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Senators Respond to the 1993 Miers Speech:
MSNBC has the scoop here. Senator Brownback's reaction: "It does raise concerns . . . I think she has a high hill to climb." Senator Feinstein's reaction: "Not bad."
DNL (mail):
Given how vague Ms. Miers has been thus far, and assuming that such obfuscation (or inability to express one's ideas clearly) continues, how can any of the Corzine-Schumer crowd vote for her now?

If any of them vote to confirm, remember these Senators speak of precedent when deciding how to vote. So yes, they talk the talk, but they walk a very different walk.
10.26.2005 7:09pm
Greedy Clerk (mail):
I'd be shocked if any Democrat voted for Miers. There is no incentive for them to do so. She is just as much a wildcard to the left than she is to the right. Moreover, the one thing we do know about her is that she reveres George W. Bush --- no Democrat is going to think that is good thing. Finally, a defeat of a Supreme Court nominee will hurt the president and his party and there is no constituency that wants her confirmed. Unlike with Roberts who because he was obviously qualified, certain Democrat Senators would have been hurt with moderates by a "no" vote, that situation does not exist here. There aer two good reasons not to vote for her: she clearly is not qualified to be a Supreme Court Justice, and her nomination is the result of an almost schoolyard cronyism (at a time when cronyism very well cost many people in New Orleans their lives).
10.26.2005 7:14pm
Anderson (mail) (www):
Whose remark is more damning, Brownback's or Feinstein's?
10.26.2005 7:25pm
DNL (mail):
Greedy:

But there's a very good reason TO vote for her: Sen. Reid suggested her. Bush, in effect, got his advice and consent.

A rejection gives Bush the ability to nominate anyone he wants and, in the face of Democratic dismay, state unequivocally, "Your leader recommended someone. I nominated her. You voted her down. I say f--- you, joboo, I do it myself."
10.26.2005 7:27pm
Hans Bader (mail):
The speech suggests that Bush was mistaken about Miers' legal philosophy, and that the specter of judicial activism is very real.

In nominating Harriet Miers to the Supreme Court, the President said that "she will strictly interpret our Constitution and laws. She will not legislate from the bench."

However, her apparent praise of judicial activism in her Spring 1993 speech to Executive Women of Dallas raises serious concerns about whether she in fact shares the President's stated philosophy of judicial restraint.

The Texas Supreme Court had recently ruled that language in the 1875 State constitution requiring an "efficient system of public free schools" required not just financial efficiency, but also "substantially equal access to similar revenues per pupil" and a "general diffusion of knowledge" statewide. The court's ruling compelled the state to increase spending in many school districts, and resulted in pressure to raise taxes.

The Texas Supreme Court's ruling was widely derided as judicial activism, for two reasons. First, it declared unconstitutional disparities in school funding that had existed without being questioned ever since the state constitution's drafting. Second, it gave "efficient" an unusually expansive meaning.

A strict constructionist opposed to legislation from the bench would have criticized the ruling. But Miers instead praised it as a "hard" but necessary decision. She derided those who "blamed" courts "for activism or intrusion where they do not belong," and criticized "the legislature and the public" for finding "fault" with "the court that finally presents the legislature with no alternative but to" act. Turning democracy on its head, she criticized legislators "who are too concerned about" getting reelected, and argued that "Political leaders have to start showing more . . . willingness to make unpopular decisions," like considering imposing "a state income tax" to pay for more school funding.

Several state supreme courts have since issued decisions invalidating school finance systems, based on reasoning similar to the Texas court. Those decisions have led to billions of dollars in tax increases, with no discernible increase in student achievement.

One hopes that Miers no longer condones judicial activism as she appeared to do in 1993, and that her confirmation hearings will provide some support for the President's hope that she will not legislate from the bench.

But that is just an unsupported hope.
10.26.2005 7:34pm
Shelby (mail):
Anderson:
Whose remark is more damning, Brownback's or Feinstein's?

Feinstein's, of course.

Oh, did you mean damning to Miers?
10.26.2005 8:59pm
alexandra (mail):
I can see it all before my eyes. Miss Miers makes it to the hearing.....performs poorly........she's sent out of the committee without recommendation....Senate votes .....she is confirmed as an associate judge with overwhelming support by the democrats . In the end , it is a narrow defeat by the Republicans...but a victory by President Bush.

