Dickerson focuses on James Dobson, and presents him as an enthusiastic Miers supporter. But Dobson's half-hour radio show on the Miers nomination Wednesday (summary here) indicates that Dobson is considerably more conflicted than Dickerson suggests.

  Of course, whether this discomfort will amount to anything -- and whether it is justified -- remains to be seen. But I don't think it's accurate to suggest that it's limited to a small group of commentators. Hat tip: Howard.
Bill Dyer (mail) (www):
I certainly agree that the concerns aren't limited to a small group of commentators. There's also the problem that some who are merely skeptical express that skepticism by floating attacks (which they may eventually back off, not that that will keep dKos and the likes of Chuck Schumer from continuing to quote them with glee). I don't think it's elitism per se in every case, although it sometimes clearly is, and even in those cases I don't think it's malicious elitism. In almost every instance I've seen so far of criticism or reservations, they come from folks whose hearts are in the right place, who are sincere, who appreciate the big-picture importance of these nominations to the future of the Republic.

Rather, I think quite a bit of the early opposition, or just reservations, has come from people who (a) aren't familiar with Harriet Miers' credentials, (b) have been factually misled about them, (c) don't have an appropriate context to appreciate the proper value of her credentials (e.g., being a managing partner of a major firm, being president of apolitical local and state bars, being a top student at a less-than-national law school, holding an out-of-the-limelight but incredibly responsible position like Counsel to the POTUS); and/or (d) were emotionally invested in another candidate or set of candidates.

People have been talking about McConnell and Luttig et al. for months, and they're from the class of candidates from whom most recent (going back 30 years) nominees have been drawn, i.e., circuit judges, professors, or professors-turned-circuit judges.

I genuinely believe that any nominee who'd spent most of his/her career in private practice -- no matter where or how successfully -- was going to draw these brickbats. Evaluating someone like that, of whom there are concededly many thousands and tens of thousands more potential candidates (although less than one hand's worth with respect to whom the present POTUS has both personal knowledge and great confidence), requires us to use some badly atrophied mental muscles. There hasn't been a nominee like this one since Lewis Powell in 1972.

Some of the problem will resolve itself as more accurate, specific, factual information filters through the various information channels (MSM, blogosphere, whatever). Some nerves will be calmed if Ms. Miers, as I expect, acquits herself well in her confirmation hearings. (I expect that she'll be quite good, although almost no one in the universe could rationally be expected to do as well as oral-argument-honed John Roberts; still, against the likes of Joe Biden, I expect Ms. Miers to kick ass and take names.) If you'll recall, there was MASSIVE insecurity on the first day or two after John Roberts was nominated. Two months later, and all we can seem to recall is that he's always walked on water and been able to multiply the fishes and the loaves.
10.6.2005 4:30am
Challenge:
Speaking for myself, I am angry we got another blank slate nominee. It doesn't help she does not compare well to Roberts (at least superficially, though I think substantively as well, despite Beldar's excellent points).

I think people thought Roberts was chosen because it was O'Connor's seat (originally), so they gave the White House a pass. Conservatives expected a known quantity for the President's second pick and we didn't get it. That is the primary issue for me. Another blank slate is unacceptable.

But I think it's important we get a jurist who can be persuasive, who can affect the legal culture and move it to the right and not just the Court's jurisprudence. I don't care that Miers went to SMU (actually, for me, it's a plus) or ran the state lottery (what is, exactly, with that criticism?), but I want to see evidence she is well-reasoned and can write well. I want her to represent originalism in good form, not embarrass it. I am not saying she will, but her type of experience does not necessarily lend itself to drafting persuasive constitutional law. The Supreme Court is sort of a battle ground for legal philosophy, are conservatives wrong to demand a proven warrior?
10.6.2005 4:46am
Chetly Zarko (mail) (www):
Statistically and pragmatically in the current environment, its not likely that the Democrats can obstruct two candidates in a row and the same is true in reverse (that of confirming two in a row). I wonder if Bush reasoned that the big fight would be on number 2, his best chance to was nominate someone he knew personally but had little record, and that if he failed he'd be more free to go harder right, perhaps without "having" to nominate a woman, on try number three. The Dems are really boxed in on this - if they fight hard now and win, they don't know what they'll get on round three (which is still their current situation).

