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October 10, 2005

A MIERS MELTDOWN? More and more, I have to wonder what the White House was thinking with this. First of all, when you're already under fire for cronyism, and you nominate someone who's, well, a crony, you ought to be locked-and-loaded in terms of response. They weren't.

Second of all, they seem to have managed to convince a lot of people on the social right that she's too liberal, while people on the libertarian-right worry that she's too much a fan of government power. Third, their response to critics and complaints has been slow and weak.

I realize that the White House is busy -- perhaps busier than we realize from news coverage -- with a lot of war and foreign-policy questions. But if so, isn't that more reason to go with a safe pick of the Michael McConnell variety? Whatever else she is (and she could, of course, turn out to be fine as a Justice) Miers wasn't a safe pick. Republican Senators are underwhelmed, as are Republican bloggers, and John Fund -- after doing some interviewing -- has changed his mind and now thinks she shouldn't be confirmed. Talk Radio host Michael Graham has started up a Stop Miers Now! website. And the White House, even if it's spoiling for a fight with its base, isn't up to the job, as Fund notes:

It is traditional for nominees to remain silent until their confirmation hearings. But previous nominees, while unable to speak for themselves, have been able to deploy an array of people to speak persuasively on their behalf. In this case, the White House spin team has been pathetic, dismissing much of the criticism of Ms. Miers as "elitism" or even echoing Democratic senators who view it as "sexist." But it was Richard Land , president of the Southern Baptist Convention, who went so far as to paint Ms. Miers as virtually a tool of the man who has been her client for the past decade. "In Texas, we have two important values, courage and loyalty," he told a conference call of conservative leaders last Thursday. "If Harriet Miers didn't rule the way George W. Bush thought she would, he would see that as an act of betrayal and so would she." That is an argument in her favor. It sounds more like a blood oath than a dignified nomination process aimed at finding the most qualified individual possible.

Read the whole Fund piece, which is just devastating. And then note that Miers is being opposed over at PoliPundit.

The fact is that Miers would probably agree with me on more issues than a candidate who would be supported by a lot of those who are opposing her. (I don't shiver with horror when Sandra Day O'Connor is mentioned, though I prefer the O'Connor of South Dakota v. Dole to some of her later incarnations -- but, then, I prefer the O'Connor of South Dakota v. Dole to a lot of alleged conservatives in Raich, too.) But her nomination looks like a major political blunder for the Administration, which has yet to provide any very convincing reasons why she belongs on the court more than any of several thousand other lawyers with similar credentials. What's more, there are good reasons why the path from White House Counsel to Supreme Court Justice isn't a well-trodden one, and there are more good reasons why it probably shouldn't become well-trodden.

On the other hand, SkyMuse says that Miers nomination critics are missing the big picture.

What do you think? I'm opening comments on this post, so weigh in.

UPDATE: Comments don't seem to be working. I'm not sure what's wrong.

ANOTHER UPDATE: Fixed now. Comment away -- be nice!

MORE: Some people are still having problems with the comments. Sorry -- I'll try to get it fixed.

LATER: Comments are open, but I'm having, for some reason, to approve them individually. So don't re-enter yours when you don't see it appear; I'll get to it.

LATER STILL: Okay, it's been over 24 hours, and I'm turning them off before the spammers move in.

Comments

Professor Reynolds -

I guess my feelings are best summed up here:

http://voluntarilyconservative.blogspot.com/2005/10/mistaken-nomination-of-harriet-miers.html

As you may have guessed, I am a bit disappointed.

Cheers,

Rob

Posted by: Rob Huddleston at October 10, 2005 03:48 PM


I think the "inside the beltway" crowd of pundits and loudmouths needs to shut up and listen to the Republican base, which according to today's Washington Times has no complaints about Miers. This isn't about Harriet Miers, this is about a bunch of massive egos getting bruised because the President didn't say "how high" when they ordered him to jump. I just can't believe how otherwise smart people are being so incrdedibly stupid on this one. It isn't the President who screwed up here, it is Kristol, Krauthammer, Coulter, Buchanan, et al who are destroying five years of hard work and who, like little children who don't get their way, are having public temper tantrums. And the charge of cronyism against the President is nothing but sour grapes. One of President Bush's strongest points has been his skill at surrounding himself with top quality people. The fact that some of these people have been with him a very long time is a testament to the fact that he has been exercising this skill for a very long time. And as a woman, I'm beginning to get ticked at the borderline, albeit subtle, sexism I'm hearing. I am the same age as Harriet Miers, and I understand what a tremendous strength of will this woman must have to have succeeded in the "good ol' boy" state of Texas probably far better than any of you ten, twenty and thirty years younger. For a woman to succeed as she has and break the ground (the glass ceiling) as she has in the era she did means she HAD TO BE much brighter, much harder working, much more savy than any of her male counterparts. That's just the way it was.

Posted by: Squiggler at October 10, 2005 03:49 PM


This entire debate about Miers' qualifications reminds me of the baseball HOF voting. There is one commentator (I don't recall his name) who takes the position that if you really need to argue a player's case to vote them into the HOF, they don't belong. I think the same can be said of the Miers nomination, if he needs to work this hard to demonstrate that she really is qualified/the best person for the job, GWB probably made the wrong decision.

Posted by: Mark at October 10, 2005 03:50 PM


Testing...

Testing...

1-2-3...

Working now?

Posted by: Bob at October 10, 2005 03:51 PM


My only guess at what the WH was thinking with this pick was, "From our personal history with Miers, we know she's a conservative; and because she has no 'paper trail', we know she'll be confirmed; thus, she's the choice."

I think most of the disappointment of the soft-right (myself included) is not about what Miers' judicial philosophy is (if she has one); it's not about the missed opportunity for a bloody philosophical fight; rather, it's the President choosing so clearly a weaker candidate.

It's clear that the only feature of Miers experience to set her apart from thousands of other lawyers is her service to Bush. That does NOTHING to set her apart to the rest of the country, and in the current climate, is a mild negative.

It's not her lack of judicial experience; if Bush had chosen Fred Thompson there wouldn't have been an uproar about it. It's her lack of distinction, in any way, other than her loyalty.

Bush has shrunken in my eyes.

Posted by: Disappointed R Voter at October 10, 2005 04:05 PM


Testing...

Posted by: Test at October 10, 2005 04:05 PM


Comments not working? It's official - you've lost your blog mojo.

Posted by: Hoodlumman at October 10, 2005 04:06 PM


The more I hear those on the far right grumble, the more I think Bush made a good pick. I was once a Republican, but I left the party during the ascendance of the hard core right in the early 90’s. That being said, I still tend to vote R more than D.

If the far right ideologues grandstand and make public asses of themselves like many Democrats did during the Roberts process, then Bush could be doing a great service to the country, and possibly the party.

Exposing the extremists on both ends of the spectrum is a good thing, IMO (or maybe I should say that it’s good to let the extremists expose themselves….) This could be a rare opportunity for the more moderate, swing voting public to compare and contrast the behavior and intentions of the hard core members of both parties just months apart.

And the struggle between the conservative and moderate (and even libertarian leaning) groups within the Republican party has been going on for years. Just like the Dems. Of course, at this point, its really hard to know what is in this woman’s head, but I hope that will come out during the confirmation process. If it doesn’t there is going to be some splaining to do.

But I suspect Miers is an attempt to push the court more towards the center, and add a touch of real world, non-academic, common sense. Historically, that has been Bush’s path all along (as well as his father’s). His conservative face is just a product of the media, his political opponents, and quite possibly, of his own political advisors.

Posted by: jaymaster at October 10, 2005 04:06 PM


I don't have a comeback for Bork's claim that a SCOTUS justice should be a Constitution geek.

Posted by: Douglas at October 10, 2005 04:07 PM


Why shouldn't a regular sort of pearson be on the SCOTUS. This is going to turn out to be brilliant. I credit President Bush's regular prayers.

Posted by: Huggy at October 10, 2005 04:09 PM


FYI CNBC has an interview with Scalia; the Miers nomination is covered. They have been teasing it over the last hour, should be on between 4:15-5:00 EST. Apparently Bartiromo cornered him at the NYC Columbus Day festivities.

Posted by: dave at October 10, 2005 04:10 PM


This is an underwhelming choice. This is the second time Bush has chosen the person who was supposed to lead the search, the first being Chaney. What is interesting to me is that you have to give Clinton credit. He hit a home run with both Ginsberg and Breyer- for his side. There is little doubt where they will vote. I wish this were true of the right.

Posted by: Bt at October 10, 2005 04:10 PM


My problem with Harriet Souter is not that she is against abortion or for affirmative action or vice versa. My problem is that like her brother David she is a pig in a poke.

What we need to deal with is that there are 9 justices on the supreme court right now and 7 of them were nominated by Republican Presidents, but only two of them have a correct understanding of the Constitution as a dead legal document. That is not a good batting average.

Harriet Souter might vote down the line with Thomas or she might decide to join her brother David in the penumbras and emanations camp. I don't know, you don't know and none of the talking heads knows.

One thing I am sure of is that Bush could have nominated a known quantity with a well articulated view of the constitution, but he didn't and he must pay the price in carping from me and others like me.

Posted by: Robert Schwartz at October 10, 2005 04:10 PM


Let's wait until we hear what the woman has to say.

Posted by: Lou Minatti at October 10, 2005 04:11 PM


Bottom Line - Do I trust Prsident Bush? - I do. but that doesn't mean I am not nervous. If you look at his politcal appointments ( and that is the ONLY thing we have to go on, ) he has done, what I consider a great job.

I wonder why the roar would have been if she had came before Roberts.

Posted by: Paul at October 10, 2005 04:11 PM


The entire debacle is ridiculous. President Bush does not "owe" anyone a nomination.
There comes a point, when playing by the rules, within the rules should be acceptable.
He is and was playing within the guidelines established.
Let the nomination go forward.

Posted by: Joe Citizen at October 10, 2005 04:12 PM


Reminds me of a game of sorts I played in college in which we imagined a hypothetical Administration with cabinet posts and various Federal agencies filled by dorm-mates according to our perception of one another's interests and aptitudes. Since this was the University of Chicago, they might have turned out pretty well. Well, now we're seeing what looks like an instance of appointment-by-familiarity to one of the highest offices in the land in real life. She might be fine. But that's definitely a "known unknown."

It also occurs to me that every second-term Administration in my lifetime (though I'm too young to remember anything of Eisenhower's) has arguably "melted down": LBJ, Nixon, Reagan, Clinton. I'm sure game theory plays a big part here, so it's topical in more than one way; see http://nobelprize.org/economics/laureates/2005/adv.html (includes link to 922 kB PDF).

Posted by: Jay Manifold at October 10, 2005 04:12 PM


Miers has turned my disappoint ment in the Bush administration into disgust

Posted by: M. Simon at October 10, 2005 04:12 PM


It is disappointing that the U.S. system of government has come so far that gaming the Supreme Court has become this important. The source of all this heartache is not Bush's choice, but the judicial activism of the past five decades (and the presidential and congressional acquiesence thereof) that have made the choice so critical.

Posted by: beimami at October 10, 2005 04:13 PM


I think part of the furor is due to conservatives reaching a boiling point with frustration with Bush and it's now boiling over. I think a year ago Bush could have had his way with anyone he nominated, pretty much.

We're having a discussion of this right now at landv.net

Posted by: alanH at October 10, 2005 04:14 PM


GWB's motivations for almost anything he does have become increasingly inscrutable since his reelection. No doubt Bush thinks Miers will be a good justice, but it's equally doubtless than her nomination is a reward for her friendship and service to GWB. I just don't see how that can be gainsaid.

Hence, yes, this is cronyism and Miers should be voted down on that basis alone. Bush gave her the nod in a way that makes it stink of patronage - for the highest court in the land!

Just after the election Bush told reporters that his reelection gave him, "political capital, and I'm going to use it." Well, it didn't give him as much capital as he thought, and if this nomination is an example of using it, let us be thankful the capital account is small.

Posted by: Donald Sensing at October 10, 2005 04:15 PM


I think that she is only unacceptable to conservatives because she has not clearly shown that she is a conservative. As for judicial experience, that has never been a pre-requisite, has it?

I trust Bush if he says that he can trust her to make the judgements he wants a justice to make. I don't know for sure how conservative Bush is, though.

It might be a masterstroke: a black horse who will be the ultimate conservative justice. And the rightwing might mess it up for Bush.

Or not.

Posted by: Quickrob at October 10, 2005 04:15 PM


GWB's motivations for almost anything he does have become increasingly inscrutable since his reelection. No doubt Bush thinks Miers will be a good justice, but it's equally doubtless than her nomination is a reward for her friendship and service to GWB. I just don't see how that can be gainsaid.

Hence, yes, this is cronyism and Miers should be voted down on that basis alone. Bush gave her the nod in a way that makes it stink of patronage - for the highest court in the land!

Just after the election Bush told reporters that his reelection gave him, "political capital, and I'm going to use it." Well, it didn't give him as much capital as he thought, and if this nomination is an example of using it, let us be thankful the capital account is small.

Posted by: Donald Sensing at October 10, 2005 04:16 PM


My letter to Hugh Hewitt about his position on Miers. It also applies to the Anchoress, Beldar, and other Pro Miers folks...

*************************

Mr. Hewitt,

I have a great deal of respect for you. I regularly visit your blog and have purchased your books. But I feel you are currently advocating a position that will do the party more harm than good. The position I'm referencing is your party-line stance on the nomination of Harriet Miers.

President Bush has made the biggest political blunder of his Presidency. This utterly bizarre nomination has only succeeded in ripping his party apart. Worse, the rift is not one that has come from the slash of principle, as would be worthwhile(or at least understandable). Rather, it came from an act of weakness. It has come from a betrayal of the common beliefs and goals of the Conservative movement.

The White House was reportedly "caught off guard" by the reaction to this nomination. That is also not very promising. It demonstrates just how out of touch they are with their base, and how little they really understand the depth of concern over this issue among movement Conservatives. How they didn't see this reaction coming is completely mystifying.

So now the solution? You have advocated sticking with the President, trusting him, and towing the party line - all to avoid catastrophe in 2006 and possibly even 2008. This position is understandable, and even admirable. However, I think it is completely misguided and counterproductive in this present circumstance, and will only serve to produce the opposite result to the one you profess to desire.

The level of rage and anger among so much of the activist Conservative movement in this country cannot be wished away. It will not subside out of force of will, nor will it diminish with entreaties to do what's right "for the party". We support the party for a reason - the advancement of our beliefs about what will be best for this country. We do not support the party for its own sake. So even if most of us do our best to "calm down", it will be difficult to defeat the demoralizing effect of this action by the President. We may calm our rage, but we cannot shake our disappointment. And that will certainly lead to less money given, less phone calls made near election time, less grassroots campaigning.

I have already cancelled my monthly RNC contribution. Many others have done the same. The wind has been taken out of our sails, and it will be very hard to get back under the present circumstances. We have worked extremely hard for this President. I gave thousands of dollars, made phone calls, pounded pavement, and on and on. We have stood with this President and this party through countless difficulties and frustrations - including lax immigration enforcement, campaign finance reform, uncontrolled govenrment spending, the Medicare Entitlement, tarrifs, the Farm Bill, the federalizing of education, and on and on and on. This President and this Congress have been among the most "liberal" in the latter half of the twentieth century, with only tax cuts and an agressive foreign policy setting them apart from Carter or LBJ.

We endured it all, hoping that the fight for a larger majority in Congress and the President's re-election would ensure a movement toward more Conservative policies in the second term. This has not happened. And this pathetic nomination is now the last straw. Why should we continue to work so hard for this party when we get no results for our efforts?

There are only two possible solutions to this currnet Bush-caused disaster in the Republican party:

1. Miers is confirmed, gets on the Court, and immediately starts issuing opinions rigidly in line with Scalia and Thomas.

2. Miers is withdrawn as a nominee, or drops out herself.

Either of these two options WOULD repair the damage this President has caused in the party. But these are the only things that would.

