TED KENNEDY is deeply troubled by the ethics of the Supreme Court nominee. Between 2001 and 2006, Samuel Alito, who is currently an appeals court judge, accepted $7,684,423 in “donations” from special interests who perhaps wanted the law tweaked in their favour. That included $28,000 from defence contractors, $42,200 from drug firms and a whopping $745,373 from lawyers and law firms.

No, wait. Those are Senator Kennedy’s conflicts of interest—or, rather, a brief excerpt from a long list compiled by the Centre for Responsive Politics. The lapse for which the senator berated Mr Alito was considerably less clear-cut.

Nice. Those weren’t even the same Kennedy ethical lapses I had in mind as I watched him attempt to slander Alito as a bigot. True, were Alito a bigot or unethical, Kennedy’s character would be irrelevant: in that case Alito’s nomination should be rejected. However, from the hearings it seems clear that whatever he is, Alito is neither bigoted nor unethical. Kennedy’s attempts to characterize him as such should have struck any fair-minded observer as only political grandstanding.

I also had the same impression about the respective abilities of Alito and his senatorial interlocutors as does the Economist‘s writer:

Judge Alito seems shy and bookish—his wife, a former law librarian, says it took him 13 months to ask her out. When he first appeared before the Senate, he was so nervous he was briefly struck dumb. But he soon found his stride, because he clearly knows more about the law than his inquisitors do.

Even a cursory look at his record shows that the sound-bite charges against Judge Alito—that he doesn’t think machineguns should be regulated, that he never sides with blacks alleging discrimination—are simply untrue. His record on the bench is one of cautious rulings and scrupulous deference to precedent.

HT: Professor Bainbridge

But Kennedy’s attempt today to sully Alito’s reputation was saddening. The links between Alito and bigotry or unethical behavior are so tenuous, and the numerous opposite testimonies about him are so clear, that it seems Kennedy is only trying to find excuses to vote against the nomination. I’m not surprised that Kennedy has apparently made up his mind in advance; I’m disappointed that he has no respect for a man’s reputation. He’s willing to destroy Alito’s reputation if it will help advance Kennedy’s political goals. I’m sure Kennedy does not bear Alito any ill will–for him besmirching someone’s character is just another move in the game. That he thinks so, and that we keep electing a man who operates that way, is sad.

CON: Hugh Hewitt argues that we should not question Bush’s nomination, as it could lead to nuclear annihilation! (HT: Volokh Conspiracy and friends).

The of course there is the fact that the president picked her. With a nomination made, I prefer to press to the desired outcome, and support the president and recognize that the defeat of a nominee is a calamitous political consequence, no matter what other people say.

It may come as a shock to people, but I am a Republican, who believes that the care and nurturing of governing majorities of the GOP in the Senate and the House in time of war, and the preparation for a monumental struggle with Hillary in 2008, are crucial –indeed the most important– goals on the table.

We can lose the war. We can suffer terrorist attacks far more devastating than 9/11. Iran is not being deterred, and North Korea continues to be run by an unbalanced dictator with nukes. There are at least hundreds of thousands and probably millions of Islamofascists who would gladly bring WMD to this country and use them in our major cities. I would have preferred a different nominee, and I hope that my short list is the president’s short list the next time a vacancy occurs.

PRO: Professor Bainbridge argues that if we don’t question Bush’s support for Miers, specifically his support of her religious beliefs, it could lead to inter-faith warfare and even the destruction of the Republican party!

There is still an element in the evangelical community that firm believes Catholics are not Christians. (Jack Chick is just the worst of the lot.) The promising theological and political rapprochement between some evangelicals and some Catholics is still quite tenuous. If the people playing the faith card to get Miers confirmed aren’t careful, they could do grave damage to the Evangelicals and Catholics Together project and even the Republican coalition. It was, after all, us weekly Mass attending Catholics who elected George Bush in 2004.

Of all the words written about Harriet Miers, none are more disturbing than the ones she wrote herself. In the early 90’s, while she was president of the Texas bar association, Miers wrote a column called “President’s Opinion” for The Texas Bar Journal. It is the largest body of public writing we have from her, and sad to say, the quality of thought and writing doesn’t even rise to the level of pedestrian.