That is: is Miers sort of a quasi-sacrificial lamb?
10.6.2005 5:53am
Medis:
I also think the opposition to Miers occurs throughout the Republican/conservative "base". I think Challenge is representative: even non-bow-tie-wearers are worried about Miers being "another Souter," and they also see this as a lost opportunity to put not just a conservative VOTE on the Court, but rather a conservative LEADER. And although it rarely gets top billing, I think a lot of people don't like her age.

BTW, I think Bill Dyer is very wrong. The people criticizing Miers' lack of experience are often very well-informed about her various positions. The precise problem is that they understand things like that being a Managing Partner of a large law firm these days is more representative of business skills than legal acumen. Or that while (briefly) being White House Counsel demonstrates that the person enjoyed the trust of the President, it is not equivalent to heading a law enforcement agency or the Office of Legal Counsel.

I also think that Dyer's claim that anyone from private practice would face the same criticism is largely refuted by the example of John Roberts. Roberts had a brief time as a COA judge, but he was most noted as a Supreme Court litigator. If a similarly-accomplished Supreme Court litigator had been nominated--say, someone like Maureen Mahoney--I doubt she would have drawn this criticism.

I even think that someone known as one of the top few trial attorneys in the country (eg, someone like Powell or Hughes) would have faired better, although with the explosion in litigation over the decades, it is obviously harder now to distinguish among trial attorneys. Regardless, although successful, I have heard no one claim that Miers was one of the top few trial attorneys in the country, let alone one of the top few Supreme Court litigators (like Roberts).

To be fair, Roberts also spent time in the SG's office, so he wasn't purely in "private" practice. But neither was Miers. Again, it is the contrast which is so fatal: both Miers' government experience and her private practice are so much less relevant and less distinguished than Roberts'.

So, it is not that Miers spent much of her career in private practice per se--it is that her career in private practice was not particularly relevant, and not sufficiently distinguished, to differentiate her from hundreds and maybe thousands of other lawyers. And it is not that people do not understand the job of White House Counsel--rather, it is that they understand all to well what that job implies about her relationship with the President.

In short, the problem is we all know the answer to the question: what differentiated Miers from the hundreds, and probably thousands, of similarly accomplished trial attorneys? Answer: her loyalty to the President--and that is cronyism.
10.6.2005 8:36am
A. Friend:
I thought that the role of the Republicans' ideal judge is only to "strictly interpet" the Constitution, and that personal beliefs and religious preference weren't supposed to have anything at all to do with that. Guess I was wrong.
10.6.2005 8:38am
Medis:
Oops, I meant Brandeis, not Hughes. Hughes, of course, was a noted litigator, but also a Governor of New York, an independent qualification for the Supreme Court. If Miers had held such a top elected position (eg, like the many Governors and Senators who have become Justices), I again think people would not be criticizing her lack of qualifications.
10.6.2005 8:42am
Dan Levine (mail):
Can we agree that all of Miers's supposed virtues--"understanding real people" (Cornyn), having been the first woman to do X, Y, and Z, not being from a top law school, and having run a non-national law firm--are completely inconsistent with originalism, textualism and, as the President likes to say, "strict constructionism?" That is what is most shocking about this nomination--that this woman's attributes offer no promise to bring about any of the long-term changes in the court that the President allegedly wants.

So-called conservative developments in the law--including substantive changes that the Republican base supports--have not come on the back of intellectual lightweights. Consider Bork, Easterbrook, and Scalia's roles in pushing textualism; McConnell's role in First Amendment jurisprudence; or Posner's role in Antitrust thought. Miers not only offers no likelihood of elevating the Court's level of intelligence, thoughtfulness, or seriousness to legal issues that are not obviously partisan; she offers no likelihood of creating enduring doctrine that will promote the President's partisan agenda.
10.6.2005 10:14am
Medis:
Dan,

