Man Without Qualities


Monday, October 10, 2005


Which Way, Harriet?

Many of the concerns about Harriet Miers are based on the assumption that an articulated and coherent constitutional vision - which Ms. Miers is said not to possess - offers better assurances against what might be called "message drift" than generally "conservative" constitutional views. David Frum believes that Ms. Miers will remain a conservative justice for a while, "But then the Bushies will have gone home, and she will develop new friends, and then the inevitable tug to the left may prove irresistible." Such message drift marked (I would say "marred") the tenures of Justices Blackmun and O'Connor, for example.

There is surely something to this thought, but it has its limitations, as a review of the career of Justice Frankfurter indicates. Frankfurter was not exactly without intimate familiarity with the constitution before his appointment, and he was a famous liberal. But things didn't really turn out that way:
Despite his liberal political leanings, Frankfurter became the court's most outspoken advocate of judicial restraint, the view that courts should not interpret the fundamental law, the constitution, in such a way as to impose sharp limits upon the authority of the legislative and executive branches. In this philosophy, Frankfurter was heavily influenced by his close friend and mentor Oliver Wendell Holmes, Jr., who had taken a firm stand during his tenure on the bench against the doctrine of "economic due process". Frankfurter often cited Holmes in his opinions. In practice this meant that he was in general willing to uphold the actions of those branches against constitutional challenges so long as they did not "shock the conscience". Later in his career, this philosophy frequently put him on the dissenting side of ground-breaking decisions of the Warren court.
On the Court, Felix Frankfurter, noted liberal, became Felix Frankfurter, noted restrainer and conservative. To some extent his growing apparent "conservativism" was the result of changing times and a changed Court. But there was more to it than that. More than a few of his fellow liberals were shocked at what happened to Justice Frankfurter in his years on the Court.

For the sake of clarity, I have not yet made up my mind about Harriet Miers' nomination, and the above comments are not intended to persuade anyone that she should be confirmed. At this point, I am interested in weighing the various arguments made for or against her - including the limitations of those arguments.

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