Of course, we have to make allowances for the fact that the first job of any association president is to not offend her members. Still, nothing excuses sentences like this:

“More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems.”

Or this: “We must end collective acceptance of inappropriate conduct and increase education in professionalism.”

Or this: “When consensus of diverse leadership can be achieved on issues of importance, the greatest impact can be achieved.”

Or passages like this: “An organization must also implement programs to fulfill strategies established through its goals and mission. Methods for evaluation of these strategies are a necessity. With the framework of mission, goals, strategies, programs, and methods for evaluation in place, a meaningful budgeting process can begin.”

Or, finally, this: “We have to understand and appreciate that achieving justice for all is in jeopardy before a call to arms to assist in obtaining support for the justice system will be effective.

Achieving the necessary understanding and appreciation of why the challenge is so important, we can then turn to the task of providing the much needed support.”

I don’t know if by mere quotation I can fully convey the relentless march of vapid abstractions that mark Miers’s prose. Nearly every idea is vague and depersonalized. Nearly every debatable point is elided.

It’s not that Miers didn’t attempt to tackle interesting subjects. She wrote about unequal access to the justice system, about the underrepresentation of minorities in the law and about whether pro bono work should be mandatory. But she presents no arguments or ideas, except the repetition of the bromide that bad things can be eliminated if people of good will come together to eliminate bad things.

Or as she puts it, “There is always a necessity to tend to a myriad of responsibilities on a number of cases as well as matters not directly related to the practice of law.” And yet, “Disciplining ourselves to provide the opportunity for thought and analysis has to rise again to a high priority.”

Throw aside ideology. Surely the threshold skill required of a Supreme Court justice is the ability to write clearly and argue incisively. Miers’s columns provide no evidence of that.

The Miers nomination has reopened the rift between conservatives and establishment Republicans. The conservative movement was founded upon the supposition that ideas have consequences. Conservatives have founded so many think tanks, magazines and organizations, like the Federalist Society, because they believe that you have to win arguments to win political power. They dream of Supreme Court justices capable of writing brilliant opinions that will reshape the battle of ideas.

Republicans, who these days are as likely to be members of the corporate establishment as the evangelical establishment, are more suspicious of intellectuals and ideas, and more likely to believe that politics is about deal-making, loyalty and power. You know you are in
establishment Republican circles when the conversation is bland but unifying. You know you are in conservative circles when it is interesting but divisive. Conservatives err by becoming irresponsible. Republicans tend to be blown about haplessly by forces they cannot understand.

For the first years of his presidency, George Bush healed the division between Republicans and conservatives by pursuing big conservative goals with ruthless Republican discipline. But Harriet Miers has shown no loyalty to conservative institutions like the Federalist Society.
Her loyalty has been to the person of the president, and her mental style seems to be Republicanism on stilts.

So conservatives are caught between loyalty to their ideas and loyalty to the president they admire. Most of them have come out against Miers — quietly or loudly. Establishment Republicans are displaying their natural loyalty to leadership. And Miers is caught in the vise between these two forces, a smart and good woman who has been put in a position where she cannot succeed.

My dad directs a faculty-juried contest of academic papers submitted by undergraduates. Usually he’ll have some students in his seminars evaluate the papers. Then he asks them, “which paper did you like the best?”; they often pick the eventual winner. When he asks them, “which paper do you think will win the contest?” they often pick another, poorly-written paper, a paper that uses the same kind of generalities and empty phrases we see above.

My point is that a lot of people think that kind of writing, because it’s incomprehensible, must be brilliant. I wonder if that’s partly why Bush put Miers on the top of his Supreme Court list.

Actually, what’s made me backtrack the most is the over-the-top criticism of Miers. Even the normally level-headed Professor Bainbridge seems almost to be foaming at the mouth: today he suggested that Bush’s defense of Miers might “do grave damage to the Evangelicals and Catholics Together project and even the Republican coalition.” Maybe it’s time to take a few deep breaths.

What’s gotten up everyone’s dander about Miers?

