Daily Archives: October 6, 2005

A vote for decency in the Senate

And no, I’m not talking about new restrictions on Internet porn.

According to the Washington Post:

The Senate defied the White House yesterday and voted to set new limits on interrogating detainees in Iraq and elsewhere, underscoring Congress’s growing concerns about reports of abuse of suspected terrorists and others in military custody.

Forty-six Republicans joined 43 Democrats and one independent in voting to define and limit interrogation techniques that U.S. troops may use against terrorism suspects, the latest sign that alarm over treatment of prisoners in the Middle East and at Guantanamo Bay, Cuba, is widespread in both parties. The White House had fought to prevent the restrictions, with Vice President Cheney visiting key Republicans in July and a spokesman yesterday repeating President Bush’s threat to veto the larger bill that the language is now attached to — a $440 billion military spending measure.

I am a supporter of the War on Terrorism, and I agree with Bush’s statement today that in many ways “this fight resembles the struggle against communism in the last century” (except that we are facing a less powerful but more elusive, more unpredictable enemy). I also believe our mission in Iraq, however mismanaged, may yet do more good than harm. But we cannot, in this struggle, allow ourselves to lose sight of our own principles and moral standards. That the Bush Administration is vigorously resisting a bill that would prohibit “cruel, inhumane, and degrading treatment or punishment” of prisoners in U.S. custody, on the grounds that it “limits the President’s ability to conduct the War on Terror,” is disturbing – both morally and public relations-wise.

I’m proud of the fact that the amendment was overwhelmingly passed across partisan lines (and I applaud Sen. John McCain, a former Vietnam POW, for leading the charge). I’m not proud of the fact that it was needed.

See more from Glenn Reynolds and Andrew Sullivan on the subject.

A resounding silence from Michelle Malkin and National Review’s The Corner, so far.

Just now on Fox News, Brit Hume has referred to the amendment as intended to ensure that “captured terrorists” are not mistreated. This is loaded language. Perhaps all or nearly all the prisoners at Guantanamo fit that description, but many of the Iraqi detainees are no more than suspects, or just people who happened to be in the wrong place at the wrong time.

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Miers: The Gender Card

Besides faith, the other big and obvious issue is gender. One would have to be a Martian not to know that Miers has been selected for the Supreme Court seat because she’s a she (and even the smarter Martians probably have it figured out by now). Even many of the conservatives who have been sharply critical of the pick because of Miers’s lack of both conservative and intellectual credentials have stressed that there are many better-qualified women (see examples here, here and here). The bottom line, of course, is that after filling the vacancy left by Sandra Day O’Connor with John Roberts, Bush was under substantial pressure to nominate another woman to Rehnquist’s now-vacant seat.

The pro-Miers Independent Women’s Forum is perhaps alone in arguing that Miers did not a “woman’s seat” on the high court. Here’s the IWF’s reasoning:

In originally nominating John Roberts to replace Justice O’Connor, the President laid to rest the notion that any one sex or ethnic group owns a particular seat on the Court. Having established that principle last summer, and having elevated John Roberts to be chief justice, the President was free to make this selection free from concerns of gender politics.

But that’s rather peculiar logic. Just because Bush didn’t officially make O’Connor’s seat a “woman’s seat” (decorated with pink frills and bows, perhaps?) doesn’t change the fact that if Miers is confirmed, the gender composition of the Court will be the same as it was before. If anything, the Roberts nomination made the concerns of gender politics more pressing.

So this was clearly an affirmative action pick, and one might argue that it illustrates the worst of affirmative action: identity over qualifications. (In this case, perhaps, an identity twofer: a woman and an evangelical.) In this case, though, I’m not so sure that applies. While Miers’s gender clearly mattered, it is quite true that there were other, well-qualified conservative women to choose from. The deciding factor was personal loyalty, otherwise known as cronyism — just as it would have been with Bush’s other frequently mentioned possible choice, Alberto Gonzalez.

