HARRIET MIERS OUTSHINES BORK: Unlike the Patron Saint of Originalism, Miers Will Defend Our Freedom

by Richard Poe
Tuesday, October 4, 2005

6:02 pm Eastern Time

Judge Robert H. Bork has come to represent in many conservative minds the gold standard of legal sagacity against which provincial upstarts such as Supreme Court nominee Harriet Miers must be weighed. In truth, however, Bork provides a poor example of conservative jurisprudence. Even as simple a phrase as, “the right of the people to keep and bear arms, shall not be infringed” has long confounded Judge Bork. Harriet Miers suffers no such confusion.

Following a July 1, 1992 incident in which a crazed gunman slew two lawyers and two judges in a Texas courtroom, Miers wrote in the Texas Lawyer, “How does a free society prevent a man from entering a courtroom and opening fire?” (hat tip, David Kopel)

The very liberties we hold dear, such as, “access to public places, the right to bear arms and freedom from constant surveillance” make such crimes possible, noted Miers. Yet, she concluded, “We are not willing to sacrifice these rights because of the acts of maniacs.”

By contrast, Robert Bork dismisses the Second Amendment as a useless relic of bygone days. In his 1996 book Slouching Towards Gomorrah he writes, “The Supreme Court has consistently ruled that there is no individual right to own a firearm” – a statement which is demonstrably untrue. Bork also writes:

“The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government. Now that the federal government has stealth bombers and nuclear weapons, it is hard to imagine what people would need to keep in the garage to serve that purpose.”

Perhaps if Judge Bork had found himself besieged by gangs in post-Katrina New Orleans, he might have gained a healthy appreciation for the utility of SKS rifles and AR-15s in modern life. How much more would he have appreciated such hardware, had he found himself surveying the smoking ruins of an American city flattened by nuclear terror attack, devoid of police and swarming with brigands.

But Judge Bork is one of those men who cannot “imagine” what he has not personally experienced. And so the “brilliant” jurist discarded James Madison’s handiwork as casually as he would a soiled Kleenex.

If this is brilliance, how exactly should we define stupidity?

In today’s American Thinker, Thomas Lifson exposes the snobbery which underlies so many conservative denunciations of Harriet Miers. He writes:

“Thus we hear conservatives sniffing that a Southern Methodist University legal education is just too non-Ivy League, adopting a characteristic trope of blue state elitists. We hear conservatives bemoaning a lack of judicial experience, and not a single law review article in the last decade as evidence of a second rate mind.”

The outrage certain conservative pundits have displayed in the face of President Bush’s decision to elevate Harriet Miers over their Ivy League classmates may be understandable.  But it is not helpful. Nor is it admirable.

by Richard Poe
October 4, 2005 06:02 PM ET

Cross-posted from 10.04.05


54 Responses to “HARRIET MIERS OUTSHINES BORK: Unlike the Patron Saint of Originalism, Miers Will Defend Our Freedom”


Check out what others are saying about this post...
  1. Mr. Beamish says:

    If she were truly an originalist, she’d say that all gun laws are unconstitutional.

  2. Richard Poe says:

    I don’t know if she would go that far. Probably not. But my point is that she is better than the sainted Robert Bork.

    So why all the bellyaching from conservatives? I think it’s just snobbery.

  3. tazzmax says:

    Mr. Poe, that’s an excellent article and I sure as hell didn’t know that Bork felt that way about the 2nd. amendment! Any one who wants to take my guns is on my s–t list!

    I certainly hope you are correct on Miers! I totally reject her concept of making SCOTUS decisions based on foreign laws — if she really said it! And I have a problem with gay adoption which I understand she supports! I guess we’ll find out, one way or another, huh?

  4. Publius says:

    Bork didn’t in any way deserve what happened to him, but he is nuanced.

  5. tazzmax says:

    And hey Richard, I think you’re dead on about snobbery! Those a-hole elites of the N.E. want to control who runs the country and they don’t like the thought that some outsider may upset their little apple carts! I think the elites are a closed fraternity that want complete control.

