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October 05, 2005

Miers Worse than Roberts

Everything I've read so far indicates to me that Miers will be worse than Roberts if confirmed. Partly, it's because Roberts really ended up not being such a blank slate. Of course, he'll be a conservative vote on most areas where there is judicial discretion, but it's also clear that Roberts actually believes that judicial discretion has its limits.

Maybe Miers believes the same, but the very fact that she has no visible judicial philosophy argues against it. While people laud Sandra Day O'Connor, her actual judicial philosophy was one of almost complete judicial hegemony. Her politics may have been more moderate than Scalia, but her more moderate (but usually quite conservative) balancing tests and other legal approaches in her opinions meant that the courts were left with lots of discretion to decide any individual case.

Miers is likely to be the worst of all worlds: rightwing views reflecting her history as a Republican evangelical corporate lawyer political hack combined with a legal philosophy unmoored by any inherent respect for legal consistency. She probably won't join Thomas in trying to repeal the New Deal but I would bet she is far more willing than Roberts to overturn Congressional and state laws that offend her political views.

That's obviously only a guess at this point and we will see how the hearings go, but any idea that she is somehow inherently more moderate than other alternatives because of the lack of a paper trail is inherently ridiculous. Bush feels comfortable enough with her views to bring her into the inner workings of the White House and apparently James Dobson is comfortable enough to endorse her.

Hack political conservatives should probably be delerious with happiness over the choice. Of course, honest conservatives rightly are embarassed that the intellectual viability of conservative legal thinking is so weak that it needs to be hidden behind a stealth candidate hiding her views. In that sense, progressives can celebrate Miers' nomination as a sign of the intellectual collapse of conservatism.

Posted by Nathan at October 5, 2005 12:35 PM