Option number one seems very unlikely, given what we are now finding out about Miers. She is a squishy O'Connorite, according to most of the evidence now out there. She certainly has nothing in her record indicating the kind of rigidity of principle that sets a Scalia or Thomas apart from the others on the Court. Even dismissing the information that has come out about Miers, option number one is still very unlikely, considering the history of judicial appointments to this court and their record of behavoir. They usually drift Left. Why should we gamble that Miers will be any different, especially when the information out about her now is already discouraging?

Option number one is not only unlikely, but it is also not something that we can afford to cross our fingers and hope for. No individual should gamble with something so important, and a movement certainly should not. This nomination signals our chance to finally start remaking the court. What a waste if we blow it...

Option number 2, on the other hand, is completely viable. If Miers is withdrawn or drops out herself, and Bush nominates a proven Conservative in her place, all will be forgotten and forgiven. The rift will repair itself, and the movement will once again be whole. The base will be energized and happy yet again. There will be a week or two of negative media coverage, but so what? We get that anyway, and the next nominee would then wipe the slate clean in every respect, as the back and forth begins anew.

Any other option is not very desirable. Nobody wants to see the President's weak-kneed nominee go down on the Senate floor, as that makes any future nominations difficult(a strong nominee going down at least gives one the option of then picking a weaker choice, such as a Miers, next - which would've been fine with the base, had Bush at least TRIED a proven Conservative first). And the other alternative, Miers getting confirmed and then turning into O'Connor, which seems very likely, would be a complete catastrophe for the future of this party.

Reagan and Bush the elder got a pass for their bad appointments - because the base wasn't nearly as focused on this issue as it is now, with "Men in Black", Limbaugh and the internet all dominant forces on the scene. This is a new era of scrutiny and passion.

Bush II will not get that pass, and neither will Republicans if this nomination goes forward into Confirmation. This is the kind of event that gets third parties started...

I fear your "cross our fingers and support the President" strategy is the one most likely to lead to disaster. It is based exclusively on wishful thinking, rather than the evidence at hand, and nothing good will likely come if your wants are fulfilled. A Miers confirmation would be just as disastrous as the Miers nomination - even more so, as it will involve not only the split of a party, but also the specter of actual squishy decisions being handed down on the Supreme Court - affecting us all for generations.

You are seeking unity. But unity of that kind - "let's all sink together" - is not what I or many other Conservatives seek. The unity of "let's stand firm and force this nominee out", is a far better option that gives us the only real way to get out of this mess relatively unscathed. Miers being dropped WOULD result in the party coming back together, and little harm being done, providing Bush nominates a proven Conservative in her stead. No other course of action is nearly as certain in its positive result.

Also, ask yourself this question, Hugh - if Miers was dropped or left the process voluntarily, how happy would that make many Conservatives? The base? Very much so. And how upset would you, Beldar, and others really be if she was replaced by a Luttig or somebody else with proven Conservative credentials? I suspect you guys would be happier as well. So if Miers leaving would upset virtually noone, but her staying threatens to rip the party apart, why on earth is anybody on the side of her sticking around?

The party is in a perilous position right now, as I know you are aware. Why then, advocate a course likely to keep the movement Conservatives angry, and possibly split the party for years to come?

********************

Posted by: David at October 10, 2005 04:16 PM


Bottom line: The nomination is a disgrace and if this conservative insurgency continues to metastasize the nomination with be withdrawn.

Posted by: Dave at October 10, 2005 04:16 PM


President Bush nominated Harriet Miers to be Associate Justice of the U.S. Supreme Court for two reasons.

First, Ms. Miers is eminently qualified.

She has a long and distinguished record of service in both the public and private sector. She was co-managing director of a major law firm in Dallas. She has served as counsel to Bush, first when he was governor-elect of Texas, and then during his presidency. These are not jobs for intellectual lightweights or legal mediocrities.

The second reason President Bush has picked Ms. Miers is the fact that she is a staunch legal conservative who comes personally recommended by Senate Minority Leader Harry Reid!

President Bush knows Ms. Miers better than almost anyone, and he is convinced that Ms. Miers is a constitutional constructionist. Apparently Senator Reid didn't realize that before recommending her. Conservatives should be rejoicing instead of complaining about alleged missteps on the part of the president.

In short, choosing Harriet Miers was a no-brainer.

The only real apparent objection is that Ms. Miers is a "crony" of President Bush. I'm sure the Senate Democrats will be sorely tempted to pick up this line of attack when they realize how badly President Bush has hoodwinked them.

Unfortunately for Senator Reid and company, a true crony has to be either incompetent or corrupt, and Ms. Miers is neither. Ms. Miers will be confirmed, and the Democrats will just have to grin and bear it.

Posted by: Matthew Goggins at October 10, 2005 04:17 PM


Harriet Miers has turned my disappointment in the Bush administration into disgust

Posted by: M. Simon at October 10, 2005 04:18 PM


I think that she is only unacceptable to conservatives because she has not clearly shown that she is a conservative. As for judicial experience, that has never been a pre-requisite, has it?

I trust Bush if he says that he can trust her to make the judgements he wants a justice to make. I don't know for sure how conservative Bush is, though.

It might be a masterstroke: a black horse who will be the ultimate conservative justice. And the rightwing might mess it up for Bush.

Or not.

Posted by: Quickrob at October 10, 2005 04:18 PM


Those watching the Roberts confirmation hearings will recall witnesses extolling the nominee's "pro bono" work while at the silk stocking firm Hogan & Hartson. "Pro bono" of course is free legal work for the poor.

Many lawyers who represent people rather than corporations devote much of their professional lives to "pro bono." They make their livelihoods taking the case of the little guy who got screwed, but can't afford to pay the lawyer. Such lawyers often don't get paid what they should, either because the client could only afford a fraction of what the lawyer's nominal hourly rate might be, or else the entire case was undertaken on the contingency that there would be some sort of recovery. Such lawyers often have modest incomes and lifestyles.

On the other hand, there are mega-firms like Hogan & Hartson (Roberts' firm) and Locke Purnell Boren Laney & Neely (Harriet Miers' mega-firm in Dallas). These firms represent corporations--really big ones. At Locke Purnell, Miers' leading clients were Microsoft Corp., Walt Disney Co., and Republic National Bank. Such firms love to tout their "pro bono" programs.

I doubt you'll hear the names Republic National Bank or Microsoft at Miers' upcoming confirmation hearing. I'll guarantee, however, that you'll hear much about the "pro bono" work Miers did at Locke Purnell.

During Roberts' recent confirmation hearing, while wintesses were extolling the nominee's "pro bono" work at Hogan & Hartson, I couldn't get my mind off of his financial statement. Soon after the nomination was made public, the NYT had linked to Roberts' official financial disclosure form showing a net worth of about $5 million (he's heavy into mutual funds). Not bad for a guy who spent a good chunk of his career as a government lawyer, and a testament to just how lucrative it is being a partner in a prestigious mega-firm.

With far more years as mega-firm partner, Miers' soon-to-be-released financial statement undoubtedly will put Roberts' numbers to shame. Remember that statement when the witnesses and senators start extolling Ms. Miers' "pro bono" work at Locke Purnell.

And ask yourself why lawyers who represent human beings--and who make up the bulk of real "pro bono"--seldom get nominated to the Supreme Court.

Posted by: webhub at October 10, 2005 04:18 PM


A very underwheliming choice. Give Clinton creidt, his picks, Breyer and Ginsburg are very much in line with D. Party thinking and vote accordingly. I wish that were true of the R's.

Posted by: bt at October 10, 2005 04:19 PM


This is a letter I sent to Hugh Hewitt. But it applies equally to Beldar, the Anchoress, and others who are supporting the Miers nomination...

****************************

Mr. Hewitt,

I have a great deal of respect for you. I regularly visit your blog and have purchased your books. But I feel you are currently advocating a position that will do the party more harm than good. The position I'm referencing is your party-line stance on the nomination of Harriet Miers.

President Bush has made the biggest political blunder of his Presidency. This utterly bizarre nomination has only succeeded in ripping his party apart. Worse, the rift is not one that has come from the slash of principle, as would be worthwhile(or at least understandable). Rather, it came from an act of weakness. It has come from a betrayal of the common beliefs and goals of the Conservative movement.

The White House was reportedly "caught off guard" by the reaction to this nomination. That is also not very promising. It demonstrates just how out of touch they are with their base, and how little they really understand the depth of concern over this issue among movement Conservatives. How they didn't see this reaction coming is completely mystifying.

So now the solution? You have advocated sticking with the President, trusting him, and towing the party line - all to avoid catastrophe in 2006 and possibly even 2008. This position is understandable, and even admirable. However, I think it is completely misguided and counterproductive in this present circumstance, and will only serve to produce the opposite result to the one you profess to desire.

The level of rage and anger among so much of the activist Conservative movement in this country cannot be wished away. It will not subside out of force of will, nor will it diminish with entreaties to do what's right "for the party". We support the party for a reason - the advancement of our beliefs about what will be best for this country. We do not support the party for its own sake. So even if most of us do our best to "calm down", it will be difficult to defeat the demoralizing effect of this action by the President. We may calm our rage, but we cannot shake our disappointment. And that will certainly lead to less money given, less phone calls made near election time, less grassroots campaigning.

I have already cancelled my monthly RNC contribution. Many others have done the same. The wind has been taken out of our sails, and it will be very hard to get back under the present circumstances. We have worked extremely hard for this President. I gave thousands of dollars, made phone calls, pounded pavement, and on and on. We have stood with this President and this party through countless difficulties and frustrations - including lax immigration enforcement, campaign finance reform, uncontrolled govenrment spending, the Medicare Entitlement, tarrifs, the Farm Bill, the federalizing of education, and on and on and on. This President and this Congress have been among the most "liberal" in the latter half of the twentieth century, with only tax cuts and an agressive foreign policy setting them apart from Carter or LBJ.

We endured it all, hoping that the fight for a larger majority in Congress and the President's re-election would ensure a movement toward more Conservative policies in the second term. This has not happened. And this pathetic nomination is now the last straw. Why should we continue to work so hard for this party when we get no results for our efforts?

There are only two possible solutions to this currnet Bush-caused disaster in the Republican party:

1. Miers is confirmed, gets on the Court, and immediately starts issuing opinions rigidly in line with Scalia and Thomas.

2. Miers is withdrawn as a nominee, or drops out herself.

Either of these two options WOULD repair the damage this President has caused in the party. But these are the only things that would.

Option number one seems very unlikely, given what we are now finding out about Miers. She is a squishy O'Connorite, according to most of the evidence now out there. She certainly has nothing in her record indicating the kind of rigidity of principle that sets a Scalia or Thomas apart from the others on the Court. Even dismissing the information that has come out about Miers, option number one is still very unlikely, considering the history of judicial appointments to this court and their record of behavoir. They usually drift Left. Why should we gamble that Miers will be any different, especially when the information out about her now is already discouraging?

Option number one is not only unlikely, but it is also not something that we can afford to cross our fingers and hope for. No individual should gamble with something so important, and a movement certainly should not. This nomination signals our chance to finally start remaking the court. What a waste if we blow it...

Option number 2, on the other hand, is completely viable. If Miers is withdrawn or drops out herself, and Bush nominates a proven Conservative in her place, all will be forgotten and forgiven. The rift will repair itself, and the movement will once again be whole. The base will be energized and happy yet again. There will be a week or two of negative media coverage, but so what? We get that anyway, and the next nominee would then wipe the slate clean in every respect, as the back and forth begins anew.

Any other option is not very desirable. Nobody wants to see the President's weak-kneed nominee go down on the Senate floor, as that makes any future nominations difficult(a strong nominee going down at least gives one the option of then picking a weaker choice, such as a Miers, next - which would've been fine with the base, had Bush at least TRIED a proven Conservative first). And the other alternative, Miers getting confirmed and then turning into O'Connor, which seems very likely, would be a complete catastrophe for the future of this party.

Reagan and Bush the elder got a pass for their bad appointments - because the base wasn't nearly as focused on this issue as it is now, with "Men in Black", Limbaugh and the internet all dominant forces on the scene. This is a new era of scrutiny and passion.

Bush II will not get that pass, and neither will Republicans if this nomination goes forward into Confirmation. This is the kind of event that gets third parties started...

I fear your "cross our fingers and support the President" strategy is the one most likely to lead to disaster. It is based exclusively on wishful thinking, rather than the evidence at hand, and nothing good will likely come if your wants are fulfilled. A Miers confirmation would be just as disastrous as the Miers nomination - even more so, as it will involve not only the split of a party, but also the specter of actual squishy decisions being handed down on the Supreme Court - affecting us all for generations.

You are seeking unity. But unity of that kind - "let's all sink together" - is not what I or many other Conservatives seek. The unity of "let's stand firm and force this nominee out", is a far better option that gives us the only real way to get out of this mess relatively unscathed. Miers being dropped WOULD result in the party coming back together, and little harm being done, providing Bush nominates a proven Conservative in her stead. No other course of action is nearly as certain in its positive result.

Also, ask yourself this question, Hugh - if Miers was dropped or left the process voluntarily, how happy would that make many Conservatives? The base? Very much so. And how upset would you, Beldar, and others really be if she was replaced by a Luttig or somebody else with proven Conservative credentials? I suspect you guys would be happier as well. So if Miers leaving would upset virtually noone, but her staying threatens to rip the party apart, why on earth is anybody on the side of her sticking around?

The party is in a perilous position right now, as I know you are aware. Why then, advocate a course likely to keep the movement Conservatives angry, and possibly split the party for years to come?

***************************

Posted by: David at October 10, 2005 04:20 PM


I just can't understand how insular the White House has become. Sometimes it seems to go into a major pandering mode, then something like the crony-pick of Harriet Miers. Perhaps it's a function of paying attention to one's enemies and ignoring one's friends. Baffling, just baffling.

Posted by: Mantic Pundit at October 10, 2005 04:20 PM


A lot of people voted for President Bush on one issue, and one issue only: the GWOT. Miers' published remarks so far indicate she's entirely on the same page as Bush with respect to how it's being waged. (Read her "Ask the White House" transcripts, for starters.)

Explain to the one-issue, GWOT voters why Miers is a bad choice.

Posted by: A Reader at October 10, 2005 04:20 PM


I've been trying to figure out what bothers me so deeply about the nomination of this woman, even though we all agree she may turn out to be great.

It comes down to this: Miers was in charge of helping the president locate the very best possible judicial candidates for the job of Supreme Court Justice--that was her job. But when faced with extreme pressure, she completely failed in that goal by agreeing to her own nomination. She knows that she's not the best qualified person for the job, so she had the duty, even the responsibility, to the president and to the country, to turn the job down flat, even though it would have involved great personal sacrifice for her to have done so.

To my way of thinking, she's already succumbed to the "temptations" of the job and completely deceived herself. If that's the case, what will she do on the court when the REAL pressure begins. This job requires disciplined, clear-thinking people who can make the tough decisions on a consistent basis. I don't believe Harriet Miers is that person, primarily because she's already flunked her first real test---"Know Thyself."

Posted by: Jeff Talbot at October 10, 2005 04:21 PM


The biggest argument to me against trusting the PResident is the example of Norm Mineta. If we could trust the President 100%, Mineta would have been toast years ago.

In the immortal words of the Gipper,"Trust, but verify."

I want a nomination made because the person is conservative... That's why I damn well voted last November. Now I'm getting screwed by my President. The RNC ought to understand this when I stay home next round. And if that hurts the Republicans, too bad. If that's what it takes to make them grow a pair, then so be it.

Posted by: Cro at October 10, 2005 04:21 PM


I just can't understand how insular the White House has become. Sometimes it seems to go into a major pandering mode, then something like the crony-pick of Harriet Miers. Perhaps it's a function of paying attention to one's enemies and ignoring one's friends. Baffling, just baffling.

Posted by: Mantic Pundit at October 10, 2005 04:21 PM


Seems to me people are just upset about the nomination process, not Bush's choice. Perhaps the process needs to be changed?

