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Miers, TalkLeft, and the Death Penalty:
Jeralyn Merritt of TalkLeft knows Harriet Miers, and is making the case that political liberals should be optimistic about the Miers nomination and "give Harriet a chance." An excerpt:
  Most of those I've spoken with believe she will be okay or better as a Supreme Court Justice. While she may be more conservative than many of us, all thought she would be fair. . . . . There has been a lot of praise for her pro-bono efforts while President of the Texas bar.
  The main thing to keep in mind are the alternatives. From a legal standpoint, we lucked out with both Roberts and Harriet Miers. If she were to withdraw and Bush were then to repay the radical right what they think he owes them, we will be far worse off. We didn't get Wilkerson or Luttig from the 4th Circuit, Rogers Brown, Edith Jones, Priscilla Owen or Alberto Gonzales. But we may, if Harriet is not confirmed.
  I think that political calculation is probably right. Indeed, if Hugh Hewitt is correct that Miers will be another Potter Stewart, Miers may end up giving a fifth vote to Breyer, Ginsburg, Stevens, and Souter on a number of important issues that used to split 5-4 in a conservative direction.

  One likely area is capital punishment. The Justices of the Rehnquist Court were deeply divided on the death penalty. To oversimply things a bit, Souter, Breyer, Ginsburg, and Stevens have been eager to restrict it considerably; Kennedy and O'Connor have wanted to keep it basically intact but tinker a bit around the edges; and Scalia, Thomas, and Rehnquist wanted to keep it "as is." If confirmed, Miers may provide a real opportunity for death penalty opponents: In one of the very rare statements Miers has made that is relevant to the work of the Supreme Court, she expressed the view that the death penalty in Texas needs to be overhauled to provide better representation for indigent defendants. (Describing reforms of the death penalty in Texas in 1993, Miers stated that "we're using a Band-Aid approach when the system needs an overhaul.") It's hard to know with any certainty how this might shape her views about the Constitution. To the extent that Miers will be influenced by her years in practice, however, it seems reasonable to expect that she'll be a fifth vote to accelerate the restrictions the Supreme Court has imposed on capital punishment.

  Thanks to the Corner for the link.
Jacob Lister (mail):
Is ensuring that an indigent has a competent lawyer during a complicated process that could cost him his life really just "a restriction on capital punishment?"

It may be oversimplifying things too much to say that her preference for competent counsel means she will vote to restrict capital punishment by forbidding execution of those who committed their crime while under 21, or forbidding execution of the elderly, or some other restriction.
10.15.2005 1:58am
Jonny's_Light:
So we should confirm Miers on the basis that she is the best possible candidate that Bush will pick? Saying that if Miers withdraws, we will be worse off than originally with Miers..
10.15.2005 2:02am
OrinKerr:
Jacob,

I agree that the connection is not direct; we know so little about Miers it is hard to make a direct connection. At the same time, the majority of the cases the Supreme Court decides on the death penalty are procedural: they focus on how the process works, not who may be punished. Given that, I think her 1993 statement probably reflects sentiments that could have a significant impact on actual cases. Of course, whether that is a good thing or a bad thing is another matter.
10.15.2005 2:33am
OrinKerr:
A note for CrazyTrain:

I'm pretty sure that my description is accurate. Of course, it's not detailed, so perhaps you and I just have a different sense of what it means to be "eager to restrict the death penalty considerably." But I think argument is probably a more effective approach than name-calling. Just a thought.
10.15.2005 3:28am
Jonny's_Light:
I'm sorry, who is "CrazyTrain?" Is that in reference to Jacob or I? Please specify.
10.15.2005 3:47am
OrinKerr:
Sorry for the confusion, JL. CrazyTrain is another commenter whose comment was deleted.
10.15.2005 3:50am
Bernard (mail):
Whatever came of the notion of "judicial temperament" that we conservatives have bandied about over the years - as opposed to "issues"? I have not read those two words in this debate about Miers. Does it just depend on whose ox is being gored?

Bernard
10.15.2005 7:31am
M (mail):
I'd think that noticing that the Texas death penalty scheme is in need of serious work, at least, in many areas is just a prerequisit for not being crazy or blood-thirsty. I'm glad Meir seems to meet that standard but I don't see that it raises the bar very high at all.
10.15.2005 10:57am
Medis:
I applaud political liberals who throw their support behind Miers--that should help bring an end to this fiasco of a nomination.
10.15.2005 11:27am
JosephSlater (mail):
For a liberal view that Miers should not be confirmed because she's an unqualified crony, see Joe Conason's piece in salon.com. I'm neither endorsing nor condemning it, just showing that there's a divide on the liberal side too.
10.15.2005 12:55pm
JayJ:
Let's say after the Senate Confirmation hearings, some Republican Senators vote no. I doubt the Democrats would decide to support Miers simply on that basis (or on the basis of Miers being "better" than potential alternatives). Dems supporting Miers in such a political landscape would mean they'd give up an opportunity to deliver President Bush a major blow. This would especially be the case if the public rationale on both sides is that Miers is an "obsequious instrument of [the President's] pleasure," to quote Alexander Hamilton from Federalist 76. Even if the Dems are concerned that a "worse" nominee (in terms of results, which seem to be mainly what the elected officials care about) could replace Miers, I don't see the Dems rallying around Miers to enable her confirmation if some Republicans vote against her. The Dems can be principled (voting against an unqualified nominee) and deliver a major political setback to Bush at the same time.
10.15.2005 1:19pm
Medis:
JayJ,