I agree, with one caveat: I think it is pretty clear that the President has not adopted his party's agenda as his own agenda. And that, of course, it what is making such a large cross-section of the party mad.
10.6.2005 10:41am
Dan Levine (mail):
Medis,
Yes, I guess that it's unclear. The President may be claiming to believe in originalism--and to have sought a nominee "in the mold of S and T," when in fact all he was looking for was a result-oriented judge, a judge whose personal experience or social histories would inform her decisions.
Or he may think, most troublingly, that her personal history--of faith, of self-reliance, of hard work--is what will make her a good originalist. [This evokes Sunstein's notion of judicial "fundamentalism"-approaching the Constitution literally, as some (including, perhaps, Miers) approach religious texts]. What Bush is too ignorant to realize--and too arrogant to realize that he doesn't realize--is that it ain't that simple. It takes a serious constitutional scholar to be a good originalist. It takes a McConnell thinking about the equal protection clause, or Barnett thinking about the Ninth Amendment. It requires thought and study, not just the ability to read.
10.6.2005 11:38am
Thorley Winston (mail) (www):

I'm sure Miers is a nice person and a good lawyer. But that is not good enough. The arguments in favor of Miers seem to resemble those in favor of Harrold Carswell in 1970: ""Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?" - U.S. Senator Roman Hruska. The argument didn't work for Carswell, and it shouldn't work for Miers.


Oh please, Harrold Carswell was rejected by the Senate because he turned out to be a White Supremacist who supported segregation in a post-Brown world leading to a 58 percent reversal rate.

Unless you're trying to imply that Miers has a white sheet and hood in her closet, this analogy is somewhere between despicable and laughable.
10.6.2005 11:46am
Bezuhov (mail):
"I agree, with one caveat: I think it is pretty clear that the President has not adopted his party's agenda as his own agenda. And that, of course, it what is making such a large cross-section of the party mad."

O baloney.

Show of hands of how many here have won multiple elections to the highest office in the land. Surely THAT counts as a credential of some import. If your main concern is fidelity to the text of the constitution, know that Bush is intimately familiar with similar issues regarding fidelity to the text of the Bible, as he knows this nominee is as well. See:

http://www.worldmagblog.com/blog/archives/018817.html
10.6.2005 12:32pm
Bezuhov (mail):
"What Bush is too ignorant to realize--and too arrogant to realize that he doesn't realize--is that it ain't that simple. It takes a serious constitutional scholar to be a good originalist. It takes a McConnell thinking about the equal protection clause, or Barnett thinking about the Ninth Amendment. It requires thought and study, not just the ability to read."

In fact, for a Supreme Court justice, it takes a vote, preferably five altogether. This Supreme Court already has enough chiefs, perhaps an indian or too might be just the thing it needs.
10.6.2005 12:37pm
unhyphenatedconservative (mail):
A. Friend,
I highly agree with you. I am an evangelical but do not find that an impressive resume point in a Justice. Someone whose judicial philosophy encompasses importing their personal views of the Bible into Constitutional interpretation is at risk for being convinced by other Justices that foreign legal materials are also useful in interpreting the American Consstitution.

Bezhuv,
Could Bush's election wins not just as easily be explained by the opposition party's decision to run candidates fairly well guaranteed to alienate large portions of the population. Let's be honest. Does "I beat John Kerry" really make a ringing endorsement of someone's political acumen?

As to Bush's fidelity to the Constitution, I have two words for you: McCain-Feingold.
10.6.2005 12:54pm
SimonD (www):
There's an intereting line in that article, about the President's promise to appoint another Scalia. I look at Scalia and I see an originalist, a textualist, a conservative and an intellectual; to even compare Harriet Miers to Nino is insulting, because there is no evidence she is any of those things, other than a conservative. But the slate article makes the point that other people look at Scalia and see a conservative and a Christian; if that is really all those people see when they look at Scalia, then Bush has indeed made good on his promise, by appointing a conservative Christian.