Maybe Bush is nominating Miers because he genuinely believes she will be a great judge? If I were in his position I would probably do the same. Judges are part of a president's legacy, shoudn't they choose people they know and trust over those who have flashy resumes?

Posted by: Torabisu at October 10, 2005 04:22 PM


I happen to think Bush's pick is a brilliant compromise, and yes the country need compromise, despite what Rush Limbaugh says. I also believe a majority of Americans don't want the court packed with conservative ideologues, but instead want real balance. Remember Bush's pledge after the last election to reach out to all Americans? Sadly, the conservative pundits appear to have forgotten the anti-intellectual streak which still (thank God) insinuates this country. Lonely Hugh Hewitt seems to be making the most sense these days.

Posted by: patentobserver at October 10, 2005 04:22 PM


I don't want presidents picking cronies over better qualified jurists, whatever the political party.

But when it comes to Miers, I'll defer to Alexander Hamilton in Federlist No. 76:

"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."

Posted by: Gonzo at October 10, 2005 04:22 PM


First, of all, I'll admit I am nervous about Miers.

However, I'm fed up with the conservative talking heads complaining about how it's not who they would pick. That's all fine and good but YOU DID NOT WIN AN ELECTION. If you want to name the next justice, then YOU run for office.

Otherwise, maybe you should acknowledge the Constitution of this country and respect the President's authority to choose the nominee.

Posted by: Dave at October 10, 2005 04:23 PM


I'm curious about the long-term political effects of this rift opening wide for all to see. What does it mean for the "coalition" of neos, libertarians, evangelicals, balanced-budget types....etc.

landv.net

Posted by: alanH at October 10, 2005 04:24 PM


If Ronnie Earle can indict a ham sandwich, then W can nominate whomever the Constitution says he can. And I believe it makes damn few distinctions over what a qualified judge nominee is supposed to look like. She fits it so far. So stop with the echo chamber and shut up until the woman has a chance to speak.

Never seen so many crybabies inside/outside the Beltway before..... What am I saying, yes I have. They are always crying about something. And this is a tempest in a teapot.

Subsunk

Posted by: Subsunk at October 10, 2005 04:24 PM


I cannot imagine someone being appointed by the President to the Supreme Court who could not discuss, off the cuff, issues of Constitutional Law. I wrote this entry, http://www.ericsgrumbles.net/archives/125112.php, on that topic on the 9th after the NYT article where Arlen Specter said he's giving her time to learn Constitutional Law first.

Posted by: Eric at October 10, 2005 04:24 PM


Any debate will have it’s unfair detractors, but allow me to make a list of irrefutable reasons to condemn this nomination:

1. As you can see, it’s pulled the conservative movement apart and demoralizing many of us. During next year’s midterm elections, this will cost more seats than we probably already were in position to lose thanks to crummy recruiting. This alone means that the nomination was a mistake.

2. Nominating Ms. Miers opens to the president to new rounds of “cronyism” charges.

3. Nominating a stealth candidate emboldens the Democrats and allows them to be even more obstructive in the future.

4. Running away from the Federalist Society further paints this noble group as some sort of extremist organization.

5. Nominating a stealth candidate sends a chilling effect to our best and brightest young legal scholars.

6. By running away from a fight, the conservative movement once again cedes the “moderate” ground to the Democrats. Perhaps permanently this time.

7. By running away from a fight, the Republicans miss out on a golden opportunity to unite the party and, if the Democrats choose to filibuster, paint the red state Dems as obstructionist and give them the same fate as Tom Daschle.

8. By running away from a fight we lose the opportunity to have a competant, likable judge sent up against Sen. Schumer every night. And the more Sen. Schumer on television representing the Dems the better.

9. The president chose the wrong topic to ask conservatives to “trust me”. If there’s one area where such confidence cannot be asked, Supreme Court nominations are it because every Republican president since Eisenhower has screwed it up.

10. Here we are one week later and Ms. Miers critics can still point to nothing more than “trust the president” and attacking fellow Republicans as elitist, which is bad enough, but sexist to boot. Which is unconscionable.

Now these are just political considerations and have nothing to do with Ms. Miers. But, they alone are reason enough that any thinking person in the White House should have tackled the president before making this nomination.

Now there are substantive reasons to oppose Ms. Miers as well. Many of these are opinions, but they should be chilling:

1. She appears to be in favor of Affirmative Action. There have been several reports that she softened the White House’s position on the subject in front of the Michigan cases.

2. Her life story reaks of too much victimology. Instead of having a “by her bootstraps” story, it appears that most of her success comes from shutting up, being quiet, and moving upwards based on the kindness of others.

3. She personally appears to be hostile to the Federalist Society, or at least unreasponsive to it, while being buddies with the ABA.

4. Cokie Roberts describes her views as “pragmatic” based on the Washington Post article. And I must agree. This opens her up to outcome based judicial rulings. The very thing we despise.

5. She has no overall legal philosophy to back up her limited Constitutional understanding. Allowing for much room to “grow” to the left. Because, despite President Bush’s assurances otherwise, her lack of experiences means she’ll have no choice BUT to grow in some direction.

6. Yes, her qualifications are slim. She might be qualified for a Circuit Court slot. Call me elitist, I don’t care.

7. We have SO MANY more qualified people of good temperment that can run circles around the Democrat monkeys in the judiciary committee.

8. Ms. Miers might have to recuse herself from many important cases thanks to her current job.

So that this isn’t a complete slam on Ms. Miers, I will say that she appears to be solidly pro-life. But that’s not enough for me. I take the Supreme Court seriously, and don’t see it in a single-issue light.

Posted by: son of lucas at October 10, 2005 04:24 PM


I'm deeply troubled that James Dobson, of the evangelical group Focus on the Family, has said he is supporting Miers' nomination after receiving assurances about Miers from Karl Rove. Dobson has further said he can not divulge what he has learned. Unless Dobson is lying, this is a horrifying departure from how the nomination process should proceed. Why should the leader of a religious group be privy to information that neither the U.S. Senate nor the public is?

Moreover, since when is a certain set of religious beliefs the proper test of whether someone should be on the Supreme Court? Since I don't hold to the same religious beliefs as Dobson, et al, shouldn't I be protected from this?

The President should enjoy wide latitude in his nominations, but this process seems to be hopelessly corrupted and truly contrary to the process our founders envisioned.

Posted by: Charles Giacometti at October 10, 2005 04:24 PM


Everybody is wondering, "what was Bush thinking?" People are trying to figure out his strategy, saying he knew he couldn't win so stealth was the only way to go. Come on guys! This really shouldn't be that hard. Bush has always shown tremendous respect for the office he sits in. He views this nomination as something he has a high duty to our country to do the best he possibly can do, and so he wasn't thinking about strategy, politics, or his base when he made this pick. He was thinking about our country.

And to him, the best possible pick, for our country, was Ms. Miers. It's really that simple.

There is no way he is going to back down on this and there is no way she will withdrawal herself (since she knows how serious he is in choosing her).

Just for once, try to see this through Bush's eyes. Try to imagine why he would think she is truly the best possible pick.

When you do that, *then* you'll begin to understand what Bush was thinking!

Posted by: Dean Cooper at October 10, 2005 04:25 PM


And the rank and file DOES NOT support his nomination. Those were party Chairmen and the like from various states in that article. Hardly people who buck the party line.

Posted by: David at October 10, 2005 04:25 PM


Squiggler, et al:

The story you refer to mentions that several GOP State & County committee members/chairs are not disappointed.

Two things:

1. Committee members & Chairs are not "the base."
2. Anecdotal evidence form a few counties/states isn't very convincing when the "buzz" indicates widespread dissatisfaction.


Posted by: lyle at October 10, 2005 04:34 PM


It may be unwise to read cleverness into what may be bungling, but consider: Ms. Miers is by all accounts a staunch conservative on most issues that divide Left from Right, yet by-and-large the criticism of the candidate is coming from right-wing circles. Some of her early defenders were Democrats. If the nominee is confirmed, conservatives will have one of their own as the newest addition to SCOTUS at the insistence of the Left. No nuclear war -- Dems save face, and we get the vote that we wanted all along. Clever? (Are Republicans going to blow this opportunity? We should continue to protest, then reluctantly agree to go along with the President's choice.)

Posted by: Dennis Folds at October 10, 2005 04:34 PM


Glenn:

I agree with you pretty much 100 percent. I personally have little in common with the judicial philosophy of many conservatives (if you want "results-oriented" jurisprudence, look no farther than Scalia's concurring opinion in Raich, and if I were to choose based on overarching constitutional philosophy, then Randy Barnett would probably have been my ideal candidate for the SCOTUS). If Miers turns out to be another O'Connor, I wouldn't be too terribly put out.

However, I agree with many conservatives that the President ought to have appointed someone with a demonstrable ability for judicial reasoning. After all, anyone can be sent to the Court to cast a vote; the problem is whether that person has the intellectual wherewithal to defend his or her vote with reasoning that will withstand the test of time.

This appointment has the aroma about it of Caligula sending his horse to the Senate.

The problem now, though, is that the Democrats will smell blood in the water if Bush withdraws the nomination, and perhaps it would be that much harder to get a more qualified candidate confirmed.

Posted by: SWLiP at October 10, 2005 04:35 PM


I don't pretend to understand the subtleties of the nomination process, and I don't even have much of a view of Miers herself. But I think the anger at Bush is mis-directed. My recollection is that he did nominate many conservatives to lower courts, only to see nominations languish for months or years. Then, a number of the Republicans in the Senate (e.g. John McCain) undercut the power of the majority to use the so-called "nuclear option" by signing the Gang of 14 deal. If GOP senators wouldn't fight for strongly conservative nominees at lower court levels, would they do so at the Supreme Court level? Could they, even, given the Gang of 14 deal? Just when it seemed that the majority was going to get its act together and do what voters sent THE ENTIRE REPUBLICAN PARTY to Washington for, those seven GOP Senators threw a wrench in the works. It seems to me that McCain et al are really to blame. Nobody seems to mention or remember this anymore.

Posted by: deci at October 10, 2005 04:35 PM


I think this whole thing doesnt say very much at all about Harriet Miers, but it says the world about the state of the Republican Party. Once again we are faced with a significant wing of the party that considers losing with honor to be more principled than winning with compromise. That "lose to win" strategy might make your chest swell with pride, but it also led to political exile for nearly 40 years.

This nomination says a great deal about the state of the coalition of conservatives and pragmatists that Bush hammered together to win the Presidency, and what is says is not good. What the 'chest thumpers' need to explain to me is how fracturing that coalition will help win more elections.

My take? The perfect is the enemy of the good. Is she perfect? no. Is she good, yes - as far as we can tell. I can say that President Bushs record on judicial appointments is much more successful than that of the oh so principled "President Patrick J. Buchanan" and all the other chest thumping purists have been with their nominations.

When the chest thumpers get done feeling sorry for themselves on this nomination, they will have to come right back and deal with filling Justice Stevens and Ginsburg seats in the next 18 months. This show is not over by a long shot, but it probably is for the extremists who are willing to exile the President over a single nomination.

So much for the "Bush is a Neo-Con Puppet" Meme. "would that it were" as Kerry would have said....

Posted by: Frank Martin at October 10, 2005 04:35 PM


It's good seeing everybody spitting the Hugh Hewitt / Ed Gillespie talking points. "The rank and file out in flyover country love her, so objections must be elitist." "It's sexist to oppose her." "It would be good to get somebody who doesn't have top notch appellate or professorial credentials on the panel."

It's good, because it's always entertaining to see somebody else choking on something, and given the volume and intensity of the pro-Miers comments, it will be very entertaining indeed to see her defenders eat those words.

When she sponsors a left feminist speaker series, it tells you something about her principled conservatism.

When she can bring herself to publicly urge neutrality of lawyers' associations with respect to abortion, yet not bring herself to urge opposition, it tells you about her principled pro-life approach.

When she expresses shock and dismay that many of the political appointee attorneys of the WH Counsel's Office are Federalist Society Members, and her shock and dismay is because the Fed Soc is "too political," it tells you something about her worldly wisdom, and moreover, her knowledge of the legal profession.

In short, we're being told to trust the president because he assures us that she's a staunch conservative and that we're a pack of rotten elitist sexist bastards if we don't trust him and shill for her. And at the same time every visible indicator relating to this woman says "not as smart or as conservative as her position might lead you to believe.

Sorry folks. First qualification is smart, and able to advance a conservative approach to legal interpretive methods - there's no indication she is capable of doing that. Second qualification is employs conservative methodological approaches to interpreting the law - given that she's horrified at the number of Fed Soc members in political positions in the WH, it's pretty clear she's unfamiliar with the leading proponents of modest, textually oriented interpretation of the law. Strike two. Third qualification, and least necessary, is politically conservative so at least she's a reliable vote. There is no evidence that she actually is conservative, and there is plenty of evidence that she actually isn't. Strike three, she's out.

The WH has *yet* to express a cogent argument for why anybody should support her. "She goes to church." Big deal. So do Bill Clinton and Al Sharpton. That doesn't make them worthy of a Supreme Court nominnation.

is upset about the p

Posted by: Al Maviva at October 10, 2005 04:35 PM


Miers was definately a dark horse pick. I've lived in Dallas 10 years and was "Harriet Who?" when the name came out.

Yes, this does look like cronyism, Michael Brown style. She is at least in the field as a lawyer, not totally clueless to emergency management like Brown (although he seemed to do well in Florida, but that might have more to do with the locals than Brown himself, much like the current situation).

I want to hear more from her before turning into all out screeching.

Posted by: David R. Block at October 10, 2005 04:35 PM


I was mildly disappointed but not surprised by the Miers nomination. I was disturbed by the immediate and vocal criticism of Bush’s pick coming from many of my favorite bloggers and columnists, reflecting some of the same withering, relentless criticism that the MSM and DowdWorld regularly level at the Bush White House—“cronyism”, “incompetence”, “arrogance”, “dishonesty”, even “stupidity” (this means you, Michelle).

This is criticism that the original Bush haters are happy to amplify. Just like on Meet the Press yesterday—who really thinks that isolationist and perpetual Bush antagonist Pat Buchanan represents the mainstream conservative movement? Certainly not Tim Russert.

George W. Bush represents the conservative movement more than any American breathing today. After all, it was conservatives who elected him. That includes the evangelical opinion leaders in my local Republican organization, as well as myself, a non-religious conservative who supports many of the goals of the Religious Right.

I am afraid that many of these angry conservatives are unconsciously releasing pent up frustration caused by the persistent negative coverage of George Bush when it comes to Katrina and Iraq. Another source of this frustration, though few conservatives care to admit it, is anxiety over the first SCOTUS pick, John Roberts. Face it when it comes to tangible track record, Roberts is really Miers with a fancier law degree.

WAIT AND SEE. If Miers turns out bad, George Bush’s legacy will be sent to the Ninth Circle of Hell, and he knows it. I believe we will get a conservative on the court with Miers. And John McCain needs to pay a price in Iowa and New Hampshire for robbing us of the enlightened debate we all would have liked to see.

Posted by: Charlie at October 10, 2005 04:36 PM


I don't share the outrage of most of our conservative pundits. Even with their outrage, many still believe Miers will, if given the opportunity, overturn RvW. If they are so concerned about how Miers opinion would fall on cases like Kelos, they shouldn't have been pandering for so long to get the court to infringe on the ultimate personal property our own bodies. So goes our schizophrenic conservatives.

Posted by: Alan at October 10, 2005 04:37 PM


If she's so qualified, let Bush appoint her to a federal circuit vacancy somewhere and let her prove it.

As it is, we don't know if she'd even make a competent traffic court judge.

Posted by: The Sanity Inspector at October 10, 2005 04:37 PM


Glenn - BDP from anklebitingpundits.com here. Pat Hynes, my partner over at ABP is a bit more agnostic on the Miers selection than I am.

