Good Boy!

Shorter Fred Barnes: If it feels this good being used, you can keep on using me until you use me up.

This article does tell us what Bush’s strategy of invoking the Souter bogeyman by reassuring people that she “won’t change” may prove to be very effective. While I’m happy for conservatives to believe this, I think this is an odd misunderstanding of the “problem” (from their perspective) with Souter. He has, perhaps, changed a little bit in his tenure on the Court, as he has further grappled with federal constitutional issues. But, really, I don’t think he’s changed to any significant degree. Souter has always been an incrementalist moderate like his hero, the second Justice Harlan; there was never any chance he was going to start voting to routinely overturn popular decades-old precedents. (And, of course, Harlan thought that the Connecticut ban on contraception was the most flagrantly unconstitutional law he had seen in his time on the bench, and he wrote what some people consider to be the most powerful case for its unconstitutionality. I don’t think there’s any evidence that Souter ever opposed the Griswold/Roe line of cases.) And, of course, Casey came after Souter had been on the bench for less than 3 years–how much can you “evolve” over that time? The problem with Souter, if you’re a reactionary, is not that he changed but that he never agreed with you in the first place, and this the danger of appointing judges with little track record in federal constitutional cases. There are certainly instances of judges changing over time–Blackmun certainly did. But, again, with respect to the case Blackmun is most famous for, I don’t think there was significant “evolution”; if there’s any evidence that he ever thought that a blanket bans on abortion was constitutional, I haven’t seen it. It’s not that Nixon screwed up, it’s that–like, I suspect, the first Bush, who was a pro-choicer until he ran for president–he didn’t particularly care about abortion. Which is why 3 of Nixon’s 4 appointees voted with the Roe majority, and Rehnquist apparently dissented because he’s generally unsympathetic to individual rights claims, not out of any particular affinity with the pro-life cause.

None of this is to compare Miers to Souter. First of all, the latter is a Rhodes Scholar and a very scholarly man who had served on New Hampshire’s Supreme Court (and as its Attorney General), and also had served (albeit briefly) in federal appellate court; it’s frankly outrageous that some people are comparing the two in terms of credentials. And it’s a good bet that Miers will prove to be significantly more conservative. But about how she’ll rule in any particular case, nobody knows, and not knowing can cut both ways.