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October 03, 2005


I meant to say that she's not disqualified by A3G's rules and regs, as she is from being a judicial diva (since she's not judicial).

i disagree with the poster who said miers is not disqualified from being a super hottie. i mean, she's not bad by judicial standards, but she's no karen williams or edith clement either.

Why do you even bother to hesitate about your judgment on Miers? She's never been a judge, and so is automatically barred from being a *diva of the federal judiciary*. Fortunately for her, she's not disqualified from being a *superhotty*, but as of yet you've only pointed out her fashion shortcomings. And, unlike Roberts, she's never *clerked for the Supreme Court*. Since the above make up the bulk of the content of your site, and pretty much your sole public judge of character, you should be legitimately annoyed with Bush's pick. But at least she's part of the work-a-holic club.


I join the opinion of Ms. Justice A3G in full, and the opinion of Mr. Justice Frum in all but ΒΆΒΆ1-2. I write separately to express additional reasons for concern.


I think that what is making me uncomfortable is nominees who are more concerned with results than process. Whether the results a Justice prefers are liberal or conservative, if they think in terms of results rather than process, they're just another flavor of dead wrong. If one favors process, and follows process in a given case to whatever result is compelled by the law and the facts, then process does not change. But, if you favor results, and are in the habit of choosing results and then finding a reason to come out that way, as you change - which, with age, we all inevitably do - the results you prefer may well change.

This, I think, is what happened with Kennedy, J.: he was a conservative when appointed, but he was a results-oriented conservative, not a process-oriented conservative. As he got older, and spent time in Washington, his proclivities drifted towards the center, thus so did his preferred results. Lacking an anchor in process, he continued to do exactly what he did before: justify results through process, rather than reach results by process. Ditto O'Connor, J. This would explain why the process-oriented originalists have not disappointed the Presidents who appointed them, and the results-oriented Conservatives have in every instance done exactly that.

To add further example - when I was younger, I was in favor of capital punishment; as I have gotten older (and, I hope, wiser - but if not, at least, wider), I have leaned increasingly towards regarding it as a relic that should be abolished. None-the-less, being an originalist, and being thus process-oriented, I am just as compelled today to the conclusion that capital punishment is constitutional as I was back when I thought it was indisputably a good idea. Perhaps Justice Kennedy had a similar journey to Justice Blackmun. Perhaps Justice Scalia, even, no longer feels the death penalty a good idea, but Justice Scalia at least recognizes that the dictates of his conscience are not to be mistaken for the scope of the constitution. The measure of constitutionality is not the personal preferences of five Justices.


I await proof that Miers is a process-oriented originalist, rather than merely a conservative. That this burden of proof lies on the nominee and her backers is unmistakable; if not mandated by the constitution, it is certainly mandated by expediency. Some might suggest that this is a Republican President, and we should thus trust and defer. But I have an unfortunate affliction that I believe doctors call "memory." I keep remembering that a Republican President appointed Earl Warren; a Republican President appointed Harry Blackmun; a Republican President appointed Sandra Day O'Connor; a Republican President appointed Tony Kennedy and David Souter. A President does not gain a right to deference based solely on the party banner they carry; Republican Presidents in general - and a fortiori this President - have earned very little right to deference on their judgement of Supreme Court picks.

Party loyalty should go out of the window when Supreme Court nominations appear, and Senators should remember their oath: to support and defend the Constitution. At the risk of sounding the intolerant ideologue that Ann Althouse suggested that those who oppose Roberts must be - see Althouse, 78 at 1:16 PM; cf. id. at 1:49 PM (Dodd, J., dissenting) - I see no way in which a person who is not an originalist can swear that oath in good conscience.

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As Robert Bork once explained, "I don't want liberal judges, I don't want conservative judges; I want originalist judges."

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