I’m not sure as yet what I think of the gender politics of the Miers nomination. I don’t believe in quotas and I don’t believe that women bring some uniquely female perspective to jurisprudence, but I’d be lying if I said that I’m not in the least glad that the number of women on the Supreme Court won’t be dropping to one. To some extent, I share Kate O’Beirne’s disappointment:

When John Roberts was nominated his credentials and his knowable judicial philosophy spoke for themselves. In making the case for Harriet Miers, President Bush says that he’s certain she will vote on the Court the way he’d want her to. This is striking a blow for women’s achievement?

Good point. On the other hand, men with modest credentials have been appointed to the Supreme Court before, and maybe it’s a sign that women have arrived when a mediocre woman in public life has as much of a chance at advancement as a mediocre man.

Curiously, or perhaps not, the nastiest gender-based swipe at Miers so far has come from a liberal feminist, Times Select prisoner Maureen Dowd. MoDo writes:

I hope President Bush doesn’t have any more office wives tucked away in the White House.

There are only so many supremely powerful jobs to give to women who are not qualified to get them.

The West Wing is a parallel universe to TV’s Wisteria Lane: instead of self-indulgent desperate housewives wary of sexy nannies, there are self-sacrificing, buttoned-up nannies serving as adoring work wives, catering to W.’s every political, legal and ego-affirming need.

So Bush’s male friends are just cronies, but his female friends are “self-sacrificing, buttoned-up nannies” and “adoring work wives.” Sexism, anyone?

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Miers: The faith card

In recent years, the religious faith of judicial nominees has become a big issue. Some conservatives have accused Democrats of bias against “people of faith” and have made the argument — absurd, in my opinion — that it is “religious bigotry” to question an appointee’s political/ideological views if they happen to be faith-based. (Would that principle extend to a judge who opposed the death penalty or military conscription based on religious convictions?) When John Roberts was nominated to the Supreme Court and some critics raised the question of whether his strong Catholic faith would affect his ability to rule impartially on issues involving Catholic morality (read: abortion), religious conservatives cried foul and argued that it was unfair and “chilling” to presume that Roberts’s decisions would be governed by his personal religious views rather than law and constitutional principle.

Well, now we have this:

To persuade the right to embrace Ms. Miers’s selection despite her lack of a clear record on social issues, representatives of the White House put Justice Hecht on at least one conference call with influential social conservative organizers on Monday to talk about her faith and character.

(Justice Nathan L. Hecht, now on the Texas Supreme Court, is a former colleague of Miers’s who was apparently close to her at the time of her conversion to born-again Christianity.)

The article goes on to say:

Some evangelical Protestants were heralding the possibility that one of their own would have a seat on the court after decades of complaining that their brand of Christianity met condescension and exclusion from the American establishment.

In an interview Tuesday on the televangelist Pat Robertson’s “700 Club,” Jay Sekulow, chief counsel of the Christian conservative American Center for Law and Justice, said Ms. Miers would be the first evangelical Protestant on the court since the 1930’s. “So this is a big opportunity for those of us who have a conviction, that share an evangelical faith in Christianity, to see someone with our positions put on the court,” Mr. Sekulow said.

As David Bernstein puts it at The Volokh Conspiracy: “[T]he president sends his minions to drum up support based on her personal religious philosophy.” But if Republicans can use Miers’s personal faith to reassure the base that she will vote “the right way” on social issues, then why can’t those who don’t agree with that agenda be suspicious of her for the same reason?

Mind you, based on what we currently know, Miers doesn’t seem likely to legislate her personal morality from the bench (her favorable attitude toward adoptions by same-sex couples is a case in point). She strikes me as — for better and worse — a pragmatist first and foremost. What interests me, however, is the double standard. I’m reminded of an old Soviet joke: A petitioner with some grievance goes to the Kremlin and demands to see Lenin. “Are you crazy?” an official tells him. “Lenin’s been dead for a long time!” “I see,” says the petitioner. “So when you need him, he lives forever — but when I need him, he’s dead!” (“Lenin lives forever” was a ubiquitous Soviet propaganda slogan.) Similarly, it seems, a nominee’s faith can be relevant when it’s convenient for the Republicans, but not when it’s convenient for the Democrats.

Sorry, guys. If it’s sauce for the conservative goose, it’s sauce for the liberal gander.

Update: A reader at The Volokh Conspiracy makes the same point; David Bernstein agrees.

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