Tuesday, October 04, 2005


Reading the conservative reaction to Miers is rather odd. In particular, all the talk of unqualified is simply misguided. She stood out in her academic environment: she both made law review and clerked for a federal district court judge. She ended up a partner at a major law firm (though people disagree on how distinguished that firm is). She was hired as White House counsel. She majored in math (the crucial part).

Jack Balkin nails her heritage:
In the days to come, we are likely to get a lot of allegations that Miers is unqualified for the job. Don't be fooled. Sure, she didn't go to a fancy law school (neither did the second Justice Harlan, by the way). But in her own way she's just as qualified as lots of other people who have sat on the Court. She may not be qualified in the way that legal academics like myself might like, and not in the way that movement conservatives would like, but she fits a familiar stereotype of Supreme Court Justice-- the business lawyer with powerful connections.
All the talk of cronyism is perhaps heartfelt, but surely not the underlying reason for the objection. Certainly appearances of cronyism are troubling at this historical moment, but over the long-haul that isn't the problem with Miers and her outlook. Republicans of a certain brand wanted Scalia/Thomas, which means either a social conservative of a particular vein, or leaning towards libertarian. What they seem to have gotten in Roberts and now Miers are business conservatives: overlapping, but not identical breeds. More ideologically committed to arcane matters of regulation and property than hot-button social issues.

I doubt that the conservative outrage will last. Meanwhile, it serves to remind us of the fundamental fragility of the Republican coalition: there is no natural identity of interests between business conservatives and social conservatives (and definitely not libertarians), except for the recurrence (or insinuation) of that ever so vague word: conservative.

More on business at Brad Plumer; more on math at Althouse.


Anonymous dick said...

Bush, in his conferences, has stressed time and time again that Miers would never change.
Never change. And, she mirrors Bush philosophy, whatever that is. So we have a Bush look-act-alike in the court? I'd like to ask Bush, and others, just what is so great about a person who will never change. Is her philosophy set in concrete? If, like Bush, proved wrong, will she still remain unchanged and resolute? I do prefer those who chose to change when a new lesson is learned. Does learning cease at some age, preventing change? I hope that some Senator asks her views on philosophical change.

8:27 PM  
Anonymous Maria said...

I don't think the conservative reaction is so odd if you take into account the opportunity cost (c'mon... you are an Economist! I'm suprised you didn't!)- namely appointing someone like Luttig, Easterbrook (I wish), or McConnell to the Court. She is unqualified in light of the conservative intellectual revolution that has been going on in law, which she has largely been outside of and has contributed litle to. The Conservatives who are reacting angrily are doing so because they wanted Bush to be like FDR in the New Deal: appointing Conservatives who will radically transform the Supreme Court and fundamentally change its direction. (To them, it would be conservative because it would be a revival of past jurisprudence, such as recapturing the founders' intent or returning to a Lochner era). It seems that Miers is intensely pro-life (I've heard this from individuals who claim to know her well), and she may well come to many of the same judgements as Scalia and Thomas. My disappointments are that by appointing a candidate without a developed judicial philosophy (again... you could say the same thing about Roberts), Bush has avoided a national debate about how we should interpret the constitution. In addition, he has foregone the opportunity to appoint an individual who has spent almost their whole life thinking about how the constitution should be interpreted, and who will articulate conservative jurisprudence in a new way that will convince the court and nation in a way that Scalia and Thomas have not yet begun to do.

But on the specific issues, I think you are right- she is more of a compassionate conservative with an MBA than a libertarian. Deregulation will probably be more important to her than individual rights. If she really is about business interests, it will be interesting to see how she deals with cases such as Kelo, where business interests are pitted against individual economic rights.

Also, I do think that Orin Kerr's concerns on the Volokh Conspiracy about deference to executive power are right on. For a lot of the conservative libertarian/ conservative traditionalist crowd, this is scary... even if she is pro-life.

2:04 AM  
Blogger Isaac said...

I guess that sort of is what I was trying to say: they aren't really upset about the "unqualified" thing, so much as having lost the possibility to appoint a different kind of conservative. I just didn't put it in econ. speak...

9:28 AM  

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