Politically, this is a huge blunder of epic proportions. A few reasons. First, the news for the President hasn't been great as of late. Many conservatives are feeling a bit down, especially with the GOP Congress not cutting pork and seeming to have abandoned conservative principles

All this news adds up to trouble in 2006, not as much for people voting Democrat instead of Republican, but more for conservative turnout being "depressed". Since, according to the 2004 exit polls, almost double the number of voters classify themselves as "conservative" as do "liberal", the GOP can almost guarantee a victory by turning out the base, especially in off year elections.

The one thing that would have fired up the base more than anything else (and indeed outweighed all the negative things put together) would have been to nominate a tried and true conservative jurist who would've caused the "fight" (I prefer to think of it as a "debate") about the direction of the court and each parties view of the role of the judiciary. The battle over the judiciary has been going on for years, but in the last 30 or so it has become fever-pitched. Since conservatives (especially on social issues) have been on the losing side of many cases, President Bush's election was viewed as the best opportunity in a long time to turn that tide in their favor - not just for the balance of his term, but for decades to come.

However, by picking a crony like Miers, who's a blank slate he has had exactly the opposite effect. He's turned the conservative base against him, something heretofore thought impossible.

What so angers conservatives is that many put their heart and soul into getting this President elected, and for many - especially the religious conservatives - the primary reason for fighting was the issue of the Supreme Court, even more than the war on terror.

In short, it was perceived as the ultimate betrayal to his base, and comes at a time when he - and especially the party - need the base motivated more than ever.

A big part of the problem is that conservatives have been burned so often in the past by supposedly "conservative" nominees, that they're no longer willing to except "Trust Me". Fool me once, shame on you. Fool me twice (or in this case about 4 times - Kennedy, O'Connor, Souter, Stephens), shame on me.

Personally, as a conservative and a lawyer, I don't want another O'Connor. She wasn't a judge so much as a legislator. She was very good most of the time on the issues of federalism, but her opinions on hot button social issues were jumbled messes and embarrassing. Her fondness for various "prong-tests" and "gray areas" and 'middle ground" because she didn't want to "rock the boat too much" was maddening. Better that she just picked a side and come down one way or another instead of offering tortured explanations (i.e. affirmative action shouldn't be necessary in 25 years).

As to Miers, she may turn out to vote "my way" when she's on the Court, but there's nothing I can see yet, that would make her a justice that current and future generations of conservatives can look to as someone to emulate (like Scalia). Someone with a track record like Luttig or McConnell would have not only validated the 30 year struggle of "the base", but would have also given future generations of conservatives something to aspire to.

Instead what we get is a crony who never "fought the fight", and uncertainty about her judicial philosophy.

Posted by: bulldogpundit at October 10, 2005 04:37 PM


We are told Miers is conservative, but what does that mean? We are told she "won't legislate from the bench," but that also is not enlightening. Even Schumer & Leahy claim to subscribe to that view. Supporters assure us that she will vote correctly on this or that issue, but those are only short-term issues. I want to know her views on the federalism, substantive due process, the incorporation doctrine, the interstate commerce clause, etc.? Based on her career, I doubt she has any such views. In my experience, lawyers active in bar associations tend to be go along, get along, consensus-building types. Even those of a conservative bent feel compelled to pay lip service to the liberal legal orthodoxy of "diversity," expansive "civil rights," open access to the courts (i.e., no tort reform), etc. They are loathe to offend anyone. Trust me, there are no strong ideological legal conservatives serving as president of any bar association — at least I have never heard of one.

Posted by: Pat at October 10, 2005 04:37 PM


Some of the anger at the President might be better directed toward Dopey McCain and the other six dwarves - Graham, DeWine, Warner, Chafee, Snowe and Collins who cannot be counted upon to do anything but spin like weathervanes. Toss in Voinovich and a couple of other of our fine but spineless RINO's and the President's decision makes a bit more sense.

"I fought for Bork and all I got was Kennedy." may be a slogan to remember.

David,

The "base" is somewhat differently constructed than you indicate. You might want to check into its actual constiuent elements.

Posted by: Rick Ballard at October 10, 2005 04:38 PM


I'll defer to the Learned Mr. Hamilton in Federalist 76:

"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."

That, to me, says that the founders didn't want closely attached cronies taking the helm of separate branches.

It also says what the Senate would do.

I like Hugh Hewitt a lot, but there is NO WAY we conservatives would have been willing to accept a David Krendall nomination or anything of the sort, and it is the height of absurdity to suggest otherwise.

Posted by: Gonzo at October 10, 2005 04:38 PM


The Washington Times’ report on the reactions state and local Republican leaders are (or, more to the point, aren’t) hearing from regular people highlights that the professional pundits of the right aren’t the same as “the base.” A common theme seems to be “We trust the President.” Apparently that isn’t good enough for the Wills and Krauthammers. They seem to insist on a nominee who can match their mental agility and verbal dexterity. Regular folks seem more concerned with how the nominee, if confirmed, would vote, and more willing to trust the President’s judgment as a reliable guide to the answer to that question.

Posted by: Paul at October 10, 2005 04:38 PM


I do not think that one needs to be a legal SuperStar to interpret the Constitution. After all, the Founding Fathers did believe that the Government derives its just powers from the consent of the governed. They must have presumed that the language of the Constitution they drafted in the name of The People must be easily understood by The People. Otherwise we must conclude they knowingly usurped the consent-giving part.

They took care to explain the pieces that they felt could be misunderstood. If some part of the Constitution is not covered by the Federalist Papers, we must assume that it was very clear to everyone at the time what it meant.

So, to qualify as a Constitution interpreter, one just need to 1) know what those phrases meant when they were written, and 2) have an integrity to realize that any other interpretation would mean that the Government takes more power without the consent of the governed, - i.e., an usurpation. I have no doubt that Miers qualifies on the first count. I have been given no proof on the second.

P.

Posted by: Phil Yo Pain at October 10, 2005 04:39 PM


The more I hear those on the far right grumble, the more I think Bush made a good pick. I was once a Republican, but I left the party during the ascendance of the hard core right in the early 90’s. That being said, I still tend to vote R more than D.

If the far right ideologues grandstand and make public asses of themselves like many Democrats did during the Roberts process, then Bush could be doing a great service to the country, and possibly the party.

Exposing the extremists on both ends of the spectrum is a good thing, IMO (or maybe I should say that it’s good to let the extremists expose themselves….) This could be a rare opportunity for the more moderate, swing voting public to compare and contrast the behavior and intentions of the hard core members of both parties just months apart.

And the struggle between the conservative and moderate (and even libertarian leaning) groups within the Republican party has been going on for years. Just like the Dems. Of course, at this point, its really hard to know what is in this woman’s head, but I hope that will come out during the confirmation process. If it doesn’t there is going to be some splaining to do.

But I suspect Miers is an attempt to push the court more towards the center, and add a touch of real world, non-academic, common sense. Historically, that has been Bush’s path all along (as well as his father’s). His conservative face is just a product of the media, his political opponents, and quite possibly, of his own political advisors.

Posted by: jmaster at October 10, 2005 04:39 PM


If there is indeed a gulf between the commentariot and the grass roots, it is that when a Democratic president "pulls a Miers," only the commentariot will feel obligated to strive for some consistency in their pronouncements.

Miers' nomination sets a bad precedent for future nominees and reenforces the view that the SCOTUS is merely a political prize of the political branches.

Posted by: PD Shaw at October 10, 2005 04:40 PM


I cannot imagine someone being appointed by the President to the Supreme Court who could not discuss, off the cuff, issues of Constitutional Law. I wrote this entry, http://www.ericsgrumbles.net/archives/125112.php, on that topic on the 9th after the NYT article where Arlen Specter said he's giving her time to learn Constitutional Law first.

Posted by: Eric at October 10, 2005 04:40 PM


Everybody is wondering, "what was Bush thinking?" People are trying to figure out his strategy, saying he knew he couldn't win so stealth was the only way to go. Come on guys! This really shouldn't be that hard. Bush has always shown tremendous respect for the office he sits in. He views this nomination as something he has a high duty to our country to do the best he possibly can do, and so he wasn't thinking about strategy, politics, or his base when he made this pick. He was thinking about our country.

And to him, the best possible pick, for our country, was Ms. Miers. It's really that simple.

There is no way he is going to back down on this and there is no way she will withdrawal herself (since she knows how serious he is in choosing her).

Just for once, try to see this through Bush's eyes. Try to imagine why he would think she is truly the best possible pick.

When you do that, *then* you'll begin to understand what Bush was thinking!

Posted by: Dean Cooper at October 10, 2005 04:40 PM


I'm not a supporter nor a critic of the Miers appointment. However, I think many of the criticisms will either be addressed or prove to be correct AT THE HEARINGS - and we should all wait until she actually answers a question before we assume the worst. I made this point the day after her nomination, regarding the apparent desire of conservatives to "educate" the public on the proper role of the judiciary.

http://rovianconspiracy.blogspot.com/2005/10/more-on-miers.html

At what point will our side of the blogosphere realize that the goal of a nominee isn't to have a philosophical fight during the nomination process, but to win the philosophical fight in the Court. Seriously... the struggle to get to this position to change the court wasn't a struggle to have a stupid debate about original intent vs. judicial activism. The whole point was to get justices in the Supreme Court who understand and believe in Original Intent. We elected a President who we thought would live up to that goal - and his appointments thus far surely cannot be characterized as anything other than that. For us to go wobbly over another "unknown" simply because we won't be able to rub Shumer's face in the confirmation of a Janice Rogers Brown is short-sighted. It's similary short-sighted to say that we can't trust Bush on judicial nominees simply because he's spent like a drunk sailor - look at his record on judicial nominees and you should be pleased. And as we discussed previously, Bush might have a third pick - and if that vacancy ever occurs, it will likely be when he's a lame duck. THAT'S the time to have the debate over judicial philosopy, since confirmation might be unlikely anyway.
[...]
I'm not a Washington insider by any means (although I do get the kool-aid shipment from Rove each week), but I think the Right may be shooting itself in the foot here. The more they clamor for an "open" conservative nominee that results in an "open debate about judicial philosophy" the more Bush has to show his hand, convincing us that Miers is a strict constructionist. I don't know about you, but when ARC:Brian and I were listening to Rush & Cheney talk yesterday, I got the sense that Cheney wanted to tell him: Sssshhhhh, don't blow this. This is not good poker and we're probably going to regret it.

Regards,
St Wendeler
Another Rovian Conspiracy
http://rovianconspiracy.blogspot.com

Posted by: StWendeler at October 10, 2005 04:46 PM


We are told Miers is conservative, some say a "staunch" conservative, but what does that mean? It does not tell us how she will vote on any particular case. We are told she "won't legislate from the bench," but that also is not enlightening. Even Schumer & Leahy claim to subscribe to that view. Supporters assure us, without any solid evidence, that she will vote correctly on this or that issue, but those are only short-term issues. I want to know her views on the federalism, substantive due process, the incorporation doctrine, the interstate commerce clause, etc. Those are a better indicator of how she might rule years from now. Based on her career, I doubt she has a solid conservative viewpoint on such matters. In my experience, lawyers active in bar associations tend to be go along, get along, consensus-building types. Even those of a conservative bent feel compelled to pay lip service to the liberal legal orthodoxy of "diversity," expansive "civil rights," open access to the courts (i.e., no tort reform), etc. They are loathe to offend anyone. Trust me, there are no strong ideological legal conservatives serving as presidents of any bar association.

Posted by: Pat at October 10, 2005 04:46 PM


I was mildly disappointed but not surprised by the Miers nomination. I was disturbed by the immediate and vocal criticism of Bush’s pick coming from many of my favorite bloggers and columnists, reflecting some of the same withering, relentless criticism that the MSM and DowdWorld regularly level at the Bush White House—“cronyism”, “incompetence”, “arrogance”, “dishonesty”, even “stupidity” (this means you, Michelle).

This is criticism that the original Bush haters are happy to amplify. Just like on Meet the Press yesterday—who really thinks that isolationist and perpetual Bush antagonist Pat Buchanan represents the mainstream conservative movement? Certainly not Tim Russert.

George W. Bush represents the conservative movement more than any American breathing today. After all, it was conservatives who elected him. That includes the evangelical opinion leaders in my local Republican organization, as well as myself, a non-religious conservative who supports many of the goals of the Religious Right.

I am afraid that many of these angry conservatives are unconsciously releasing pent up frustration caused by the persistent negative coverage of George Bush when it comes to Katrina and Iraq. Another source of this frustration, though few conservatives care to admit it, is anxiety over the first SCOTUS pick, John Roberts. Face it when it comes to tangible track record, Roberts is really Miers with a fancier law degree.

WAIT AND SEE. If Miers turns out bad, George Bush’s legacy will be sent to the Ninth Circle of Hell, and he knows it. I believe we will get a conservative on the court with Miers. And John McCain needs to pay a price in Iowa and New Hampshire for robbing us of the enlightened debate we all would have liked to see.

Posted by: Charlie at October 10, 2005 04:46 PM


Glenn - BDP from anklebitingpundits.com here. Pat Hynes, my partner over at ABP is a bit more agnostic on the Miers selection than I am.

Politically, this is a huge blunder of epic proportions. A few reasons. First, the news for the President hasn't been great as of late. Many conservatives are feeling a bit down, especially with the GOP Congress not cutting pork and seeming to have abandoned conservative principles

All this news adds up to trouble in 2006, not as much for people voting Democrat instead of Republican, but more for conservative turnout being "depressed". Since, according to the 2004 exit polls, almost double the number of voters classify themselves as "conservative" as do "liberal", the GOP can almost guarantee a victory by turning out the base, especially in off year elections.

The one thing that would have fired up the base more than anything else (and indeed outweighed all the negative things put together) would have been to nominate a tried and true conservative jurist who would've caused the "fight" (I prefer to think of it as a "debate") about the direction of the court and each parties view of the role of the judiciary. The battle over the judiciary has been going on for years, but in the last 30 or so it has become fever-pitched. Since conservatives (especially on social issues) have been on the losing side of many cases, President Bush's election was viewed as the best opportunity in a long time to turn that tide in their favor - not just for the balance of his term, but for decades to come.

However, by picking a crony like Miers, who's a blank slate he has had exactly the opposite effect. He's turned the conservative base against him, something heretofore thought impossible.

What so angers conservatives is that many put their heart and soul into getting this President elected, and for many - especially the religious conservatives - the primary reason for fighting was the issue of the Supreme Court, even more than the war on terror.

In short, it was perceived as the ultimate betrayal to his base, and comes at a time when he - and especially the party - need the base motivated more than ever.

A big part of the problem is that conservatives have been burned so often in the past by supposedly "conservative" nominees, that they're no longer willing to except "Trust Me". Fool me once, shame on you. Fool me twice (or in this case about 4 times - Kennedy, O'Connor, Souter, Stephens), shame on me.

Personally, as a conservative and a lawyer, I don't want another O'Connor. She wasn't a judge so much as a legislator. She was very good most of the time on the issues of federalism, but her opinions on hot button social issues were jumbled messes and embarrassing. Her fondness for various "prong-tests" and "gray areas" and 'middle ground" because she didn't want to "rock the boat too much" was maddening. Better that she just picked a side and come down one way or another instead of offering tortured explanations (i.e. affirmative action shouldn't be necessary in 25 years).

As to Miers, she may turn out to vote "my way" when she's on the Court, but there's nothing I can see yet, that would make her a justice that current and future generations of conservatives can look to as someone to emulate (like Scalia). Someone with a track record like Luttig or McConnell would have not only validated the 30 year struggle of "the base", but would have also given future generations of conservatives something to aspire to.

Instead what we get is a crony who never "fought the fight", and uncertainty about her judicial philosophy.

Posted by: bulldogpundit at October 10, 2005 04:46 PM


I agree with ALANH. Miers could have walked through this if Bush had the opportunity a year ago. Choice of conservative/moderate/liberal is not the issue - it is cronyism, and Bush's choice is nothing more, nothing less.

Also, I don't think Skymuse really thinks we are missing the big picture. I think his praise of Miers with such faint damnation shows his disgust.

Finally, has anyone really discussed the walking confict of interest here? How many potential cases will she have to recuse herself on?