  6. Mr. Beamish says:

    I’d say there’s a fairly large constructionist “farm team” of federal judges still in the system appointed by Reagan and GHW Bush that President Bush could have promoted.

    Now we’re stuck with a nominee that Senator Harry Reid (Nevada-D) loves.

  7. redfordoutpost says:

    And there’s the problem. This woman isn’t just a judicial blank slate, there almost no slate at all. And if she’s got Haryy Reid’s endorsement…

  8. RedBeard says:

    Yeah, that scared me, hearing that a leftie like Reid voiced approval. But R.P.’s post is encouraging. Besides, there is so much dust in the air today that we really can’t see this nominee clearly. Need to wait a few days and see who she really is.

  9. InRussetShadows says:

    I’m disappointed in her selection — not because of what Harry Reid says or doesn’t say — screw him. Nor do I care about her legal education overmuch. She has a law degree and has experience in the field. That’s enough. What bothers me is that Bush could have picked someone steeled and proven to be a strict constructionist. Why would you keep firing a .22 when you’ve got a howitzer in your basement? Sheesh.

  10. nanc says:

    mr. poe and mr. redbeard – the arch-enemy is back at the article on nimmo – using two names this time and much more dangerous and threatening.

  11. peedoffamerican says:

    Ever think that Harry Reid could be trying to use reverse Psychology, since their latest polling shows that Americans are tired of filibustering. He could be supporting her in hopes that republicans will then vote against her. By the way, her political philosophy changed once she became born again.

  12. nanc says:

    most people i’ve known who were born again have changed political positions – it is a strange phenomenon. how does one explain being a republican and then being born again. are we more susceptible to the G-d thing? more research needs to be done. i, however will reserve my feelings on ms. miers until i find out more about her.

  13. Mikie says:

    I read on Drudge that she once owned a .45 pistol, had it for personal protection. Doesn’t sound like a wimp. I doubt if that dopey Souter ever owned a gun, even if he did live up here in NH. I’m with you, nanc, I will withhold judgment until I hear more.

  14. nanc says:

    i haven’t had a chance to see what ann coulter said about her today, but feel she may have been right about roberts – time will tell.

  15. Publius says:

    Ann is not a happy camper.

  16. peedoffamerican says:

    I think Ann needs a hug. ANN, ANN, can you hear me? I’ll take you camping ANN.

  17. Richard Poe says:

    Mr. Beamish writes: “Now we’re stuck with a nominee that Senator Harry Reid (Nevada-D) loves.”

    If Harry Reid really loved Miers, why would he say so publicly, so early in the game? That doesn’t make sense strategically.

    The smart move would be to put up a tough front, pretend to oppose Miers, then grant support to her only grudgingly, after a grueling interrogation, right before she comes up for a vote.

    That way, the Dems would get points for making a concession. They could say, “Well, we didn’t like Miers, but we voted for her anyway, just to be reasonable, so now you owe us one.”

    By announcing right out of the starting gate that he likes Miers, Reid is giving away all his bargaining chips. He’s relinquishing the opportunity to create the illusion that the Dems are granting a concession to Republicans, and are therefore owed something in return.

    I don’t buy it. The Dems don’t give away bargaining power, when they have it.

    The only explanation that makes sense is that Reid and company have calculated that they can gain more by pretending to like Miers than they can by opposing her.

    They can’t stop Miers because their opposition researchers couldn’t come up with any personal dirt on her. So the next best thing is to pretend they like her, thus energizing conservative Bush-haters and sowing division in our movement.

  18. Richard Poe says:

    While we’re on the subject of conservative Bush-bashing, here’s an interesting exchange from the threads of

    Common Tator: The bash Bush crowd is no different from the bash Reagan crowd of 20 years ago.