• The conservative nominee wish list: Just about every conservative had a list of candidates she would like to see nominated to the Supreme Court. It’s safe to say that Miers wasn’t on any of those lists. So we’re annoyed: “why, Bush didn’t even pick my tenth choice!”
• Miers’ jurisprudence: There’s not much to get worked up about here, unless it’s the lack of stuff about which to get worked up.
• The confirmation process: It seems like some conservatives wanted a big fight over principles of jurisprudence during the confirmation hearings. That doesn’t appear very likely to happen with Miers.
• Miers the person: She seems like a wonderful person, teaching Sunday school and all, but she didn’t go to a top law school and hasn’t written on Constitutional issues.
• Bush the person: He’s asked us to trust him regarding Miers, but he’s betrayed our trust so much recently that we have no reason to do so. And what could he possibly know about choosing a Supreme Court nominee?

Let’s look at each of these.

• The conservative nominee wish list: Yes, it’s disappointing that Bush didn’t nominate someone like Michael McConnell, but that’s not so surprising in the history of SCOTUS nominees. As Kevin Martin points out, Justice Thomas wasn’t particularly high on conservatives’ lists, either, at the time of his nomination. And someone on a conservative’s wish list is likely to draw more fire during the confirmation process (see below).
• The confirmation process: I was among those who thought that it was a shame not to defend conservative jurisprudence during the confirmation hearings. It would bring the debate before the public and start an important dialog, I thought. Now I’m not so sure. For that kind of thing to work, you have to have 1) a public that pays attention to nominations and 2) a Congress that puts ideas over ideology. We have neither. The few members of the public who do watch the nominations are already engaged in the dialog about jurisprudence, and odds are they’ve already taken sides. And the Senators sure aren’t going to discuss serious judicial philosophy; in Roberts’ hearings the biggest area of disagreement apparently was over his heart-head volume ratio. So assuming the candidate is one we’d want to be nominated anyway, I see no great advantage to a public fight over her nomination.
• Miers’ jurisprudence along with Miers the person: Here’s where we need more information, information that should come out in the next few weeks. I suspect that Miers may not be the most brilliant jurist, but I’m not convinced that’s a demerit. After all, the most sophisticated analyses often are used to bend the meaning of the law to fit the needs of the moment and the desires of the judge. That’s not what we’re looking for. And I’m not terribly concerned that Miers will turn out to be another Souter, i.e. turning to the left after joining the bench. For good or bad, someone like Souter just wouldn’t have been so loyal to Bush over so many years–if nothing else, we know she’s tenacious.
• Bush the person: This argument gives me the most pause, because President Bush just doesn’t deserve unquestioning trust, though he does have the prerogative to nominate justices.

So let’s wait and see. Let’s hear what Miers has to say during the confirmation hearings. Until then, can’t we give her the benefit of the doubt?

I’ve been reading the Gulag Archipelago on and off for a while. Solzhenitsyn wittily lances the Soviet insanities while recognizing that the problem is not mainly with a particular government but with the human condition.

I credited myself with unselfish dedication. But meanwhile I had been thoroughly prepared to be an executioner. And if I had gotten into an NKVD school under Yezhov, maybe I would have matured just in time for Beria.

So let the reader who expects this book to be a political exposé slam its covers shut right now.

If only it were all so simple! If only there were evil people somewhere insidiously committing evil deeds, and it were necessary only to separate them from the rest of us and destroy them. But the line dividing good and evil cuts through the heart of every human being. And who is willing to destroy a piece of his own heart?

During the life of any heart this line keeps changing place; sometimes it is squeezed one way by exuberant evil and sometimes it shifts to allow enough space for good to flourish. One and the same human being is, at various stages, under various circumstances, a totally different human being. At times he is close to being a devil, at times to sainthood. But his name doesn’t change, and to that name we ascribe the whole lot, good and evil.

Socrates taught us: Know thyself!

Confronted by the pit into which we are about to toss those who have done us harm, we halt, stricken dumb: it is after all only because of the way things worked out that they were the executioners and we weren’t.