I've made a similar point before, although I phrased it more the way that Dan did.
10.6.2005 1:21pm
SimonD (www):
In fact, for a Supreme Court justice, it takes a vote, preferably five altogether. This Supreme Court already has enough chiefs, perhaps an indian or too might be just the thing it needs.
If you really believe that, with due respect, I think the best thing you can contribute to this debate is silence. Are you really seeking to argue that because there are plenty of geniuses on the Supreme Court that a mediocrity might help? It's like the Revenge of Senator Hruska or something.
10.6.2005 1:24pm
Silicon Valley Jim:
I've been a strong supporter of the President all along, and this nomination disappoints me. I think that it's the combination of nominating a long-time associate and friend and nominating somebody whose qualifications, while not negligible, aren't as stellar as those of, to take the most recent example, John Roberts. One or the other of those things wouldn't have bothered me much, if at all. If, for example, John Roberts had been a long-time associate and friend, that would have been fine. If Harriet Miers had no personal connection with George W. Bush, that would have been fine with me, as well; I think that her credentials are, if not on the Roberts level, good enough. She is definitely not a mediocrity.
10.6.2005 1:50pm
Attila (Pillage Idiot) (mail) (www):
Bill Kristol doesn't wear bow-ties, number one, nor do I.

Number two, despite John Roberts's stellar credentials, a lot of us were and are uncomfortable with his nomination. The Reagan-era memos helped a little, but it's silly to suggest that people who are upset with the Miers nomination are upset because she lacks Ivy League credentials -- except for those critics who say so.
10.6.2005 2:04pm
SimonD (www):
I love this cartoon this morning.

It has to make you wonder, doesn't it, if Nino feels a little insulted; a little like picking up the phone and saying "George, this nomination doesn't say much of your opinion of me."
10.6.2005 2:28pm
Houston Lawyer:
Conservatives have been girding their loins for an all out war with Senate Democrats ever since Robert Bork was shot down. Since Justice Rehnquist died, we have donned our chainmail, armor and spiked gloves, ready to follow our chosen nominee into no-holds-barred bloody battle. Our nominee was promised to be a legendary figure, well known for heroic deeds done in battles past.

When the day for battle arives, we are told that the game to be played is flag football and that our chosen nominee led her intramural team in college to more than one campus championship. Be glad, we are told, the other team will never touch her. And we've partied with her before and we believe she's one of us.
10.6.2005 2:59pm
David M. Nieporent (www):
I agree with Medis in his rebuttal to Bill Dyer. The problem isn't that people haven't read or don't understand Miers' resume; the problem is that people who have don't think it's the right resume for this job. Bill is impressed by things that don't impress me in a nominee for the Court. I don't care whether she headed a bar association or spent two years on the city council. That can go on the plaque she receives at her retirement dinner. It doesn't say anything about her approach to jurisprudence -- if any. Managing a large firm may say something about her business (or interpersonal) skills, but little about her lawyering and nothing about her judging.


The other problem is that even if Miers turns out to be someone in the mold of Scalia or Thomas, this pick is insulting because she's a stealth pick. I'm not the first person to point this out, but it bears repeating: her selection sends the message to every conservative or libertarian out there that the way to be selected for the court, even with a Republican president and court, is to hide your views from the very beginning of your career. Don't join the Federalist Society, don't publish any substantive papers or give any speeches expressing any view on any controversial issue.
10.6.2005 3:19pm
SimonD (www):
I'm not the first person to point this out, but it bears repeating: her selection sends the message to every conservative or libertarian out there that the way to be selected for the court, even with a Republican president and court, is to hide your views from the very beginning of your career. Don't join the Federalist Society, don't publish any substantive papers or give any speeches expressing any view on any controversial issue.
It bears repeating again, in fact. David Wagner has a similar concern:
My concern is that open advocacy of conservative legal views is now a definite disqualifier for the Supreme Court, in a conservative administration that campaigned in part on putting more Scalias and Thomases on the Court, and with a 55-member GOP Senate conference. Whether you're in practice, in academia, or on a lower court, the crime of being conservative in a public place now means no one will appoint you to the Supreme Court. It's not even clear that Federalist Society membership will be tolerated when it comes to picking high Court nominees.

