Let me begin with an apology- it was unfair for me to diss SMU law like that. Not fair, and I do regret it. It was written out of frustration and bewilderment at a nomination that is very undeserved, though not for her alma mater. Moving on...
Salon ran a big piece today, pointing out that Harriet Miers comes to the Court with significant experience representing corporate interests. Although she has had vitually no exposure to the issues that social conservatives care about most deeply, she has an established track record representing big business, particularly defending against consumer class actions. Her specialty- defeating class certification. Since the Republicans have generally sided with big business and and against consumers this could explain everything.
Salon notes "Bush's Miers pick... points to an intriguing tension within the Republican Party, between its ideology-driven right-wing base and its constituency of conservative business leaders, who are eager to develop stem-cell technology, and hire and promote talented employees, whether they be gay, lesbian or straight. Some observers say the Miers nomination follows a pattern Bush established back when he was governor of Texas, picking judges that reward corporate-friendly supporters and special interests."
This is not too different from what I said in my first post here. "Fiscal Conservatives- socially liberal, anti-wasteful spending, and well-educated- are on the way out. The Republicans are increasingly the party of hand-wringing moralists and evangelical Christians. The [White Working Class] fits very well into the newRepublican paradigm. Fiscal Conservatives do not, and they are ripe for the picking."
The gnawing right-wing dissatisfaction with Harriet Miers' ascension shows that what the nutball wing of the GOP wants more than anything else is to get their way on their terms. It is not enough that Miers belongs to a right-of-Falwell church, or that she will predicatbly vote their way- they wanted someone who was openly and avowedly a religious conservative, someone who cut their teeth defending Operation Rescue for all their trespassing citations, someone who will not only allow prayer in school, but will also allow it to be involuntary.
What they wanted was a showdown on judicial philosophy. What they got was a yes-person. It's the Steve Spurrier school of thought- don't just win, when you can win by 50 and embarass the other side.
This is another example of the GOP managing to frame the debate in such a way that the left gets put on the defensive. It is now a given to most people that Republican judges "strictly construe" the Constitution, while Democratic judges "legislate from the bench." What most conservatives don't realize is that many of the rights they take for granted- like the right to raise one's children as they see fit, or to marry the person of your choice- were judicially recognized. Legislatures are often wrong, no matter how popular their decisions might be.
Of course, conservatives just as frequently "legislate from the bench," just on different issues- how else can one explain 10th or 11th Amendment jurisprudence. The difference, of course, is that those amendments deal with things in a more or less procedural way- it's not that you aren't entitled to relief, Mr. Plaintiff, it's just that you can't come by it this way. The Court has expanded those Amendments far beyond their textual or logical limits. But since babies don't die as a result, no one cares.