    AHerald: Oh, goodness how true. Still remember the intense caterwauling from critics on the Right about the budget deficit, growth of government entitlements, the growing US trade deficit (and Reagan’s claim that it was a sign of American strength not weakness), failure to kill off Dept. of Education, his “protectionist” trade policies (Canadian lumber tariffs and Japanese electronic tariffs), his pro-free trade policies (his vision of NAFTA), and Reagan’s “capitulation” to Gorbie on nuke reduction–going soft on Commies because he was in trouble over Iran-Contra … As Zell Miller says, I could go on and on and on.

    Many conservatives today compare Bush unfavorably to Reagan, but how many of today’s Bush bashers recognized Reagan’s greatness while Reagan was still president? Very few, I think.


  19. peedoffamerican says:

    Richard Poe,

    Re: #17, point that I made in #11, although you fleshed it out immensely and much more eloquently. Guess that is why you get the big bucks.

  20. nanc says:

    the only thing worth repeating that john wayne ever said, “never waver, never waffle.” loved reagan and love bush, but i feel this may be a bad nominee. call it women’s intuition. we’ll know more later. fortunately or unfortunately much later.

  21. peedoffamerican says:

    I liked this quote from John Wayne better, “Never say your sorry mister, It’s a sign of weakness!”.

  22. RedBeard says:

    My favorite Duke Wayne quote: “I won’t be wronged. I won’t be insulted. I won’t be laid a hand on. I don’t do these things to other people, and I require the same from them.”

  23. Richard Poe says:

    nanc writes: “the only thing worth repeating that john wayne ever said, `never waver, never waffle.'”

    I agree with John Wayne.

    In voting for George W. Bush, I delegated to him a number of powers, among them the power to act as my representative in the appointment of Supreme Court justices.

    Trying to micromanage President Bush or second-guess him in his execution of that duty would be a sign of waffling on my part, an indication that my confidence in him is wavering.

    Selecting Supreme Court justices is the president’s job, not mine. I trust him to do his job. He has my full confidence. He has earned it.

  24. nanc says:

    the voice of wisdom has spoken. you are right mr. poe, but it seems we are all in hopes he will perform well for the people who support him. i’m sure, you, like the next person, do not like to be let down. no one is perfect. and he cannot please all the people all the time.

  25. Uriah says:

    Tazzman said something about her supporting using foriegn law to interpret our laws. Could you post some references for that? I’m very disturbed.

  26. longtall says:

    Reid is embracing Miers, and the larger liberal establishment is standing down for now, so as to sit back and watch the GOP tear itself to pieces. If social conservatives choose to oppose Miers in earnest this thing could get rather messy withtout any help from the Dems. She will still get confirmed, but the internecine squabble is expected to weaken the GOP.

    That’s the plan anyway, who knows if it will work.

  27. Palmetto says:

    That foreign law thing bothers me too.. but I thought that was Sandra O’Conner who believed that.. just am having a hard time concerning Miers. Very happy with Roberts though.

  28. Mr. Beamish says:

    Richard Poe writes:

    “In voting for George W. Bush, I delegated to him a number of powers, among them the power to act as my representative in the appointment of Supreme Court justices.

    “Trying to micromanage President Bush or second-guess him in his execution of that duty would be a sign of waffling on my part, an indication that my confidence in him is wavering.

    “Selecting Supreme Court justices is the president’s job, not mine. I trust him to do his job. He has my full confidence. He has earned it.”

    I’m not too far from you on this, Mr. Poe. But John Kerry picking Supreme Court justices only made his plan to equip the Iranians with free bomb-grade uranium even that much more detestable.

    I understand we’re gonna have to go with the nominations we have, not the nominations we want.
    But tell me you wouldn’t have raged if he had nominated Bill Clinton.

    Sorry if I upset your stomach just now.

  29. tazzmax says:

    My favorite John Wayne saying was—- You don’t have a gun Pilgrim!

    I read on W.N.D.{world net daily} that Ms.Miers had made a statement sometime back that International laws should be used as a guide-line for our laws. I don’t remember exactly if she meant SCOTUS but it made the red flags fly for me! Check it out on the wnd archives, it was a recent article. Hey, I support Bush on most things, but I sure as hell hope he’s right on this one! If this is a sleeper, we can kiss our asses goodbye. He knows more about it than we do, I suppose.