Gulag Harper & Row, 1973 page 168

But whereas one can’t lay all the blame at the feet of social institutions, neither is an unjust society simply the fault of the individuals it comprises. A particular culture can encourage or discourage various virtues and vices. The problem with the Soviet culture, Solzhenitsyn seems to suggest, is that it deliberately unmoored itself from any cultural tradition. The result was that when it came time to make legal rulings or set public policy, those in charge acted on what was most expedient for them at the moment. Solzhenitsyn quotes from a 1919 trial transcript:

Accuser: “This tribunal is not supposed to concern itself with any nondescript criminal actions but only with those which are counterrevolutionary. In view of the nature of this crime, I demand that the case be turned over to a people’s court.”

Presiding Judge: “Ha! Actions! What a pettifogger you are! We are guided not by the laws but by our revolutionary conscience!”

Gulag Harper & Row, 1973 page 304

Note how the judge glosses arbitrariness and expediency as a “revolutionary conscience.” The October Revolution overthrew not just those in power but centuries of Russian legal tradition, tradition which had ended the death penalty and restricted torture. “Revolutionary conscience” allowed the Soviets to sneak them back in.

The court must not exclude terror. It would be self-deception or deceit to promise this, and in order to provide it with a foundation and to legalize it in a principled way, clearly and without hypocrisy and without embellishment, it is necessary to formulate it as broadly as possible, for only revolutionary righteousness and a revolutionary conscience will provide the conditions for applying it more or less broadly in practice.

With Communist greetings,
Lenin

Gulag Harper & Row, 1973 page 353

Solzhenitsyn comments:

With the exception of a very limited number of parliamentary democracies, during a very limited number of decades, the history of nations is entirely a history of revolutions and seizures of power. And whoever succeeds in making a more successful and more enduring revolution is from that moment on graced with the bright robes of Justice, and his every past and future step is legalized and memorialized in odes, whereas every past and future step of his unsuccessful enemies is criminal and subject to arraignment and a legal penalty.

Gulag Harper & Row, 1973 page 355

I’m not sure that’s exactly right. Take the American Revolution. Although the United States overthrew the British rule, it did not abandon the authority of British legal precedent, some of which is cited still today. Moreover, to justify their actions many of the the American revolutionaries appealed to what they saw as over-arching principles in natural law, law which theoretically included the British as well as the Americans. So while the Americans revolted and seized power, they didn’t try to create legal principles from whole cloth, as did Lenin. And I don’t think the United States is exceptional in that regard. The Soviet Union invited the kind of injustice Solzhenitsyn describes, not simply because its founders overthrew the government but because they overthrew moral and legal authority as well. By trusting in “revolutionary conscience,” they allowed the sinful human heart alone to cut the public line between good and evil, with terrible consequences.

Americans continue dying in Iraq, but their mission creeps steadily downward. The nonexistent weapons of mass destruction dropped out of the picture long ago. Now the United States seems ready to walk away from its fine words about helping the Iraqis create a beacon of freedom, harmony and democracy for the Middle East. All that remains to be seen is whether the White House has become so desperate for an excuse to declare victory that it will settle for an Iranian-style Shiite theocracy.

The Iraqis seem to be on the way to making Islam the supreme law of the land. And ironically, two myths of Western culture are what have led American leaders to be so blithe to this turn of events: a distorted multiculturalism that thinks every way of thinking is worthwhile and an overconfidence in the democratic process.

The distorted multiculturalism prevents us from telling the Iraqis that some of their ideas are unwise or wrong, and our overconfidence in democratic elections fools us into thinking that a just political system will spring forth even from a culture devoid of a just political tradition.

Whether or not he was right to invade Iraq, President Bush initiated a grand political experiment that requires more commitment and time (educating the Iraqis and shepherding the formation of their government) than any of our political factions seems willing to give.

By now it is clear that Roberts is no crazed ideologue intent on overturning precedents willy-nilly. He appears to be a thoughtful conservative who values and respects the social stability provided by the law’s slow evolution.

In other words, he’s not going to overturn the precedents the editors favor, those cases that themselves overturned precedent. When our judges overturn precedent, that’s the law’s slow evolution. When your judge overturns precedent, that’s a crazed, willy-nilly ideologue.