Posted by: john at October 10, 2005 04:47 PM


Squiggler et al:

1. State & Country Chairs & Committee members are not the base; they are fairly elite members of the party.
2. The story was anecdotal; not even close to a poll of such political activists.
3. Chairs & Committee members aren't going to oppose "their" president. However, "their" poll workers, GOTV soldiers, etc. might have no qualms about it.

Posted by: lyle at October 10, 2005 04:47 PM


I agree that the White House was wholly unprepared for the fallout of the nomination. Either that or they just decided they didn't much care about the fallout.

The theory Limbaugh's been advancing on this lately -- that Bush had no confidence in Senate Republicans with a well-documented conservative nominee -- could make some sense as well.

Posted by: Scott Hartig at October 10, 2005 04:48 PM


1. I don't understand why we are passing up better qualified judges with a proven track record in favor of an unknown commodity whose biggest virtue appears that she is a friend of Bush.

2. This sets a horrible precedent in a number of ways. To me it says that to get on the Supreme Court you should A) be close to the President and B) have as little of a paper trail as possible. People will clear, well-thought out opinions who don't get Christmas cards from the White House need not apply.

3. If it's a fight Bush wants to avoid, why? Are you telling me that Scalia could be confirmed by a Democratic Senate but a Luttig or McConnell can't be by a Republican one? How pathetic is that?

4. If John Kerry/Bill Clinton/John Kerry did this we'd all be up in arms.

Posted by: Colin at October 10, 2005 04:48 PM


I oppose Miers, and have no faith at all in "trust me" defenses. Why rely on faith when we had people for whom we could rely on history?

But I agree its disgusting to impugn her because she's not a Judge, or b/c she didnt go to an Ivy leauge school. For once I agree with Hugh Hewitt. Judges are nothing more than lawyers with political ambitions and friends, and we all know that not every lawyer is brilliant. It follows then, you don't have to be brilliant to be a judge. Your clerk does all the work anyway.

As for the Ivy leauge business -please. Soem of the biggest morons I've ver met in my life came from the Ivy Leaugue. Some of them are surrently sitting on the Supreme Court. In this day of affirmative action and race/gender based admissions, what does an Ivy League degree mean anyway?

Posted by: David Farkas at October 10, 2005 04:49 PM


I think Sullivan has it right, in that she's the nominee along with Roberts, to protect GWB's executive privilege and behavior regarding the Iraq war, especially prisoner abuse. With his way, W will never have to answer to anything.

Posted by: John at October 10, 2005 04:49 PM


To those who think it would be a good idea for a "regular person" to sit on the Supreme Court:

I wonder if you think it would be a good idea for a "regular person" to be your surgeon.

It isn't "elitist" to insist on a certain standard of expertise. Law has been around as long as medicine, and like medicine, it is rife with unique language and difficult concepts. I don't think an associate justice necessarily has to be top-tier law school graduate, or even a former judge. But like it or not, he/she is going to come across terms like "avoidance doctrine", and "Lemon test" and yada yada yada.

How can a Supreme Court justice pose intelligent questions to counsel while flipping through Cliff Notes under her robes?

(I realize I am being somewhat facetious here, and understating Mier's qualifications. But the point is remains -- when it comes to lifetime appointments for the third branch of government, there simply is no excuse for not selecting among the best and the brightest).

Posted by: Kman at October 10, 2005 04:49 PM


I'm just still floored by the tone-deafness of this right on the heels of the Michael Brown business. It's like Clinton appointing a blonde with really big boobs-- can't you see how that would be received? Are you that eager to feed Jay Leno and The Daily Show material?

Unfortunately, what I fear is that Bush is simply worn out after so many years of the war(s), hearing that he's an idiot and our booming economy sucks, Social Security is doomed so don't you dare try to fix it, etc. And so he's doing what's natural in his family-- reward the loyalists. I feel like the marking-time of the final Bush years began with this nomination.

Posted by: Mike Gebert at October 10, 2005 04:49 PM


"If Harriet Miers didn't rule the way George W. Bush thought she would, he would see that as an act of betrayal and so would she."

All right, that's it. I've been on the fence, but now I'm opposing her. The last thing we need is to give the Bush clan a puppet justice on the Supreme Court.

I'd say that even if the Bushes were real conservatives - which of course they ain't.

Read my lips: No to Miers.

Posted by: Brian at October 10, 2005 04:49 PM


Dean,

Look though Bush's eyes and realise his respect for the office and the Constitutiion?

McCain-Feingold.

Posted by: M. Simon at October 10, 2005 04:55 PM


The battle of the blue-reds and orange-reds is on, and may the big GOP tent stay any shade of red after this is over. Given all of the conflicting reports on Miers' positions, it's difficult to know which side of the divide to jump to, but it's not a stretch to imagine that Bush knows the Supreme Court of the next twenty years will be a substantial part of his legacy, second only to or on par with the GWOT and keeping the economy from going tilt after 9-11.

Jeff Talbot, when you say, " It comes down to this: Miers was in charge of helping the president locate the very best possible judicial candidates for the job of Supreme Court Justice--that was her job," don't you remember how Cheney was put in charge of vetting VP possibilities? If Bush were to ask me to interview potential historic renovation specialists for the WH, why I'd be thrilled to help him pick the *best* person for the job since that's my field---

Posted by: c at October 10, 2005 09:17 PM


The commenting problems (and my lack of patience) have added some credence to the "echo chamber" label leveled against the blog world.

I heard myself 3 times....

Posted by: jaymaster at October 10, 2005 09:22 PM


The GOP won when the pro-lifers started coming bask to the cause under Bush. Now that is about to all go away and you can kiss that sweet majority bye bye.

Pro-lifers are first and foremost single issue voters. This nomination is the big show for them. If Miers is not solidly pro-life (and there are plenty of reasons to believe that she is not--see homepage), pro-lifers will desert the GOP for the rest of the decade or better just as they did before.

The best thing is for this nomination to be withdrawn and for a Luttig or McConnell (or Jones or Clement) to be put up. Then the GOP will not suffer when or if these judges don't vote one way or the other. With Miers it is everything or nothing.

Posted by: Paul Deignan at October 10, 2005 09:27 PM


If Harry Reid were president, and he nominated her, then I would be happy with her, since she's not a far left moonbat like Ginsburg.

But for me, there are 3 main issues. Is she one of the best picks for the job? How will she rule on issues I care about? And why did Bush nominate her.

First, no, she's clearly not among the best, by any standard. Okay, she was the woman to do such & such in Texas. Well, there are at least 49 other women to be the first in each state to do the same thing.

I have no idea how she will rule, but it seems like she will be much like the President. Pro-immigration, pro-affirmative action, probably pro choice, albeit against it personally and so relunctly, probably pro the government side in Kelo vs Whatzit. I don't really care about abortion myself, but that Kelo thing really bugs me.

On the plus side, she seems to like guns. Which is a big improvement over Bush, who seems apathetic at best, slightly hostile at worst.

But thirdly, is starting to bug me. Did he nominate her just to have a crony/puppet on the court? In essence that seems like what she will be. While I know it's happened in the past, I don't think it's a good thing for a Supreme Court judge to have such strong ties to a President. Presumably she would recuse herself on a lot of things, but...

Still, this whole thing just irks me. Apparently Republicans are not allowed to nominate candidates who have taken stances on issues, or have judicial philosophies, while the Democrats can.

Posted by: JeremyR at October 10, 2005 09:31 PM


As I wrote on my blog:

I think, when discussing my overall reaction to the nomination, and the overall reaction of just about everyone, I can safely say that I speak for most of us when I say,

WHO?

This choice was quite out of left field. But it does make a great deal of sense that Bush would do something like this once you understand what type of person he is.

I think that Bush has long ago proven, as Steve Sailer says, that he prizes loyalty in his appointees, but does not require competence. Until Michael Brown, no one was ever pushed out of the adminstration for incompetence, only if they said something that contradicted the line the administration was pushing. So it is unsurprising that he would hire a crony who called him "the most brilliant man she had ever met".

Posted by: Glaivester at October 10, 2005 09:39 PM


No one who is considered worthy by the conservative base would get through the Senate, given the hostility towards conservatives shown by Specter, Snowe, Chaffee, and others. Getting a reliable vote on the Court is the goal, not scoring debating points. Let Scalia write the opinions, and let Miers add her name.

Posted by: John at October 10, 2005 09:39 PM


The Monk is a proud member of what Captain Ed called The Rebel Alliance, as you can see at these posts:

http://thekeymonk.blogspot.com/2005/10/officially-against-miers.html

http://thekeymonk.blogspot.com/2005/10/instaprof-dead-wrong.html

and especially
http://thekeymonk.blogspot.com/2005/10/real-republican-quota-supreme-court.html.

I voted for this President because he would try to win the War against the terrorists and said he most admired Scalia and Thomas of the sitting Supreme Court justices. And I liked his stance when urged to pull down the nominees that the Democrats in the Senate had filibustered.

After the undeniable brilliance and likely conservative bona fides of John Roberts, the President had the best opportunity of any post-World War II Republican President to help shift the Supreme Court back to a stricter construction of the Constitution. He failed, and nominated his friend and admirer instead. Bad form all around.

Posted by: The Monk at October 10, 2005 09:41 PM


I think that the anti-anti-Miers side (including the administration) is missing that there are two separate issues here, the first one of which is: why wasn't the most qualified candidate chosen for this position? The second is about Ms. Miers herself, but the more the argument goes on, the more clear it is that the Bush administration has yet to answer the first issue.

Mr. Hewitt, for example, seems to think that by admitting that she wasn't his first choice, either, that we can skip directly to the "but she's qualified enough", and charges elitism for those of us who are still flummoxed by WHY the president would choose someone other than the Most Qualified Available Candidate, because no one is arguing that she is.

If you were a supervisor about to hire someone, and you'd interviewed all of the possible candidates, under what circumstances would you choose someone other than the most qualified? And by most qualified, I mean in all respects: the best experience for the job, the most learned of your candidates, someone with appropriate decorum, discipline, and temperment.


Here are some reasons you might pick someone other than the most qualified, assuming that such a person would take the job, if offered:

a) You would rather get more bang-for-your-buck, and hire someone less expensive, even though they aren't as qualified.

b) You think that "diversity" by some measure--sex, race, political viewpoint, physical challenge, etc.--is better for your department than the most qualified candidate.

c) You want someone who is easier to control than the 'Expert'.

d) Your personal judgment overrode the best decision for your department because you like this person "best".

Are there other possible reasons? I can't think of any. And that's the problem.

I think that for most of the Conservative Base, we find these above reasons illogical or repugnant, we can't think of any others. We can't *justify* this decision.

Sure, there's the basic political reason: Bush didn't WANT a fight, and didn't believe he could get the most qualified candidate confirmed without one, but we simply don't understand how that's true for ALL of the candidates between the Top Candidate and Ms. Miers.

The more this fight goes on, the more clear it is that the administration isn't *interested* in telling us why they didn't choose the best possible candidate. Maybe they see that as political suicide for Ms. Miers' confirmation. Perhaps, but all the more reason why we believe this was a terrible choice--because no one can tell us why the best wasn't chosen.

Posted by: Allison at October 10, 2005 09:41 PM


There have been people actively trying to bring down the President for the last 5 years. There have been other people defending him, despite constant dissapointments, often to receive heaps of abuse themselves.

When it came down to the issue the defenders of the President most cared about, the President chose to listen to the political leader of the group trying to bring him down for the last 5 years, picking a Supreme court nominee the leader said was acceptable and staying away from picks he said were off-limits.

This is the biggest reason why I'm pissed about this. And perplexed.

Posted by: scott at October 10, 2005 09:43 PM


Please add my opinions to the "social experiment" section of this debate. The more the talking heads speak bad about this Nominee the more I like her. Nothing to do with her, more a reflection of my opinion of "group think". I would say, as a tradesman, that is working with my hands for you white collars, I never have confidence in decisions made by the highly educated. I hire them to write my news articles, fix my broken bones and do my taxes. I would never let them run my business, not practical enough. Maybe this nominee will be more practical by reason of not to much "elite" education. Nuff said

Posted by: JeffH at October 10, 2005 09:44 PM


I think I've got it figured out.

It's the ultimate Rove-a-Dope. If Rove really did have as much pull in nominating Miers as we've been led to believe, then he's undoubtedly a undercover Democratic operative twenty years in the making.

It's brilliant if you think about it.

Posted by: Nathan Lanier at October 10, 2005 09:49 PM


I frankly am simply confused when I read "the Constitution is a dead document." Why can't wingers get it into their little pointed heads that the framers of our Constitution PLANNED it to contain some flexibility? If they did not, how do you explain the twenty-some-odd amendments appended thereto?

There is no way that the authors could in the mid eighteenth century anticipate our current technology -- e.g., electricity, telephones, motor cars, computers, vaccines, organ transplants, superhighways, nuclear power plants, etc. -- and if anyone has read the Federalist Papers or any of the framers other writings, one would know they were very wise and very forward thinking.

It seems to me to be disingenuous, hypocritical, and a host of other characterizations I won't waste the time to type for the right to be so incensed that Republican Senators will know nothing of Miers' philosophy prior to the hearings, yet it was perfectly acceptable in the Roberts hearings that the Democratic Senators were were left odd man out, so to speak.

But, frankly, what genuinely amuses me most is that inspite of what Ken Mehlman wrote of Democrats rallying loud and proud against the Miers nomination in his latest fundraising letter -- does the GOP ever stop trying to gouge more contributions out of its members, ever? -- it is not the Democrats kicking up dust over this discredited nomination, it is the Republicans!

And what truly disgusts me is that the Republican talking heads cannot show some self-restraint and argue against this nominee in logical terms, citing legitimate bases for disagreement. No, they insist almost to a man/woman on attacking Harriet Miers, the person. What is with Republicans that they so love to attack women? Presidents' wives. Candidates' wives. Female senators, congresswomen, and on and on and on. What's up with that?

These same individuals tell us that it's okay that the president can't get three words out of his mouth in proper order or with proper pronunciation, but that's okay because he's a good ole boy. He's not one of 'em thar East Coast liberal elitists. Why, he's salt-of-the-earth. He's a Texan. You know, someone you can have a beer with. Forget that he led a silver spoon life and went to the best schools. He's everyman! Now these individuals deride Miers' education because she did not graduate from an Ivy League law school. She's not pure enough; she isn't pro life enough.

Come on!!!!! The knock on Miers is that she's too close to the president. She was in on every major policy decision he's made in almost five years. When these matters -- e.g., Abu Ghraib -- eventually reach the Supreme Court, could we expect that she would recuse herself? If Antonin Scalia is any role model, it's not likely.

Harriet Miers is the ultimate corporatist. That is a sin in my book. Corporations have more power than individuals, who supposedly have voting rights, and each year the Supreme Court rules on cases that cede more and more power over our lives to corporations. How many more jobs will be sent offshore while unemployment benefits get pared to the bare minimum? How much will a gallon of gasoline cost if the corporations get to make all the rules?

Instead of pushing the Court to the extreme left or the extreme right, how about we center it? Wouldn't everyone be a little better off if we did? It's time to wake up, people.

Posted by: SherAn at October 10, 2005 09:51 PM


It may be worth considering that one of the reasons conservatives are so angry (aside from the obvious sense of betrayal we're feeling right now) is because the President has stuck us between a rock and a hard place.

On one hand, we could back the President's choice and sacrifice a boatload of our principles and 20 years of hard work building a serious conservative "farm team". On the other, we could stand up for conservative principles, keep our integrity, and potentially damage the Republican Party.

Gee, what a wonderful choice. Thanks a whole lot.

IN fairness, though, it's not just the President. Much of this craptacular nomination is because of spineless Senators who are apparently only capable of fighting for their own self-aggrandizement (McCain), a piece of that tasty Maverick Pie (Graham), or a chance to poke a finger in the eyes on conservatives (Specter and the Republican remainder of the Feckless 14).

Right now, having read far too much about Miers and far too little about the decidedly unconservative way the President treats the Constitution, I'm thinking that the best things conservatives could do is to drop the elected deadwood in a very public fashion. Maybe it'll damage the party and maybe it won't.