I honestly had a weird dream last night.......somehow I heard a noise, went into the kitchen and found a bag of ice on the floor. When I bent down to clean up the mess,I saw my cute little black and white kitten laying under some of the ice chips. When I picked him up, I kinda freaked out . His head was sliced away from the body. Now, you might think the kitty was dead.....yet there was no blood. It was a clean decapitation. The body purred, the feet moved and the head (dismembered from the body) was in full function, the little ears moved, the eyes opened and closed and looked up to me with total devotion. I remember trying to somehow put the two parts together and holding my kitty but it did'nt work so I would hold the little head and then pet the body. My last thoughts were " I wonder if the vet could suture him back together"
Does this have any significance to the Miers problem?
10.26.2005 9:34pm
John Herbison (mail):
Does Miss Miers' chameleon-like approach to "judicial activism" surprise anyone? Isn't the real question whether, in a particular case, an "activist" result will benefit her patron?

In fact, "activism" to the Bush coterie depends entirely upon whose elephant is being Gored--as in Bush versus. But for the five activists for whom acting as wardheelers took precedence over acting as jurists, the decision of the Florida Supreme Court interpreting Florida statutes would have remained in force. In the event of a challenge to Florida's electors, the election would have been determined by the House of Representatives, per the framers' original intent, in all likelihood yielding the same outcome.
10.26.2005 9:39pm
John Herbison (mail):
Does Miss Miers' chameleon-like approach to "judicial activism" surprise anyone? Isn't the real question whether, in a particular case, an "activist" result will benefit her patron?

In fact, "activism" to the Bush coterie depends entirely upon whose elephant is being Gored--as in Bush versus. But for the five activists for whom acting as wardheelers took precedence over acting as jurists, the decision of the Florida Supreme Court interpreting Florida statutes would have remained in force. In the event of a challenge to Florida's electors, the election would have been determined by the House of Representatives, per the framers' original intent, in all likelihood yielding the same outcome.
10.26.2005 9:39pm
ChrisS (mail):
I would say this is the death-blow to the nomination, but it's already had so many of those that Sonny Corleone is looking health, wealthy, and wise at this point.
10.26.2005 10:31pm
EricH (mail):
"Does this have any significance to the Miers problem?"

Yes, it means that neither Miers nor you will ever sit on the Supreme Court.

Next?

EH
10.26.2005 10:33pm
Victor Davis (mail) (www):
Hans Bader -- thanks a lot for the background info. To be clear, then, would you agree that the following is NOT a factually accurate picture of education on the ground in Texas back in 1993:

"There were schools which could not operate because the community had insufficient tax base [sic] to raise money sufficient to support a worthwhile public education system. As a result in some areas of the State the children were being denied a meaningful education."

Objectively speaking, were schools being closed down and/or students being "denied" a "meaningful" education? Or was this hyperbole designed to persuade the listener that her political position on the level of education funding was also required?
10.26.2005 11:17pm
Harriet Miers' Law Partner (mail):
Mr. Bader states:

The Texas Supreme Court had recently ruled that language in the 1875 State constitution requiring an "efficient system of public free schools" required not just financial efficiency, but also "substantially equal access to similar revenues per pupil" and a "general diffusion of knowledge" statewide.

The Texas Constitution provides that "[a] general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools." Tex. Const. art. VII, Sec. 1 (emphasis added).

So what is activist about a judge requiring the school system to generally diffuse knowledge when the text commands exactly that?
10.26.2005 11:17pm
Cornellian (mail):
I am inclined to think that Ms. Miers, like much of the public, but unlike many readers of this and similar blogs, simply adopts her positions on an issue by issue basis according to what feels appropriate, and as circumstances require, without ever trying to reconcile them into some kind of consistent political or legal philosophy. She joins the Texas Bar Association, sees that lots of people there seem to be enthusiastic about affirmative action, probably doesn't have any strong views on the subject, and so she supports it. She joins an evangelical church and becomes pro-life. Is there any political or legal inconsistency between those two positions? Maybe, maybe not but I doubt she's ever given much thought to the question. The conclusion? She'll probably be a pragmatist like O'Connor. Particularly given her background as an elected politician, I predict a penchant for baby-splitting.

Personally I don't think she's qualified for a SCOTUS seat. She's obviously qualified to be a lawyer but that's not enough. So I don't think she should be confirmed, though I think it would be hilarious if she got confirmed with more Democratic votes than Republican ones. Double irony if she then turns out to be like Thomas, however unlikely that would be.

