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Saturday, October 08, 2005

Want to Know Meirs? Check Out Her Boyfriend Nathan Hecht

By Paul Coppe, JD

So is everyone out there relishing the shellacking
Bush has been taking from the right? Man, what a list
of bashers! Ann Coulter, Robert Bork, Charles Krauthamer,
George Will, William Kristol, Rich Lowry... and that's
just the tip of the iceberg.

The Democrats, doing nothing as usual, must be feeling
thankful that someone else is doing their job for them,
and doing it better than they could themselves.

Maybe the Miers nomination is already doomed. But it
doesn't look that way to me. No senators have yet come
out against. Some Democrats, from places like Nebraska,
Wyoming, Arkansas, could get on board at some point,
and the deal would be done.

So, here's the truth that no one seems to be telling.


Number one: the claim she is unqualified is bunk.

Her supporters keep pointing to Rehnquist to justify
picking a non-judge, and the comparison has some relevance:
a high level White House lawyer works on constitutional
issues regularly, and if she might not encounter every
one of them, well, her mind is accustomed to doing
the analysis. But there are better comparisons. How
about Earl Warren? Former gov. of California (let's
not even start on others who have held THAT post!),
he was unquestionably a constitutional lightweight,
if also the force behind Brown v. Board of Ed. Then
there was Hugo Black, a pol from Alabama famous for
his short opinions and also for his absolutist defense
of the 1st Amendment.

But maybe the best analogies would be William Douglas
and Lewis Powell, both (like Miers) highly distinguished
corporate lawyers who had litigated all sorts of coomplex
federal cases and were steeped in the sort of jurisdictional
analysis (belive me, it's tough) and statutory construction
that gets done on the high court. All these justices,
though they had their critics, did just fine. If Miers
gets confirmed, she'll be up to the job. As to all
those legal movement conservatives who got passed over,
oh well, that's how it goes.

So is Harry Reid correct to have said he likes Miers?
NO WAY NO WAY, unless his opposition to abortion is
of a kind with, say, James Dobson (enthusiastic Miers
supporter, please note.) Noticed any of the photos
of Miers with her sometime beau, a Texas Supreme Court
justice named Nathan Hecht? Heard that Hecht also discipled
Miers into her current born-again church? Well, folks,
you should check out Nathan Hecht.

The treatment by the Texas Supreme Court of the Texas
abortion parental notification statute makes interesting
reading, not least because of who has been on the court
writing opinions. The crux of the controversies involve
teenagers who want to get abortions without telling
their parents. The statute allows it provided you can
get a judge to sign off, after a hearing. The Texas
legislature also makes available free government-paid
lawyers for the girls if they need them (probably referred
by those Nazis over at Planned Parenthood-- you know,
the ones Bill Bennett claims might like to abort all
black babies). You can show that you are mature enough
to make an informed decision on your own (under the
statute that is enough), or you can show that if you
told your family that you are pregnant, you would face
the threat of abuse, or you can even just show that
not notifying your parents is in your best interest.
If the judge turns you down, he has to explain why.
For obvious reasons, appeals are dramatically expedited.
Finally, the petitioner only has to prove her case
by a mere preponderance of the evidence, even though
she has no opposition (since her parents, of course,
aren't told about the case).

Well, Texas being what it is, local judges have been
known to deny these petitions, sometimes on flimsy
grounds, sometimes not even bothering to state their
grounds.

Several cases have made it up to the Supremes.

The Supremes, by now either largely or totally Republican,
have repeatedly found for the girls.

One leading opinion was written by Alberto Gonzalez,
who basically said, this is a fairly simple case, the
legislature set up a process which this girl employed
correctly, and her right therefore has to be vindicated.
This is also the opinion in which he called Priscilla
Owen (and also Hecht) unconscionable judicial activists.
Justice Owen made a big stir by dissenting, largely
arguing that the procedural and evidentiary processes
compelled (as a practical matter) by the statute were
so irregular that the legislature could not have intended
them, and that the girl would have lost under more
traditional (and stringent) procedures. It was basically
naked judicial activism of exactly the kind consrvatives
SUPPOSEDLY detest, but it was at least delivered soberly
and with logical consistency. And afterward, Judge
Owen had no trouble accepting that the issue was settled.


And then there was Nathan Hecht.

Judge Hecht has had a visceral reaction to the controversy.
His dissents are not temperate, nor are they free of
ad hominem invective against his bretheren. Although
he VERY reluctantly now concedes that the court has
settled the issue, he still feels compelled to sound
off. His most recent assertion was that the clause
of the statute that requires both AN ORDER AND AN EXPLANATION
actually (plainly, he claims) requires only EITHER
AN ORDER OR AN EXPLANATION, so that a judge who denies
a girl's petition without explanation should have his
decision upheld (and presumably a judge who failed
to issue any order but managed to say what he thought
would be acting properly as well). His fellow judges
(and not only Gonzalez) have singled him out as an
intemperate zealot, vindictive, and intellectually
dishonest to boot. Their indictment is powerful, and
convincing. In sum, Judge Hecht, based on these cases,
appears to be an ideologue religious judicial activist,
basically Randall Terry wearing a black robe.

Now, folks, get out those photos of Harriet Miers and
Nathan Hecht going about town. Gander again at those
prominent crosses she wears. Imagine W looking into
her soul, like he did with Putin, only this time he
understands what he sees.

W was no fool to make this nomination; he's looking
to sneak someone onto the court who, on "social values"
issues at the LEAST, promises to be far to the right
of those intellectual conservatives the pundits all
wanted. How about church/state issues? Who knows?

Will the democrats sleepwalk as Rome burns, AGAIN,
JUST LIKE THEY DID ON IRAQ?

One of these days, radicalism is likely to make a
comeback.

"Some say they've passed their darkest hour--
Those moderates are back in power.
They listen close with open ears,
They'll help us out in a coupla' hundred years.
But don't push 'em, whatever ya' do,
Or else you get those extremists back in...."