ConfirmThem

By DanCT Posted in SCOTUS — Comments () / Email this page » / Leave a comment »

David Frum has a biting post about Harriet Miers on David Frum's Diary at NRO this morning. The whole entry deserves a read, but two of his comments in particular are troublesome.

First:

"[In] the case of Grutter v. Bollinger, a challenge to the constitutionality of preferential treatments for minorities in education[,] many in the administration wanted to take a strong stand in favor of color-blindness. In the end, the administration faltered and argued that racial preferences are okay, up to a point. It is hard to imagine a more central issue to modern legal conservatives. Where was Miers? On the wrong side."

Second:

"'She failed in Card's office for two reasons,' the official says. 'First, because she can't make a decision, and second, because she can't delegate, she can't let anything go. And having failed for those two reasons, they move her to be the counsel for the president, which requires exactly those two talents.'"

Obsession with detail and inability to make a decision are exactly the characteristics that lead to to meandering, hair-splitting technical decisions like Grutter (which found that racial discrimination in law school admissions o.k.) and Gratz (which was issued at the same time but found that racial discrimination in undergraduate admissions is not o.k.) that make for muddled law. The difference between the two cases is that the discrimination was more clearly defined in Gratz. Essentially, the twin rulings are that it's fine to say, "We discriminate based on race because we want diversity," but illegal to say, "We discriminate based on race by using the following formula...We do this because we want diversity."

Imagine it is 1954 and Brown v. Board of Education comes before the court. Instead of a "brisk, non-technical and unexpectedly unamimous opinion running only ten pages" and deciding unamibiguously that separate is inherently unequal, suppose that the fictitious 'Justice Harry Myers', who was indecisive and detail-obsessed, wrote the decision for a 5-4 court: "In Kansas and South Carolina, the segregation of the schools is o.k., but in Virginia and Delaware it is not. Different conditions prevail in the different areas, so narrowly tailored segregation is o.k. If you have any questions about whether the segregated schools in your city are unconstitutional or not, please consult us again. We'll let you know." Please! We need a Justice who is willing and able to make clear decisions, not one who is indecisive and looks to make both sides happy.

We know very little about Harriet Miers' judicial philosophy or temperament, but Frum raises some important questions. These questions can't be answered by her simply expounding on judicial philosophy in the hearings (which she is unlikely to do with any depth anyway); they need to be answered with evidence in her record. I'm still withholding judgment, but the case for her appointment has been weak thus far and the White House has done little to strengthen it since the announcement Monday morning.

The rumors and innuendo that are swirling around Ms. Miers suggest that she does not have a well-honed ability to think clearly and see her way through the loads of crap that would inevitably be thrown at her as a Supreme Court justice. Until we learn more, though, these are just rumors and innuendo. However, given her close ties to the President and her marginal credentials, there must be intense scrutiny of her judicial philosophy (originalist or, e.g., "Civil Rights Act be damned! Evolving standards of PC thought dictate racial discrimination for another 25 years") and judicial temperament (detail-obsessed indecision and impulse to make both sides happy or clarity, courage, and principled decisions).