In my mind, though, principles and integrity is far more important in the long run than keeping political power.

Posted by: Jimmie at October 10, 2005 09:58 PM


Kman,

I hardly think Miers is just a plain old "regular person," given her experience with the law over many decades. That said, your "surgeon" argument doesn't hold water. I cite Jackson Pollock in refutation.

Frankly, I wasn't all that enamored of Miers initially, but with all the incessant whining going down in conservative "punditville" (whining that seems indistinguishable from that typically heard from the left on any variety of subjects), I'm liking her more and more.

Of course, too, we've not heard a peep from her yet -- is negative conclusion before the fact the status quo these days?

Posted by: Mark at October 10, 2005 10:02 PM


SherAn - Your comments are why most folks insist that Supreme Court Justices know a bit about the Constitution before they get the job.

Yes, the founders expected that the Constitution would change which is why, as you noted, they provided a specific procedure for it to change. What those in the "living document" camp believe, though, is that judges may also alter the Constitution through precedent and superprecedent and superduper precedent. There's not a scrap of writing from the founders that ever even intimates that they expected the Constitution to change by any method aside from the one that uses the democratic process and allows the people to decide on that change.

The point here is that most conservatives don't want to move the court right, left, or center. They do not want it to have a political ideology whatsoever. What they want it to do is to interpret the Constitution according to the words of the Constitution and the writings of those who wrote and ratified the Constitution. Right, left, or center are entirely out of the question.

Posted by: Jimmie at October 10, 2005 10:06 PM


This reminds me of the cartton wherein Sylvester the Cat is scared to death by a gigantic, menacing shadow, which in reality turns out to be a baby kangaroo.

I wanted a 900 Lb. gorilla unleased on the reactionary left.

OUR gigantic, menacing showdow turns out to be Hello Kitty.


Posted by: N. O'Brain at October 10, 2005 10:10 PM


I have heard criticism of elections of judges and prosecutors on the basis that it is "...too political." The proposed appointment of Harriet Miers illustrates that the appointment process is more political than the election process. Evan Bayh once elevated his personal lawyer to the Indiana Supreme Court. It was ridiculous and offensive by the Democrat Evan Bayh, and it is ridiculous and offensive by the President. Can you imagine that we would have a less qualified and less well known person if we elected U.S. Supreme Court Justices?

This is not the Circuit Court Judge in Austin. The most powerful man in the world, with the greatest ability to find qualified candidates in history, picks his personal lawyer. Sickening.

Posted by: Rob at October 10, 2005 10:11 PM


1. Why is Bush nominating an unknown commodity who is only distinguised by her personal ties to the President ahead of proven conservatives who are also, by the way, really good judges? Why are we taking a risk?

2. If Bush is scared of a Senate confirmation fight, why? Scalia was confirmed by a Democratic-controlled Senate -- are we scared that a McConnell or Luttig would get voted down by a Republican-controlled one? How pathetic is that?

3. This sets a terrible precedent. The lesson here for aspiring Supreme Court justices is A) don't leave a paper trail and B) be a friend of the White House occupant. If you have a history of well-thought out opinions that confirm your standing as a conservative and didn't get a Christmas card from 1600 Penn, forget about it.

4. We'd all be kicking and screaming if Kerry/Gore/Clinton made an equivalent move.

Posted by: Colin at October 10, 2005 10:12 PM


First, thank you for your blog. I almost always find it interesting.

I am a retired lawyer. I have argued three cases before the U.S. Supreme Court. Two are often mentioned, at least as footnotes, in Constitutional Law texts.

I think we are a little off to focus on ideology and politics. I also think we miss something by focusing on Miers in isolation.

I do not want a "great" Justice. I want a "great" Supreme Court. No single justice decides a case before the Court. The Court as a whole does.

Though I tend conservative, my "great" Supreme Court is not necessarily conservative. A great Supreme Court is one that has an open mind -- one that sees each case not just as the stuff to be pressed into another brick in a long running ideological argument, but as an individual question to be decided on its own facts and peculiarities of law. Cases are messy things and jamming them into ideological holes does damage. A great Supreme Court is one that has intellectual integrity -- its decisions are defensible as logical, honest outgrowths of the facts and law in the case. A great Supreme Court is one that decides matters clearly and forthrightly and thus provides guidance for lawyers and inferior courts.

What do I mean by an open mind and intellectual integrity? In one of my cases the concurring opinion started off :

"I join the opinion of the Court, but I add these comments to emphasize the narrow scope of today's decision."

and ends with:

".....the Court has been presented with another of those cases - "few in number...."

Those words are a tribute to the then existing Court -- the four judges who concurred opposed the result ideologically. Unwillingly, but honestly, they nonetheless reached it. I do not think that such opportunity for success is as open in today's Court.

In my opinion the present Court has two great failings. I suspect these are the result of the present emphasis on ideology and a near equal ideological split.

First, it cheats. It fails to discuss or consider facts that are inconvenient to its decisions. It ignores or silently redecides the trial court's findings of fact. This corrodes justice.

Second, it lacks clarity. Perhaps in order to attract a swing vote in the middle, its majority opinions are often vague, muddled, and internally contradictory. It is all too fond of various forms of "balancing" tests, and too often poorly defines them. Most disputes are settled without litigation because the lawyers and the parties have a fair idea of what the result would be if they litigated. Losing that certainty exacts a serious and real cost on society. It also gives increasing scope for unjust causes of outcome -- which trial judge was drawn, where the case was brought, what the decision of the U.S. Attorney was. Uncertainty does serious harm to justice.

I know very little about Harriet Miers. What I have read, however, suggests that she would bring several things to the Court.

First, she seems a detail person with a strong desire to grasp all the facts before deciding. Good for her. This court badly needs someone who could say at conference, "But what about the district court's finding at paragraph 113?" or would put in red ink on a circulated draft, "Contradicted by testimony at page 456 of the record". Attention to detail can both force the court to a greater intellectual rigor and to a more open mind.

Miers background suggests to me that she will also recognize that certainty, by itself, has a value to law that may be greater than ideological battle. The present court lacks this appreciation.

She also seems to have courage and self confidence. I appreciate a Justice who goes where her reason leads even if she ends up alone. I also appreciate the toughness suggested by a small lady who once plinked at tin cans with a .45 .

My two favorite modern justices, John Marshall Harlan II, and Hugo Black, were not themselves great justices. However, both made the courts they were on better courts. Harlan's intellectual integrity forced greater intellectual honesty on his brethren. Black forced them to come down from the philosophical towers of reasoning and look at what the Constitution said. He also taught that a straight reading of the Constitution was not only a shield against change, but a sword for personal liberty and civil equality.

As to qualifications : Harlan was a patrician that would meet every requirement of even the snootiest law school professor of the period. Black was an ill educated Roosevelt political crony of sordid and despicable background. Both became superb choices, not because they were great justices but because they made the Court better.

I think Miers could make this Court better. I look forward to learning more about her in the hearings. If we listen for ideology, I think we will all, left and right, be disappointed. If we listen for character I think we might all feel better about the nomination.

That's a bit more than two cents from an old geezer.

Posted by: John Lederer at October 10, 2005 10:12 PM


While some of the over-the-top attacks make me sympathetic to Harriet Miers, I'm more and more convinced that Bush anticipated the fallout this would create on the right.

So I'm wondering, did Bush expect this nomination to be rejected?

The obvious question then becomes why.

Posted by: Eric Scheie at October 10, 2005 10:15 PM


SkyMuse's post of the President's position boils down to this: "Trust Me."

Conservatives rightly ask, "Why?"

SkyMuse says the President answers: "I've failed you on immigration, spending, governmental growth, entitlement growth, permanent tax cuts, Social Security reform... but I've picked really, really good judicial nominees, so trust me."

Conservatives answer: "We'll trust. You need to verify."

SkyMuse posits the President's position as, "What about Roberts?? Besides, she'll vote the way I want her to vote."

Conservatives answer, "We don't want an ideologue. We want someone with a nourished judicial philosophy."

SkyMuse doesn't answer this point, neither does the President, but it seems to amount to one big, "Huh?"

Posted by: Patrick at October 10, 2005 10:18 PM


Great discussion above...I think it illustrates that the conservative movement is alive and well, featuring a great number of viewpoints and opinions. Quite contrary from the "Civil War" that the MSM would have us believe currenltly exists within the party, I think we see that there are an abundance of ideas, but certainly not a war.

There is a great post that makes this point far better than I do over at tomopia.com. Enjoy.

Posted by: DCGiant at October 10, 2005 10:20 PM


One of the brighter spots of Bush's Presidency has been the high quality of individuals he has nominated to the federal courts. It comported with his promises while running for office, and was undoubtedly a decisive consideration for a significant number of voters.

Bush's nomination of John Roberts, a man of obvious intellect and experience and competence, further solidified my impression that Bush had established a very high standard for filling judicial vacancies. He sought the best nominees possible, confident that their qualities would make it difficult for the Senate to refuse to confirm them. And if the Senate nevertheless refused, the American people would hold Senators responsible, as they did in 2002 and 2004.

We neither need nor want the Supreme Court to be a super-legislative body consisting of nine life-time members accountable to no one. I just want the Supreme Court to fairly and objectively interpret the law and abide by the clear words of the Constitution. If a Justice truly acts as an "umpire", and truly applies the Constitution as it is written and was intended without inventing meanings which aren't in it, then I am happy. Because I'm confident that an honest and intellectually-competent Justice will in most cases arrive at the correct conclusion.

That's what makes the Harriet Meirs appointment so disappointing. In one stroke Bush has obliterated his prior record of seeking excellence. He has applied a "result-oriented" standard rather than a quality standard. He has validated the viewpoint that the Supreme Court is indeed a super-legislature, and that the only thing that matters is whether a Justice will "vote right".

This is why the Senate should reject the Meirs nomination. The damage to Bush has already been done; no one will ever again believe that his only concern is with quality and that his only desire is to choose the best person possible. But by rejecting Meirs' nomination, we can at least retain the ideal of a Supreme Court as an objective arbiter rather than a politicized legislature. Bush will be under enormous pressure to replace a rejected Meirs with a top-notch individual whose qualifications are beyond reproach.

If ever there was an occasion for the Senate to fulfill its Constitutional function of filtering out bad Presidential appointments, this is it.

Posted by: Daniel Wiener at October 10, 2005 10:20 PM


TO: Glenn Reynolds
RE: The Miers Stalking Horse

Personally, I think Miers is a stalking horse. That the real candidate is waiting in the wings until Miers is put down, giving the real candidate a better chance at the position.

After all, if the Miers bid is brought down, the opponents will be sated with this 'kill'. That makes it somewhat easier to bring forth another candidate for the position with less resistance from the Senate, on the one hand, and more support, on the other. However, on the third hand, one never can tell how these things will work out.

We'll see what happens, I'm sure. But whether or not we'll 'appreciate' it remains for court historians to determine. Probably after we're both gone from this venue.

Regards,

Chuck(le)

Posted by: Chuck Pelto at October 10, 2005 10:24 PM


So Bush has a great record nominating judicial appointments and the Miers nomination blows it?

Why? Because you say so?

I've been absolutely stunned by the negative reaction to Meirs. And disgusted by its uncivil expression.

Most of what I have heard I would not consider part of a 'great discussion', more of an emotional outburst.

The vehemence of the reaction says to me that some people want their own activist on the court and they're hiding behind criticism such as 'not a constitutional expert', 'not a judge', 'no record', 'not on our list', 'cronyism' before they've heard her utter even one word.

I guess we can add another Derangement Syndrome virus to our vocabulary. How about MDS? :)

Seriously, I think we should all wait for the hearings. How about an up or down vote? What a concept.

Posted by: Syl at October 10, 2005 10:36 PM


Harriet Miers's problem is that no one knows her judicial philosophy. The problem with many past GOP-nominated judges is that we knew their judicial philosophy but that didn't prevent them from drifting left and ignoring the Constitution. Still, conservative mavens in print and the blogosphere want a known quantity even though history has shown that judicial philosophy is no predictor of what the individual will do on the bench inasmuch as people change/succumb to pressure/whatever. Well, there is no such thing as a known quantity. At best, we can only trust that people will do that which is in accordance with the Constitution. That puts the mavens in the same camp as President Bush who believes he knows Ms Miers is a conservative and will honor the Constitution. So, we are all relying on faith; the difference is that conservative mavens don't have faith in the same person that President Bush does.

As for the absurd claim that Ms Miers is not qualified, examine her win-loss record, the types of cases she argued, whether or not she was able to persuade any court not to accept an appeal, the complexity of the issues involved in the cases and accept that Ms Miers is qualified, especially since the Constitution does not require any judicial experience for a seat on the Supreme Court.

Finally, in the words of Justice Felix Frankfurter, "audi alteram partem." Hear the other side. Let us give Ms Miers a chance to be heard and desist from demanding certainties when, where men are concerned, nothing is certain.

Posted by: Helen at October 10, 2005 10:36 PM


To: Daniel Weiner
cc: the world

I've been stuck in Captain Ed's "Trench-Dwelling Dogfaces" camp for days, leaning, if at all, toward the Hewitt/Beldar-led "Loyalist Army" camp. Your point that the damage is already done, whether Miers is confirmed or not, just moved me to the "Rebel Alliance" camp for good. I'll be quoting from your comment in my next post on the matter. Thank you for pointing out what I've been missing.

Posted by: Bill Faith at October 10, 2005 10:38 PM


Some one earlier said trust Bush because he respects the Constitution.

McCain Feingold

Posted by: M. Simon at October 10, 2005 10:43 PM


The Right is freaking out because it wasn't someone like Janice Rogers Brown, and the Left was about to go into full rant and rave mode, took a deep breath to let out that scream and just got stuck there. This obviously wasn't a candidate that either side was expecting.

She'll probably end up getting confirmed, but I'm not convinced she's the best person for the job. I think The Left has it's hopes pinned on Miers going towards the left after being confirmed, and The Right is scared to death of that. I personally don't think she'll end up doing that in the end... Doesn't make her the correct pick though.

Posted by: Dean Johnston at October 10, 2005 10:43 PM


For me Miers is the straw that broke the elephant's back - short term evangelical victory (and I'm far from convinced she is a believer) over long term constitutional lessons - very foolish.

From illegal aliens, to the lying FBI (Murrah, etc. and now the Sooners' suicide bomber), to the spending and lack of vetoes of same, to the Federal take over of education, to the increasing economic fascism (support for public-private partnerships), to the GOP Congress' power over principals I've finally had it and will vote to split the Congress in O6 - Dims get the House.

Ten years in the grass roots, but no more.

I'll support the election of a good sheriff in my county and I'll tend to my family while attempting to isolate them from the increasingly intrusive government and the exponentionally corrupt society, but the GOP and President Bush have lost me.

With the militarizing of all future emergency responses the Republic is finished - we all live in a police state now -- unless God moves.

Posted by: Jericho at October 10, 2005 10:44 PM


My eight reasons for opposing Harriet:

http://nooilforpacifists.blogspot.com/2005/10/my-reasons.html

1) She isn't the most qualified candidate. She graduated from a third tier law school, clerked for a trial, not appellate court, practiced law with a scant appellate record, published little or no scholarly work, and thus only minimal exposure to constitutional issues, with serious questions about performance in her current job. Contrary to the claims of Beldar and The Anchoress, objecting to an "0-in-6" record is neither elitist nor anti-Texas bias: it's the wisdom of experience. Especially with several better-qualified options available.

2) There's little evidence she'd become a reliable conservative vote on the Court, much less a Justice in the mold of Scalia or Thomas, as the President promised.

3) Suspending judgment until Senate hearings isn't an option: "Having defended Roberts's right to be silent before the Senate, conservatives face an awkward conflict between blind faith and principle."