Watch for the next generation of conservative legal thinkers to go silent on the big questions, leaving no indication of who they are, making no disciples, and forcing the next conservative administration -- if there ever is another one, which must now be considered in doubt -- to trust to sheer luck in finding them.
10.6.2005 3:41pm
Bezuhov (mail):
"If you really believe that, with due respect, I think the best thing you can contribute to this debate is silence. Are you really seeking to argue that because there are plenty of geniuses on the Supreme Court that a mediocrity might help?"

Well, you do have a point. Silence is preferable to setting up straw men to knock down and putting words into someone else's mouth. It is not I, however, who am doing so.

I would argue neither that the Supreme Court has plenty of geniuses, if any, nor that a mediocrity would help. Are many here, myself included, not advocating that the legal community follow the lead of Scalia and hopefully more successfully, Roberts? Does that make us all mediocrities?

Being an effective follower, and convincing others to come along, is as well a skill at which some can be mediocre, many conservatives in the past conspicuously so.
10.6.2005 3:46pm
Robert Schwartz (mail):
I am I worried about Harriet Souter?
10.6.2005 4:37pm
Michael B (mail):
Agree with Houston Lawyer, David Nieporent, SimonD and similar sentiments. The most fundamental problem with Miers is she does not have the proven credentials reflecting the combination of backbone, judicial facility and intellectual heft to definitively carry a fight forward when it's needed. Might she possess them anyway? Yes, it's theoretically possible but the demonstrated, open advocacy of the primary constitutional concerns is what is needed. George Will's column wasn't overly impressive in its entirety imo, but his point concerning the lack of a demonstrated talent for constitutional reasoning cannot be swept aside. Will notes:

"The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination."

In this he is compelling and correct. Advise and consent, in the spirit intended by the founders, requires a thorough and critical review and in all likelihood a rejection of this nominee.
10.6.2005 4:38pm
Scott Clair (mail):
Miers may or may not be a good Supreme Court justice, but I'm tired of hearing about the genius of Scalia and other conservatives. I like Scalia's dissents b/c they are funny and readable, but he's an erstwhile originalist. His views of the 11th Amendment are nothing more than "Hans has been on the books 100 years." This is respect for stare decisis, which is a perfectly fine approach to judging, but it's not originalism.

Another example is Scalia's Grutter dissent. That dissent is so far removed from originalism it is embarrasing. The framers and ratifiers of the 13th and 14th Amendment also established the Freedman's Bureau, which was certainly a form of affirmative action. No mention by Scalia, though.

Now saying the 14th Amendment bars nearly all race conscious decisions by governments is a legitimate and broad interpretation of the Amendment, but that interpretation is the living breathing Constitution, Scalia-fans.

I'm not only interested in what Miers' views are, I'm interested in what Miers' views of the Scalia-Thomas originalist-today, policy-maker tomorrow are.
10.6.2005 5:16pm
Hans Bader:
The above post's idea that Grutter v. Bollinger, which upheld the University of Michigan's race-based affirmative-action plan under a "diversity" rationale, is somehow an example of judicial restraint, is misguided.

Title VI of the Civil Rights Act expressly bans any racial discrimination in educational institutions. It does not contain any affirmative action exception or any mention of "diversity," which did not even exist as a concept at the time Title VI was passed in 1964.

The plaintiffs in Grutter relied on Title VI, and the language of 42 USC 1981, not just the Fourteenth Amendment, in arguing that the University of Michigan could not discriminate against whites or Asians for the sake of "diversity," especially not using large preferences. It was a statutory challenge as well as a constitutional challenge.

Why then attack Scalia for dissenting in Grutter?

The majority's creation of an unwritten exception to Title VI and other civil rights statutes was a far greater act of judicial activism. Courts are not supposed to engage in lawmaking, such as by rewriting laws to exempt from them illegal conduct that the court favors on ideological grounds.

At least Scalia did not do that.
10.6.2005 7:00pm
David M. Nieporent (www):
The framers and ratifiers of the 13th and 14th Amendment also established the Freedman's Bureau, which was certainly a form of affirmative action.

1) The framers and ratifiers of the 13th and 14th Amendment were not bound by the Equal Protection clause, which applies on its face to the states, so the fact that they established the Freedmen's Bureau as a federal agency tells us nothing about their understanding of the 14th amendment.