Now suppose Bush still really wants her confirmed? In that case, if I were Bush, I'd just casually mention to Harry Reid that things seem to be going badly with the Miers nomination and if she's not confirmed he's got Priscilla Owen or Janice Rogers Brown waiting in the wings. Then let's see how many Democrats vote for Miers.
10.26.2005 11:33pm
Jake Kreutzer (mail):
Harriet Miers' Law Partner:

I believe the problem with Ms. Miers's position is that it invites the sort of ends-means distinction that drives originalists nuts. That is, judicial opinions of the form: the law was passed to do A in order to implement goal X; however, we feel that doing B would actually implement X more efficiently, therefore the law now requires B.

In other words, no matter how much you like the second amendment, it's hard to argue that it creates a judicially enforceable right to have a well-organized militia (let alone giving the Supreme Court a mandate to tell state governments how their militias should be organized...).
10.27.2005 12:10am
Dave Hardy (mail) (www):
You sure this wasn't an address to a second-grade class? It sure doesn't read like an adult speaking to adults. Perhaps two transcripts got swapped.
10.27.2005 12:55am
Dave Hardy (mail) (www):
sorry, got my links confused. I'd been looking at the other speech, the one that begins she's happy to be back among her own.
10.27.2005 12:58am
Harpo:
The Democrats will use the same tactic the Republicans used with CAFTA - they will allow her to be confirmed with as slim a majority as possible.

If six or more Republicans oppose, votes will be found to offset them. There are quite a few quasi-Democrats from flyover states who will be happy to play along.
10.27.2005 1:47am
Cornellian (mail):
The Texas Supreme Court had recently ruled that language in the 1875 State constitution requiring an "efficient system of public free schools" required not just financial efficiency, but also "substantially equal access to similar revenues per pupil" and a "general diffusion of knowledge" statewide. The court's ruling compelled the state to increase spending in many school districts, and resulted in pressure to raise taxes.

The Texas Supreme Court's ruling was widely derided as judicial activism, for two reasons. First, it declared unconstitutional disparities in school funding that had existed without being questioned ever since the state constitution's drafting. Second, it gave "efficient" an unusually expansive meaning.

A strict constructionist opposed to legislation from the bench would have criticized the ruling.


Well as another poster pointed out the Texas constitution actually does call for a "general diffusion of knowledge". I'm curious about this concept of "strict constructionist". I see it used a lot by people who call themselves conservatives when complaining about results they don't like. Sometimes people say it means "original intent" or "original understanding" but the two reasons cited in the earlier post for labeling the decision as "judicial activism" are that it took an expansive view of "efficient" and that it found unconstitutional school funding disparaties that had existed since the time the constitution was drafted. Neither of those is automatically an indicator of original intent or original understanding so what exactly does "strict constructionist" mean here, other than a code phrase for "results that I like?"
10.27.2005 2:18am
alexandra (mail):
"Yes, it means that neither Miers nor you will ever sit on the Supreme Court. "

Next?

EH

This gave me the first laugh of the morning!!!
10.27.2005 10:00am
Victor Davis (mail) (www):
Cornellian -- Diffused is not synonymous with permeated. Money is not synonymous with knowledge. No legislature or court can guarantee equality of knowledge. A diffusion of knowledge is not the same thing as equality of money, and even if it did, there is quite a bit of variation possible for how to measure money. Strictly from the text, I have trouble reading that passage and understanding a forced equality requirement.

But to your point on original meaning, I agree that there isn't anything in this thread is *automatically* an indicator of original meaning. You can't come up with a definitive interpretation in 100 word comment sections in blog posts. But I do think Hans Bader presented some very important facts about how people originally understood the Texas Constitution. But I'm sure there are many others, and some of those may indeed work the opposite way. You can feel free to post those salient facts.

The point in this discussion, I think, is that Harriet didn't even bother to "look behind the veil". The "result" under discussion is whether the Courts should intervene in a situation like what existed in Texas in 1993. She seemed argued yes, primarily because the situation on the ground demanded a solution from someone, preferrably the legislature, but the Court if necessary. So, yes, I and others are showing our bias toward humble Courts by being more accepting of facts that suggest the original meaning of the Constitution supported limited Court intervention.

If you can provide alternative information that would change my understanding of the original meaning of the Texas Constitution, I would change my mind. I would love to fund education more highly, and I personally vote in favor of increasing my property taxes every chance I can get (seriously). On a personal basis, I think Harriet has a similar affinity for education that I do. On a professional basis, however, I am very disappointed at how she arrives at a conclusion which accepts Court mandates that require everyone to behave more like she and I would like them to do. (caveat: compared to VC contributors and posts, I know nothing about originalism. These are just a lay person's perspective. But I felt your question was important, and I have had to deal with a similar issue more recently in my own state. Contrary opinions always welcome.)
10.27.2005 10:02am