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Sapere aude - dare to be wise
Tuesday, October 11, 2005
My stance on Harriet Miers
Posted 2:26 PM by Luke
I oppose Harriet Miers' nomination to the Supreme Court. I oppose it because, not in spite of, my conservative attitude regarding the Constitution. I oppose it because it was made for the wrong reasons and upon a deleterious basis.

When President Bush stood before the lectern and announced Miers' nomination, he reaffirmed his very un-conservative adherence to identity politics and his promotion of the blurring of religion and politics. His mantra, 'Trust me, I know her,' is anything but reassuring considering his lack of legal and Constitutional experience.

Who did President Bush expect to convince with that reasoning? No, maybe the better question is who was convinced by it?

Principled conservatives such as George Will, Charles Krauthammer, and Robert Bork all have publicly opposed her, while several prominent Protestant evangelicals, such as WorldMag's Marvin Olasky, Dr. Richard Land, and James Dobson, have supported her. This provides a clue to the basis upon which President Bush would like us to trust his nomination of Miers: she is a politically active and devout evangelical, just as is Bush.

In explanation of his support of Miers, Olasky wrote the following:
Maybe it’s the judicial implications of her evangelical faith, unseen on the Court in recent decades. Friends who know Miers well testify to her internal compass that includes a needle pointed toward Christ. Again, Texas Supreme Court Justice Nathan Hecht told me she has a philosophy that grows out of evangelical exegesis and carries over into legal issues: "She's an originalist -- that's the way she takes the Bible," and that's her approach to the Constitution as well -- "Originalist -- it means what it says."
Never mind theexclusivitym displayed in Olasky's refusal to acknowledge the Catholic Scalia's or the Lutheran Rehnquist's faith, the more troubling aspect of this argument is that religious faith and intention are supposedly enough to form the requisite intellectual capacity to interpret the Constitution in a conservative textualist manner.

Her faith is certainly not a disqualification, but by itself, it does not qualify her for the Supreme Court, as Bush et al. would have us believe. Conservatives may take heart that her evangelical faith would make her likely to side with them on issues such as abortion, but what about the commerce clause, matters of equal protection and due process, federalism, etc.? What does her biblical exegesis tell her on these matters?

This nomination sends the wrong message--namely, that to be qualified for the Supreme Court one only needs to have the right religious beliefs and to be loyal to the President. If Harriet Miers had any history at all of dealing with Constitutional matters or even intellectually tackling lesser matters of law, the message might be otherwise.

Meanwhile, prominent conservative lawyers, many of which have dedicated their legal careers to developing a consistent and thorough textual philosophy regarding the constitution, have been left out in the cold.

So what are her chances of being confirmed?

Despite Bush's arrogance that she will be, Senate Republicans are not exactly enthused and this ethical question could overwhelm her. Nevertheless, I am less than hopeful that she will be defeated. The Bush administration has shown remarkable prowess at bending congressional Republicans' arms, and they have already unleashed Laura Bush to call critics of Miers, sexist.

Just more sad identity politics.

As seen in the
National Jurist
and on
FOXNews

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