I dunno ... what if Miers, say, explicitly came out in favor of upholding Casey (on precedential or substantive grounds) in the hearings? At least some Republicans might vote against her, but I think you might see a lot of Democrats vote for her too--and precisely because they would view it as both pleasing their base AND sticking it to the President at the same time.
10.15.2005 2:00pm
JayJ:
Medis, that's a good point you make. Of course, if Miers explicitly came out in favor of upholding Casey, that would probably be a bigger blow to Bush than if Miers were not confirmed. I'd like to see Hugh Hewitt and company try to defend Miers after she's explicitly said she would uphold Casey (and consequently uphold the central holding of Roe). As a result, I'm pretty confident that one thing Miers must do in order to pass the "crash course" in con law she is getting is be able to evade any question that asks if she will uphold Roe and Casey.
10.15.2005 2:19pm
cfw (mail):
Very interesting comment from Miers. Probably not mirrored in anything of the sort from Luttig, AGon, R Brown, E Jones.

Bad or underfinanced lawyers are one of two primary themes harped on in virtually all death penalty cases, the other being the accused is (or was) not mentally mature and reflective (from defects, PTSD, low age, low IQ, stress, intox, etc., accused had the mental capacity of a 5-10 year old at the time of the offense).

Miers seems to have bought (at least in 1993) the ABA approach - get better counsel, properly financed, plus good experts re mental health issues. This differs sharply from the AGon/Bush approach, which is a pathetic who cares?

Miers has more on the ball than Bush in lots of ways. Instead of viewing Miers as the puppet of Bush, I see Bush as in many ways the puppet of Miers. She controlled what he saw. She sort of topped from the bottom. Sort of like Hamilton and Washington. I have a hard time seeing her as any sort of toady of Bush.

Can she grow into the job? I have no real concerns about her getting a handle on the law. The briefing, plus clerks, plus rubbing shoulders with Roberts et al will keep her from doing really stupid things with cases, statutes, constitutional provisions. After all, each case briefed for the USSCT has a limited number of pivotal statute clauses, constitutional provisions, cases, etc. that are in play.

Getting the facts and meta-facts (ethics, philosophy, what have you) right (or close to right) is the much harder (and unavoidable) task.

I trust her to do a better job with facts and meta-facts than Bork, E. Jones, AGon, E Jones, Luttig. I cannot see most blue staters opposing Miers (barring a real screw up from here forward by Miers).
10.15.2005 2:21pm
JayJ:
Strike the "probably" from the second sentence of my above post (10.15.05 1:19 pm). It almost certainly, if not certainly, would be a bigger blow to Bush if Miers explicitly came out in favor of upholding Casey than to have Miers be voted down. And, as I implied above, the chances of Miers saying she will uphold Casey are pretty much zero. Nevertheless, given your premise Medis (no matter how unlikely it is), you make a good point.
10.15.2005 2:24pm
Medis:
JayJ,

I agree that she probably won't come right out and say it. However, I think there is a real possibility that she will end up saying enough in the hearings to make that the most obvious conclusion, which I think could be enough to give rise to the dynamic I suggested. And unlike with Roberts, I think she may be pressed just as hard by some Republicans on this issue as by Democrats, and it may well be in the course of responding to their questions that she inadvertently tips her hand.

Of course, maybe she will tip her hand as a sure vote to overrule Casey, in which case a very different dynamic will play out.
10.15.2005 3:45pm
Jeremy Pierce (mail) (www):
I've never had a Con Law or any other law course, but since I've listed to Roberts' testimony I know how exactly to avoid such questions. Why couldn't Harriet Miers, who does not a lot more about constitutional law than I do, be able to do the same thing?
10.15.2005 11:19pm
Rhadamanthus (mail):
Honestly I don;t care what the new justice does as long as they are able to write a clear and concise opinion. I did a paper on Atkins v Virginia and had immense fun in a chapter ripping apart the banal writings of Justice O Connor. Unsurprisingly the lower courts have found the many loopholes and have responded enthusiastically.

Politically I'm an abolitionist but I just wish the courts would write a clear opinion on it- even God help us if it means that Scalia has to write it.
10.16.2005 2:28pm
Apodaca:
I predict that the Dems will ultimately decide that it's in their best interests to vote for confirmation. As tempting as it must be to exploit divisions within the Senate's GOP caucus, and to hand the President a very public defeat, the better long-term payoff is to support her. Not only does this avoid appointment of a known quantity (a la Luttig) less attractive to the Dems, but it would exacerbate the Religious Right's alienation from the GOP (or at least the current administration).
10.17.2005 12:40pm