4) Even were Justice Miers reliably conservative, that's not enough. Constitutional conservatives look more to process than outcome. What matters is her reasoning, her writing, her persuasiveness, as David Limbaugh said:

"Most, if not all, of the liberal justices on the Court are intellectual heavyweights. When a vacancy on the Court occurs, the president has a solemn duty to nominate the best and the brightest. He should choose not only strict constructionists, but those who can hold their own against the liberal activist justices who are steadily rewriting the Constitution and removing, brick by brick, its foundation."

5) Miers's thin record suggests vulnerability to the "Greenhouse effect."

6) The Miers nomination reveals the President erring like a liberal: treating the Supreme Court as a law-making, political branch of government. Add the cronyism and the nomination could establish a horrible precedent for future Democrat Presidents.

7) Even were politics relevant, Bush compromised long before the necessity for compromise was established. The President made the classic CEO mistake--he negotiated with himself.

8) It's far from clear that compromise today brings electoral victory tomorrow:

"Let 'um reject Janice Rogers Brown--we'd nominate Owen. Let 'um reject Owen--we'd nominate Alito. Either would be higher ground on which to fight in '06."

Though it pains me to depart from the President, Miers should withdraw before the Senate votes.

Posted by: No Oil for Pacifists at October 10, 2005 10:52 PM


I'm looking forward to the hearings. At this point, I'm muuuch more interested in hearing from Miers herself than her detractors or boosters.

As a sign of how blog-dependent I've become for news, I thought her name was "MEERS", not "MY-ers" until they spoofed her on SNL.

Posted by: Chuck at October 10, 2005 10:55 PM


Hell hath no fury like a movement conservative scorned! I'll stand by my comments on my blog:

"I think this is what is going on among the elite conservative intelligentsia (maybe I should call them the Commentariat): They felt entitled to have Bush nominate a justice from among the stable of conservative legal titans they felt had been developed over the last 20 years. When he didn't do their bidding they felt personally betrayed, and they are reacting emotionally. Their resulting intellectual sloppiness is typical of what we see when smart people let their emotions rule their thinking."

Yes, I know most of the commenters here are not part of that elite conservative intelligentsia. But Krauthammer, Ingraham, Will, and Fund (among many others) certainly are. We all need to get over this.

Posted by: Lowell Brown (The Hedgehog) at October 10, 2005 10:57 PM


I don't know. I'm a blogfan, but I'm starting to wonder if part of the draw is being able to be outraged about ANYthing.

This Miers nomination is showing me that.

Posted by: Chadster at October 10, 2005 10:59 PM


Bottom line-Hes just looking for someone croney to rubberstamb his wrong Iraq war(in a nutshell). But hey. Waht do you expect from a dhinger.

Posted by: iraqwarwrong at October 10, 2005 11:06 PM


Here's the funniest thing about the stopmiers now website -- when you click on the link for Myers' qualifications -- you get an error message: "Qualifications not found." Am sure this is deliberate!

http://www.stopmiersnow.com/qualifications.php

Posted by: courtblogger at October 10, 2005 11:07 PM


Dear Instapundit,

I am just a conservative foot soldier. I am increasing distressed and pained by the ongoing "konservative Selbstzerfleischung" created by the gigant elitist conservative pundits on both sides of Ms. Miers. They all want to win their argument just to prove their intellectual superiority and complete forget the bigger picture. It seems it does matter much to them if the Democrats gain the control og the Senate and the House in 2006.
For this reason, I am seeking refuge at "DriftwoodUSA" http://driftwoodusa.blogspot.com/
Belmondo, ....a laughing tear

Posted by: Belmondo at October 10, 2005 11:07 PM


Not everyone at Polipundit is "opposing" Miers.

Most notably it is the ANONYMOUS OWNER of Polipundit that has voiced his oppostion.

Posted by: va at October 10, 2005 11:10 PM


Coporate lawyers think in terms of win and lose, and to hell with the average citizen. Mayors, Governors, and judges from every level are exposed to the fact that sometimes decisions are ambiguous, there are no clear winners and losers, and the public good must be sought. I'd hate to think someone as narrow minded as a corporate lawyer would be accessed to the US Supreme Court.

Posted by: John Bigos at October 10, 2005 11:11 PM


Just a quick prediction:

Miers, being the noble person she is, will soon take herself out of the running to sit on the Supreme Court in order to avoid further damaging the president. Whether she is qualified or not, her nomination is, beyond all doubt, hurting the president. She is loyal to him, so withdrawing is the only sensible course of action available to her. I wish it were otherwise.

Posted by: John at October 10, 2005 11:18 PM


You only appoint a crony to the supreme court for one reason. You want someone on the court who will make partisan decisions rather than reasoned decisions. You want someone whose loyalty to you comes before upholding the constitution.

When your administration is under investigation and top men are facing jail time, and the trail could potentially lead right back to the president, it makes sense to appoint a crony.

Remember, the supreme court ruled against Clinton in the Paula Jones thing. They would be called to rule on whether any wrongdoing by the president should be prosecuted. Could this be an attempt by George W Bush to protect himself against future legal action in the event that he is implicated in Plamegate? I'm not a conspiracy theorist, but I think that's a possibility.

Posted by: Bobbydoo at October 11, 2005 06:23 AM


To paraphrase Donald Rumsfeld, you go to war with the army you got. Unfortunately the President is saddled with spineless RINOS in the Senate. The Miers nomination is less than ideal, but apparently is the best the President can muster considering the circumstances. A Republican majority in Congress doesn't necessarily translate into a conservative majority.

Posted by: Dee at October 11, 2005 07:56 AM


It seems that the Bush people spent more time selling Ms. Miers to the Dems than they did to their own supporters. Even if Ms. Miers turns out to be a decent choice, this is really a major PR blunder. I have heard nothing of any substance from the Bush people that tells ms anything notable about Ms. Miers' ability to be a Supreme Court justice. The last nominee was paraded around D.C. to demonstrating that the administration was proud or their choice. Why don't we see Ms. Miers getting the same treatment? It appears that they don't have the same confidence in her - that they were trying to take the path of least resistence.

Posted by: Craig at October 11, 2005 08:00 AM


i get to comment! i get to comment!
umm, Dafyyd and Taranto both make the anti-intellectual argument.

Bush nominates Reagan to Court
http://biglizards.net/blog/archives/2005/10/bush_nominates.html

Stepford Justice
http://www.opinionjournal.com/best/?id=110007386

Posted by: matoko at October 11, 2005 08:08 AM


I wrote this on the day after the Mier’s nomination. I still feel the same way.


DGiH (Dear God in Heaven)

I have spent the last day and a half being increasingly amazed as various Conservative Pundits hyperventilate over the Miers Nomination.

PLEASE, Please, please, sit down, take a breath, have a drink (or 8 or 10).

H. Miers nomination to SCOTUS is NOT the end of the world. It is not even a bad thing. I believe, it is, in fact, a very good thing. And here’s why.

First, a short look back. When John Roberts was nominated, there was also much hue and cry from many Pundits on the right that ‘he was no Luttig, or McConnell. No one knows how he will vote, etc”. By the end of the confirmation process, these same Pundits were talking about Roberts using terms, and tones, generally reserved for discussions of the Second Coming.

I do not believe that Miers is the ‘BEST” candidate available for the SCOTUS nomination. But that doesn’t matter. Winning matters. And she is a win. And for the following reasons.

1. George Bush KNOWS her. (I started to say, intimately, but that is a word that can probably not be used in this context.) He has worked very closely with her for YEARS. He knows her better than he knows Cheney, never mind Roberts. I would bet money that if you sat down with Bush and covered all of the cases currently scheduled, or anticipated, to come before SCOTUS this term, he could tell you how she will vote on every one. He would be right (correct), and her vote will also be right (in both senses of the term).

2. She will be confirmed easily. The Democrats spent the whole Roberts confirmation positioning
themselves for the “bloodbath to come”. They expected to gen up their base, gen up their fund-raising, and have MONTHS of controversy and conflict over this nomination, every bit of it covered sympathetically (to their side), by the MSM. That’s all gone now. Reid recommended her, for God’s sake. I watched a few snippets of Schumer on TV last night (admittedly short, anything more than about 10 seconds of him at a time makes me hurl), but I was struck by just how lost he is. He doesn’t know whether to waive or salute. And the rest of the Democrats are in the same boat.

3. She will be confirmed quickly. As I understand it, the plan is to have her confirmed by Thanksgiving. This will allow her to take part in, and vote on, a number of cases that are VERY important to the Conservative base. She will vote right, as I said above. By the 2006 elections, she will have a voting record, and Conservatives will be VERY happy with it. I am willing bet that she will vote with Thomas more often than Roberts does. Any takers?

4. Everything, and I mean EVERYTHING, we know about her indicates that she will be far more conservative than Roberts. The charge is made that we don’t know much. I think if you look at a person’s life over the last 20-odd years, you know a lot. She’s an ex-Democrat. Everybody in Texas over the age of forty is an ex-Democrat. Phil Gramm is (was??) an ex-Democrat. I’m an ex-Democrat. Means less than nothing. Souter was never a Conservative, just a Republican (they ain’t the same thing, I hasten to point-out). Sununu’s vouching for Souter was accepted due to the exigencies of the situation. This situation ain’t the same.

5. She won’t “grow” in office. She has been dealing with the Political, Social and Economic “movers and shakers” of society her whole life. She knows exactly who she is and who they aren’t. This is also a very different situation than Souter. Souter had NO such experience. (He was living with his mother when selected.) The bright lights and adulation of Washington, DC, “fried his brain” (to quote one of the better lines from Apocalypse Now).

6. The charge is made that her nomination misses an opportunity to “change the discussion”, or “engage in a debate” over American Jurisprudence in the way that a more high-profile, nominee would provide. I’m sorry, but this is inane. Rehnquist and Scalia were/are absolutely first rate minds who had no such impact. “Changing the discussion”, or “engaging in a debate” does not occur when you consistently lose 5-4 votes. Change comes when you win. Period. She will be a consistently “right” vote.

7. Many Conservative Pundits want a “bloodletting”, a “knock-down, drag-out” fight. They see it as an opportunity to finally get at the Democrats. Filibuster?? Bring on the Nuclear, or Constitutional, Option. I must admit that such a donnybrook would be great fun. However, this is not what Bush wants. Bush still has a Second-term Agenda that he wants to address. Giving the Democrats an excuse to completely shut down the Senate is not conducive to making progress on his other issues. I realize that when the Democrats began to be completely obstructionist in the Senate the Republicans could resort to the same type of tactics (Nuclear Option Lite), to move things along. The problem is, this will become the story, particularly when the MSM gives the Democrats complete support and cover.

8. Finally, I will repeat something I said when the Robert’s nomination was first announced. I believe that the Roberts nomination means that Bush expects to get THREE nominations to the court. He picked Roberts first because he really wanted him and he expected that he would be confirmed relatively easily. I said then that the next two nominations would be a Woman and an Hispanic (not necessarily in that order). I believe the Miers nomination reinforces my belief. Bush expects her to be a reliable, Conservative Vote, who can be easily and quickly confirmed, and who gives him a checkbox on the Diversity Scorecard. (Please note that I don’t think this matters to him a lot, but it does make things easier.) When the third opening materializes, the Democrats will once again go into full-throated, “baying at the moon” wackiness-mode. They will accuse Bush of planning to nominate an Hispanic Robert Bork, or at least, an Hispanic John

Posted by: DCP at October 11, 2005 08:51 AM


Not for sure what the white house is thinking but I am ambivalent to this nomination. I like the fact that she seems to support the 2nd amendment, that she tried to get the ABA to change its stance on abortion to neutral ( personally I think it is a moral issue that should be left to the individual, but 3rd trimesters should be limited ), and she seems Ok on most fronts. My only true concern is that while her resume seems to be very good I am not sure that it is good enough.

Chuck Shumer though must be licking his chops since it seems he will get an ideologue thereby validating his position that ideals should be the overriding criteria for rejecting or approving a candidate. Personally I think this is wrong too, but it is a political process now and has been ever since the Borking of Bork and Thomas.

Just wondering though, do you think the press will treat this as a sister souljah moment for Bush if he continues to stand up to the conservative part of his conservative base ( yea right ).

Posted by: Wayne at October 11, 2005 09:14 AM


The only people that Bush owes anything to is "We, the People".
Special interests, politicians, supporters, Roe-v-Wade watchers, analysts, media, bloggers, opponents.

"We, the PEOPLE." NOT "We, the Pundits."
I wonder if the senators and representatives have any idea of the wishes and desires of their constituents.

Posted by: Joe Citizen at October 11, 2005 09:32 AM


No, no, and a thousand times 'no'. This is not a brilliant poker move on the part of Andy Card. Indeed, he might think it is. Thinking it doesn't make it so, no matter how much Dick Cheney wishes he could whisper "don't screw this up." The goal is not (should not be) to put a reliable vote on the court. The goal is to put a time-proven, philosophically-tested, well-veted and intellectually powerful jurist on the court. Only with this will the full effects of a conservative court be actualized. Justices have as much influence in a dissent as otherwise. With powerful dissents, a jurist can author prose which can be used not only to formulate the bases for future decisions, but also to train young and still impressionable lawyers. Proof? Scalia. As I wrote to a friend a couple of days ago, with Ms. Miers, we do not have any of the above qualifications, as best as I know. Having authored papers in formally refereed journals (albeit mine not related to law), I know it to be one of the hardest, most grueling, most painstaking and difficult things ever to tackle. At once it involves both learning and telling others what one knows. Finally, this kind of publishing involves a divulging of what the author believes about the subject, not just a scholarly rehearsement of the facts. In other words, opinions must be part of the process. Only going through publishing in a refereed journal can inform someone as to the value of such an experience. It is hard to describe its value to someone who has not done it. And this, in the superlative degree for a respected book.

Now. Ms. Miers has not done any of this. Additionally, Ms. Miers has not proven herself on the bench, and as best as I know, being a capable jurist is not served by a lack of experience doing the very thing she would be doing on the highest court in the land. Also as best as I know, representing clients in court does not qualify one to sit and author scholarly opinions. And just to kill the defeater argument that I am relying on punditry and press to decide on the qualifications of a jurist, I did read some of Roberts’ rulings prior to making my mind up on him.

No, the issue is not about being a bigot, or an anti-feminist, or arrogant regarding Ivy League schools. I could not care less where she matriculated, or (gasp!) if she matriculated. The point is not Ivy League versus some other institution. My brother went to Emory Law School, and as best as I know, he received a fine education. The issue boils down to this: is she the BEST pick for the job. Period. Not 'is this person a woman', or 'is this person more or less likely to be confirmed', or 'is this an affirmative action pick', or 'what does Bush purportedly know about her'? I really do not care about any of those things (most of all, what Bush knows about her). I do not know the things about her that I want to know, and that makes the difference. And, I am not likely to find out what I want to know in the humorous and wasteful confirmation hearings. Nothing will be learned in the hearings that would replace what could be learned from publications and rulings.

Bush failed his constituency. End of story. We will have to wait possibly many more decades to construct a truly conservative court (along with the PROVEN intellectual power to keep it that way). And we may never have this kind of opportunity again. We have blundered this critical point in history. Correction: Bush has blundered this critical point in history. It is our blunder for believing that Bush would do what we asked him to do.

Herschel Smith

Posted by: Herschel Smith at October 11, 2005 09:37 AM


The Miers nomination fails to pass the "Hugo Chavez" test. That is, if Hugo Chavez did what George Bush has done, nominate his personal attorney to the highest court in the land, we would look at that decision as further confirmation that Chavez is running a second-rate banana republic. The derision would flow. That's one of my primary objections to this nomination - it's an embarassment to the country.

As the president's personal attorney, Miers is not disqualified from the Supreme Court, she just has a higher burden of proof to demonstrate her qualifications for the position. She doesn't pass.

Posted by: Brad Lambert at October 11, 2005 09:41 AM


I think the movement conservatives that are always saying, lib's think they're the smartest guys in the room (ie Rush L.), have made fools of themselves over the last week, acting like Lib's (thinking they're smartest guys on the right). I don't think the talking heads on the right know how to count heads. I trust GWB more than the RINO's in the Senate. Elections mean something! When George Will is President, he can pick judges. God Bless GWB.