    Speaking off topic here, I must say I am totally against his immigration policy of do nothing. It pissed me off that he called the Minute-Men vigilantes! These men are trying to seal our borders from illegals and who knows who and the feds twiddle their thumbs! What’s their motive?

  30. Publius says:

    A lot of people are nervous about this nomination, tazzmax and I agree completely with your last paragraph.

  31. tazzmax says:

    Hey, this lady may be the cats’ meow, but I’m sure as hell gonna reserve my judgement! Even another O’conner will get us nowhere. And heaven forbid another Souter or GINSBURG!!!

  32. Stop The ACLU » Blog Archive » Miers Better Than Bork? says:

    […] Go read this, to see where Miers has already demonstrated one issue where she is more conservative than the sainted Bork. [Comments_(0)] [Printable_Version] [Permalink] [Trackback_URI] [Trackback URI] right click+copy shortcut [RSS feed for comments on this post.] […]

  33. tazzmax says:

    Publius, I’m just a layman, but I think I have enough marbles to realize that this is a watershed deal; America is in serious trouble and if we don’t get a grip on them NOW, we are going to pay dearly later! I don’t quarrel about Iraq,{although I would have thought the gloves should have been taken off long ago},I think that will eventually be solved. I guess what I’m trying to say is that we have serious problems right here at home starting with SCOTUS!!! Read the book —-Men in Black. Scary!

  34. Publius says:

    You never know tazzmax, she might be the best thing to come along since sliced bread. 😉

  35. Rove on Vacation says:

    Just a cynical guess: Miers is a sacrificial lamb. She’ll be bounced for being evangelical, and Bush will have appeased his base by propping her up.

  36. Rightminded says:

    John Roberts is a devout Catholic; Pope Benedict is at this moment preparing Catholic doctrine that will refuse communion to influential Catholics if their decisions promote infanticide in any way; HARRIET MIERS believes life begins in the womb; “W” like me, believes with all his heart and soul, “that even the innocent of the innocent, unwanted have worth;” “W” trusts Harriet Miers!



    God Bless you “W”! And to hell with Harry Reid, and every jack one of you who minimize the importance of this basic fundemental, LIFE!

  37. nanc says:

    i loved when w repeated “i do not have a litmus test”. as a follower of Christ, i know for a fact that we all have a litmus test. it is difficult to shake. everyone has a litmus test in all areas of life. just examine your life and tell me you don’t.

    i agree with r.o.v. on #35 above.

    yes, G-d bless w. may he go down in history as one of our best presidents.

  38. Publius says:

    peedoff, get in line. re:#16

  39. RedBeard says:

    Too bony. 😉

  40. RedBeard says:

    As a staunch conservative, I do not want a Supreme Court justice who rules as a conservative. I want one who rules according to the Constitution. A constitutionalist and a conservative may sound like the same person, but there is a difference.

    Chief Justice Roberts summed it all up when he answered a Senate panel question about whether or not he would support “the little guy.” Roberts answered that if the law says the little guy wins, he will win. And if the law says the big guy wins, he will win. In other words, Roberts understands the rule of law and the supremacy of the Constitution over personal beliefs.

    On the subject of abortion, a constitutionalist will be on the right side of the issue simply by following original intent. There’s no need for a justice who has a pro-life judicial agenda. In fact, that would scare me, because if one political agenda is allowed, even if I agree with the outcome, then what is to stop a wrongheaded agenda from being accepted?

