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:
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.
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.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.
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.
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.
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.
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.
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.
Bernard
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.
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).
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.
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.