2) The Freedmen's Bureau was formed before the 14th Amendment was ratified, so that makes it even more irrelevant.

3) The Freedmen's Bureau was "a form of affirmative action" only in a very different sense than the University of Michigan used the term. The Freedmen's Bureau wasn't applying race-conscious remedies; it was applying status-conscious remedies.

4) The Michigan cases don't depend on the 14th Amendment, so the correct interpretation of "equal protection" is ultimately only trivia; the Civil Rights Act explicitly bans affirmative action of the form practiced by the University of Michigan. The liberals on the court (going back before Grutter, to Bakke, of course) simply rewrote the CRA so that it said something different than it actually says.
10.6.2005 7:37pm
Scott Clair (mail):
Hans and Dave,

Here's what Scalia wrote in Grutter dissent:

"Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today's Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation."

Now I don't want to get into the legal niceties that courts view Title VI as co-extensive with the Constitution's protections, but where does Scalia's desire for a "clear constitutional holding" here even talk about originalism. It doesn't. Whatever your views on the Freedman's Bureau, surely Scalia as originalist should give some originalist view as to why the 14th Amendment bans consideration of race in favor of minorities. He doesn't even try. So where's the originalism?

And as to judicial restraint, the Grutter decision does not stop the university or the state or Congress from banning any race-based consideration, which may be a very good idea. It's not like the majority held that race-based affirmative action is compelled by the Constitution for university admissions at Michigan. Californians banned it, and so can Michigans or Texans or any other state.

I'd also love to hear your collective take on how Scalia's views of the 11th Amendment comport with originalism. They don't. So he's wide open to the charge that he's an originalist when he wants to be, which really means that he's no different than the rest of them when it comes to applying a consistent judicial philosophy. Originalist my ass.
10.6.2005 9:58pm
Challenge:
Wikipedia isn't the best source, Mr Clair, but it says the Freedman's Bureau served poor white farmers in addition to blacks. Moreover, the Bureau appears to have been formed to address problems in racially neutral ways.

A modern day equivalent would be socio-economic affirmative action, which would disproportionately benefit minorities but would not be unconstitutional. What do you have to say for yourself?
10.7.2005 3:20am
Scott Clair (mail):
Dear Challenge:

Wikipedia isn't the best source, but the Freedman's Bureau did not only try to help former slaves, as you point out. Anyway, the Freedman's bureau is not the only evidence that the framers and ratifiers of the 14th Amendment did not believe in colorblindness, which is Scalia and Thomas' position. The main point, though, is that neither of these originalists have ever addressed in their opinions or other writings why an originalist view of the 14th Amendment bars affirmative action.

Someone above made the good point that the 14th Amendment only applies to the states (unlike the 15th Amendment), but Scalia's colorblind view, which is a perfectly fine interpretation, applies to the federal gov't as well, or else he wouldn't have voted with the Adarand majority (which means he's not really a strict textualist either).

The point is that Scalia (and to a lesser extent Thomas) forsake originalism at times, and don't even say why. Neither do their acolytes. This isn't to say that Scalia or Thomas' views aren't better than Brennan or Marshall's views. But Scalia and Thomas, like the rest of us, don't always practice what they preach.

As for any present and future nominee to the Supreme Court, that would-be justice could not say they are a strict originalist or a strict textualist b/c they would not get any votes in the Senate and public opinion would be against them.

A few things a strict originalist or textualist would have to say that would sink them in the Senate:

(1) The federal gov't can discriminate based on race (except for the right to vote under 15th Amendment).

(2) Federal and state gov't can discriminate on basis of sex (except for the right to vote under 19th Amendment).
10.7.2005 3:09pm
bobbie:
Oh, oh! If we're going to jump on Scalia and Thomas for their originalism on Monday, but not on Tuesday if it suits me, we need look no further than the Speech and Free Exercise clauses of the First Amendment. Whatever your views on either one of those clauses, isn't it a bit odd that its rare for Scalia or Thomas to substantively discuss what the framers thought either one of those clauses meant? (I was also surprised to learn that the framers of the 14th Amendment were so concerned about voting rights.)
10.7.2005 10:39pm