  41. Publius says:

    RedBeard, A conservative and constitutionalist may well be one and the same, but even if so, that is beside the point. As you said a Justice of the High Court should be first and foremost a constitutionalist, making his judgements based on original intent regardless of personal beliefs or ideology. Using the Federalist Papers and any other of the Founders pamphlets, writings and speeches to guide them in determining original intent. The Constitution was written for two purposes, to create a federal government and to limit the power of that government. They considered government a necessary evil. The Federal Government has not one single bit more rights or power than is enumerated it in the Constitution. They created a system of ‘Federalism’, meaning the various states were to have a high degree of autonomy and sovereignty. A Bill of Rights was added at the insistence of people like Patrick Henry and George Mason who said they would not support the ratification of the Constitution unless it was added. James Madison and Alexander Hamilton argued against a Bill of Rights on the very basis that the Federal Government had no more power than given it and all other rights were reserved to the states or the people. They maintained that to add a Bill of Rights could later be said to imply, by nefarious people, that rights not included were not meant to be rights at all. So the great bulk of our ‘rights’ or ‘freedoms’ are left to the states or the people, the degree and scope of which is to be determined based on the sensibilites of the citizenry. So when you hear liberals argue that the Constitution is outdated, not being able to address present day “situations” that the Founders couldn’t have imagined, that therefore Jurists are justified in practicing judicial activism (tyrannically re-writing the Constitution) realize it is obfuscation. Not only did the Founders provide a legal means of amending the Constitution if that needs to happen, (which requires a consensus of the citizenry) but most of the “new situations” fall in the public domain anyhow. For example abortion and same-sex marriage. The Supreme Court should have never taken the abortion case for review, since nowhere does the Constitution address abortion. It should have been up to the states or the people to decide, or if national sympathies were strongly enough pro-abortion then an attempt to amend the Constitution to provide for the protection of abortion should have occurred. This is an example of the conundrum the left faces, since we know that wouldn’t have been successful, a proposed amendment needing 2/3 majority of Congress to send it to the states where it requires 3/4 majority of the states or the people to effect ratification. This is why it is so important for the left to have judicial activists nominated and appointed to judgeships.

  42. Publius says:

    Should have been: So the great bulk of our ‘rights’ or ‘freedoms’ are left to the states or the people, the degree and scope of which is to be determined based on the (COLLECTIVE)sensibilities of the citizenry.

  43. RedBeard says:

    The Founders were wise men indeed.

    It almost appears that Congress, the courts and the exectutive branch have never read the 10th Amendment, nor the Federalist Papers, nor any of the other writings of the great men.

    I recently wrote to my representatives, asking them to tell me what the 10th Amendment meant and how they intend to honor it with their votes. No replies have been received. Arrogant b******s, all of them.

  44. tazzmax says:

    Very well said, Publius! You said it all!

  45. tazzmax says:

    RedBeard, don’t hold your breath until you hear from them either! You made a very good point there. We are no longer represented by those bastards in Washington.

  46. Madzionist says:

    Richard, with all due respect, I am in total disagreement with you on this one. Her contributions to Al Gore and the DNC back in ’88 alone are enough to convince me that this nominee is not to be trusted as a conservative. In addition, her being devoid of any experience as a judge, her lack of background in constitutional law, and even, at the minimum, courtroom experience of some kind rather than just being limited to corporate law practice, makes her highly underqualified for this post.

    Blind faith in Bush be damned. This nominee stinks, as far as I’m concerned. It’s particularly galling that he’d pick this crony on the heels of an A+ selection like Roberts.

    My grade for her as a nominee: D-

    BTW, updated my blog on this topic. See: MZ’s Political Quiz

  47. Mr. Beamish says:

    I hope you’re right, Rightminded.

  48. Rightminded says:

    So do I Mr. B!

  49. Publius says:

    RedBeard, do you know that Klinton made an executive order making the 10th Amendment null and void? He said: “if the individual rights granted in the Constitution inhibits the governments ability to govern, then we have to look at limiting some of those rights.”

  50. RedBeard says:

    Slick Willie has a point. The lefties can’t attend to their agenda if inconveniences like the Constitution, state sovereignty and individual rights keep getting in the way.

    Btw, I’m looking forward to Louis Freeh’s new book. He may be a marked man, if some of the anti-Clinton quotes I’ve seen are accurate. I hope he has a good lawyer and an effective bodyguard. 😉

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