Posted by: Tom Churchill at October 11, 2005 09:41 AM


Personally... i do not think the super qualified, erudite, cerebral egg heads... have a monopoly of right thinking. My guess is that she would be a good choice, as I trust George Bush is not such a fool as many like to believe.

Posted by: willy at October 11, 2005 10:07 AM


From thehill.com

http://www.thehill.com/thehill/export/TheHill/News/Frontpage/100605/gang.html

"The Gang of 14’s centrist Democratic and Republican senators met and gave preliminary approval yesterday to Harriet Miers as President Bush’s nominee to replace Justice Sandra Day O’Connor on the Supreme Court.

Emerging from a meeting at the offices of Sen. Ben Nelson (D-Neb.), Sen. Susan Collins (R-Maine) said, “This nomination didn’t set off any alarm bells with any of us.”

The significance of this provisional endorsement, though presented in a low-key fashion, could be huge, for it means that unless damning evidence emerges during the Judiciary Committee’s as-yet unscheduled confirmation hearings the nominee is unlikely to be filibustered, and a party-line vote would mean confirmation. A party-line vote is far from assured because conservatives have not welcomed the nomination.

The Gang’s raison d’être is to prevent both politically motivated filibusters and the “nuclear option,” a rule change to cut off debate. The Gang thus seems to be lining up to force colleagues to accept an up-or-down vote on Miers’s confirmation.


Posted by: deci at October 11, 2005 10:26 AM


To those who think the President has done just fine with this nomination, a question: Do you believe the President has fulfilled his promise to nominate judges in the mold of Scalia and Thomas?

One of the chief objections to Miers - at least from me - is that, if the President is being honest in saying that she shares his Constitutional mind, she is far from a Scalia or Thomas. Can any of you actually dispute that, or does the "trust me" cover the multitude of sins (McCain/Feingold, Michigan affirmative action, and so on)?

Posted by: Jimmie at October 11, 2005 10:39 AM


We are floating on a Tide of Opinion, NOT a good time to be arriving, as many above are, at hard positions. The best use of our time, until we come to the more formal part of this process, would be in raising questions and insights.

Why the unusual force of this tide? It appears that most of the big-name Washington Republicans have rationalized they had an understanding that they'd go along with Bush on some of his more iffy measures in return for confidence in the strength of his SC appointments.

There is clearly a sense of betrayal among this segment. The Bill Buckley/National Review party last week provided a grand opportunity for this to fester. Now, having escalated the stakes so high, there is an emerging insecurity that they'd damn well better succeed in quashing the nomination or appear not only somewhat traitorous but somewhat impotent.

While I have no better take on Ms Miers than anyone else in this thread, I would point out that the sharp person focuses on the quality of the candidate. The wise person focuses on the quality of the resulting team. Prior to the Miers appointment, I was apprehensive about sending up another scholar in the Roberts/Scalia/Thomas mold--too much ego clash potential. It's early, but I see hope in Ms Miers based on what she could contribute to the effectiveness of the Court, and I think Justice Scalia's recent comments reinforce this point of view.

I am a libertarian Repub, not a religious one. But I have no problem with President Bush making an appointment to bolster a segment of the party that has been stalwart on his behalf. However, if some on the right don't climb down from Mount Ego pretty soon, we will have a hard time discovering whether there is wisdom in this appointment or not.

If she looks like a weak conservative or a weak legal mind, vote her down in the Senate. Contrary to what some predict about that validating Democratic politicization of the process or being harmful to the president, it merely shows that we are the party that owns the spoon that stirs the pot.

Posted by: Charlie at October 11, 2005 10:41 AM


Don't forget the outcome of another Bush court appointment of a former Democrat. That was of Henry Floyd, a former Democratic politician who said he switched to the GOP and had a supposedly conservative track record on the bench.

But he was the Federal District Court judge of South Carolina who first ruled that the War on Terror could not be fought without criminal charges and convictions against Al Qaeda soldiers like Jose Padilla who were also US citizens picked up on US soil. Floyd found Congress didn't give Bush enough power to militarily detain Padilla, despite its use of the word "all" in letting Bush use all necessary and appropriate force needed to stop perpetrators of 9/11 and their supporters from pulling off more attacks on the US like 9/11. And despite the US Supreme Court in Hamdi v. Rumsfeld already having ruled that "all" in that authorization did include the military's power to detain such Al Qaeda enemies for the war's duration, not just kill them.

Fortunately, the US Fourth Circuit Court of Appeals overruled Floyd and restored the War on Terror to the military, not just the lawyers.

Posted by: RufusLeeKing at October 11, 2005 11:05 AM


Are there candidates with more judicial experience? Yup.

Are there candidates with a solid constitutional scholar background? Yup.

Are there candidates that would make the conservative base absolutely sure of how they would vote? Yup.

Would I pick her? Probably Not.

But I'm not the President.

http://skymusings.blogspot.com/2005/10/miers-continued.html

There is something larger in the air than this one nomination, which we may or may not know about anytime soon. Am I happy about it? Not at all. For whatever reasons, the President has calculated that the best course at this time is to put a milqetoast that he trusts up for nomination, knowing that there's nothing for the Dems to latch onto to shoot her down with. It is up to each constituent to determine if we are willing to follow his trust, and this will vary for each person. In the meantime, we theoretically get another relatively conservative originalist vote on the Court, and while giant strides are preferred, sometimes all we can take is baby steps.

Posted by: skymuse at October 11, 2005 11:06 AM


The Constitution was not written by a gaggle of egg-headed Ivy League scholarly lawyers so why should it be "interpreted" by the same? I want a farmer on the Supreme Court with no law degree. The Constitution does not require a law degree to read and understand it--quite the contrary--it is these same egg-headed lawyers that bastardize the plain simple language of the Constitution and twist it to mean anything they want. Also, people like Ann Coulter contradict themselves. First, Coulter argues that you must be a hyper-scholarly lawyer to be on the Supreme Court, then she rails against those same people providing us with horrible case law like Roe v. Wade and Campaign Finance Reform. A common sense person with no law degree would never vote for such non-sense. It takes a bubble-headed lawyer to creatively fashion the Constitution into anything they like. I know that Meirs is a lawyer but at least she's not a egg-headed Ivy League one.

Posted by: Patrick Martin at October 11, 2005 11:16 AM


Of all the many things I have read of Harriet Miers, one of the most disappointing--to me--things is the fact that she goes to work at 4:30 am and works until 10:00 pm at night!! It begs the question as to is she not smart enough or capable enough to finish her work sooner. Mary W

Posted by: mary w at October 11, 2005 11:29 AM


My opposition to Miers nomination (besides her "underwhelming" resume) is not the desire for fight, but my desire for conservative acceptance.

Even if Miers always "votes right" and becomes Scalia-ish (no small ifs) the biggest problem with the Miers pick is that it signals that, when it comes to SCOTUS picks, the only way to get solid Conservatives on the Court is if they never-ever voice those views until after taking their seat on the court.

I've written more extensive posts on this here and here.

But the short version is: We need to push "mainstream" legal thought to the right. So a Republican nominating an openly Conservative nominee is as accepted as a Democrat (Clinton) nominating an openly liberal nominee (Ginsberg).

If having conservatives on the court means sacrificing experience and intellectual "heft" then any textualist/originalist/etc. majority court will always be tenuous at best.

Posted by: PatrickS at October 11, 2005 11:43 AM


I'd like to consider the possibility that President Bush really does think that she's the best-qualified for what he envisions as her role on the court. Not Chief Justice, not Writer of Eloquent Dissents, not Just Another Associate Justice -- what, then? Well, she's a manager of lawyers. Powerline said at
http://powerlineblog.com/archives/011897.php
that her admiration "for Warren Burger's work in judicial administration is almost completely irrelevant to her prospective service", but what if it's not irrelevant? It seems possible to me that Bush is attempting to build a team around Scalia, Thomas, and especially Roberts -- and that if Miers is confirmed, then ten years hence we'll see that Roberts is giving her a great deal of his judicial administration work, and quite possibly changing the way judicial administration works.

(Is this ridiculous? Well, that's why my blog is called "MistakesByTJM".)

Posted by: Tom Myers at October 11, 2005 11:43 AM


When your main selling point is that "she was head of the Texas State Bar Association" (or "she was secretary of her high school yearbook committee!" or whatever) and you're stuck playing the liberal-style gender-victim card, i.e. "people who would have preferred someone else (like Janice Rogers-Brown) are sexist", you're really in a bad spot.

Maybe we'll get lucky and they'll find out she once had an illegal alien gardener or something.

Posted by: The Editors, American Federalist Journal at October 11, 2005 11:47 AM


A Republican senator once said of Carswell, when he was nominated to the Supreme Court, that, sure, he was mediocre - but the mediocre derserve representation on the Court. Now, I guess, the lickspittles have a representative as well.

Can you say "Yes sir. Tes sir. Yes sir"? Miers can! And that is what Bush wants. A Bush-driven, rubber stamp, Justice. What a tragedy. How far we have fallen. The President cannot think for himself, so why should hin nominee? At least he didn't nominate Rove!

Posted by: Fred at October 11, 2005 12:25 PM


The notion that Miers isn't qualified to do this job seems to stem from the "philosopher-king" view of the Court mocked brilliantly by Ann Coulter (who, ironically, is bitterly opposed to the nomination.) Liberals see the Court as our all-knowing, all-seeing group of nine benevolent dictators. Following from this, only the most brilliant legal minds are up to the task. The truth is, any smart lawyer (which Miers assuredly is) can get his or her mind around these issues. It is more than a little disconcerting to see conservatives and libertarians adopt this erroneous view of the role of the Court.

Posted by: John Salmon at October 11, 2005 12:34 PM


Whatever you think of the merits per se of Harriet Miers as a candidate, it's good to see that individual conservatives have the integrity to speak out if they happen to believe that she's a bad pick.

Does anyone remember back a couple of decades ago when Governor Jerry Brown elevated Rose Bird, *profoundly* underqualified but an old college friend, to Chief Justice of the California Supreme Court? (http://en.wikipedia.org/wiki/Rose_Bird) She was a disaster both for the Brown Administration and for respect for the Court in California, but I don't recall hearing a word of criticism from the Left when she was chosen.

Posted by: Mike G in Corvallis at October 11, 2005 12:46 PM


How is it, by the way, that the same non-lawyers who think they know exactly how a Ginsburg or Souter (people supposdly far better versed on the subtlties of Con Law than laymen) erred in a given opinion, don't think Miers can figure this stuff out? If only a select few of "the best and brightest" (a couple hundred people, from the comments of some conservative opinion leaders) are smart enough to do this, how come any dummy can tell you what's wrong with Roe v. Wade?

Posted by: John Salmon at October 11, 2005 01:24 PM


Many if not most of the anti-Miers posts cite as reason one that she is "not the best qualified candidate" for the job.

Which begs an important question. What are the qualifications for this job? I've seen a pitiable lack of consensus about this--some say Constitutional geekdom, some say intelligence, or constructionist bent, or integrity, or conservatism, or the ability to resist the charms of the East Coast liberatti, etc.

But none of these are qualifications to serve on the Supreme Court. You merely have to be chosen by the President and confirmed by the Senate.

Now why do you suppose those harebrained Founding Fathers neglected to add a clause to the Constitution requiring that a candidate must also get the blessing of whatever collection of smarty-pants yakkers is currently getting the most media face-time? What a missed opportunity that was.

Posted by: Barnstable at October 11, 2005 01:28 PM


I am a working transaction lawyer. Recently, I have not had time to pay attention to my blog or to write due to work and family pressures.

I have not read your comments to date, so at the risk of repetition, here are three points:

1. Miers is not necessarily unqualified coming from the background as a working lawyer. I have met many working lawyers who are knowledgeable of the law, extremely analytical and possess sound judgment. I have met others who are not. The same can be said for people who have spent their careers as judges or law professors. Most judges that I have dealt with involving business law matters are idiots.

2. A law degree from a snobby law school is also not a prerequisite and in my view, such a degree is a strike against a candidate. Miers' degree from SMU is a plus for me.

3. The only aspect of Miers' background that I don't like is that she has not raised children. I consider the education that I received by raising a boy in an intact family to be a vital, revealing and humanizing element in my background. So many hot button issues that will come before the Supreme Court are related to how families will be shaped by law and policy. I am concerned that a hermit like Souter will shape those decisions. I would like to see whether or not Miers has some understanding of the pressures of governmental and societal influences on deteriorating family life in this country. That she is a solid Christian is a plus. Most solid Christian churches revolve around family life.

Posted by: Breaker at October 11, 2005 01:28 PM


GWB said he'd be a "uniter not a divider". He united the GOP behind John Roberts and the Dems behind Harriet Miers.

Pretty cool.

Posted by: Beth McNeely at October 11, 2005 02:14 PM


Also, isn’t it interesting how every conservative pundit claims that it takes a real intellectual genius to really understand and interpret Constitutional Law, yet each of them seems to have no doubt exactly how every case should be decided and exactly what constitutes a “reliably conservative vote?” Which is it? Is conservative constitutional jurisprudence some kind of secret mojo handed down from Justice Holmes that can only be understood in a secret language spoken only by likes of Robert Bork and Richard Epstein or is it a pretty straightforward philosophy grasped by bright lawyers and non-lawyers alike? As a lawyer, I think that it is probably more the latter. These are hard issues to decide but not difficult to understand. It’s not as if liberal jurists are crazy. These are subtle issues open to lots of reasonable interpretation. The difference is not necessarily how brilliant you are. It is not like there is one correct answer available to only the brightest. The difference is what your values and priorities are. You don’t have to be a genius to write a good Supreme Court opinion and indeed, many a genius can and do write poor ones.

What do conservatives really want from a justice? The answer, I think if they would be honest with themselves is that they want the same thing liberals want, a justice who will vote their way. The rest of the qualifications are just nonsense “our guy is better than your guy” vanity. Look, no one ever thought of Clarence Thomas as being an intellectual heavyweight until he got on the Court and started voting the way they liked and then he became the model justice for the 21st Century. Anthony Kennedy in contrast was a much respected intellectual until he got on the court and proceeded to go off the reservation and now is the poster child for what not to appoint.

Posted by: John at October 11, 2005 03:46 PM


John Fund thinks that Richard Land's argument that Harriet Miers will rule the way the President wants, because to do otherwise would be an "act of betrayal," sounds like a blood oath. I think it makes Miers sounds like a Stepford Justice. WHO is reassured by this kind of reassurance? Sheesh.

Posted by: JEK at October 11, 2005 05:03 PM


I think a little historical perspective is in order. Consider the Supreme Court appointments of the past 50 years by Republican Presidents which, in the eyes of conservatives at least, can be characterized as "bad":

Eisenhower -- Earl Warren
Eisenhower -- William Brennan
Nixon -- Harry Blackmun
Ford -- John Paul Stevens
GHW Bush -- David Souter

What is the common factor in all these choices? The nominating President in each case was almost totally unfamiliar with the nominee. GW Bush, on the other hand, has worked with Harriet Miers for 10 years or so, and probably has known her for a good deal longer than that. It is inconceivable to me that Miers will end up in the above list.

Bill Kristol and Rush Limbaugh (and many others) may not know much about Miers, but GW Bush certainly does, and unless one thinks that Bush is deliberately undercutting his base, or that Bush is a total idiot, there is simply no possibility that Miers will become the sort of disappointment that Warren et al. were to conservatives.

I'm pretty confident that Bush and his advisers fully expected the nominee to be filibustered, and they are astute enough to know that one or two Republican defections would kill the nomination, thus they picked someone who would not raise a red flag to the Specters in the Senate. Remember that Specter essentially ordered Bush to nominate a woman, the implied threat being that if Bush did not comply, then Specter would sit on his hands while the Democrats demonized away. So Specter and his friends are happy, at least in public, while the carping is coming from people who are not going to vote on the nomination.

While I'm at it, let me make a humble suggestion for those who will once more bring up the issue of term limits. Absolute term limits will never become popular in America, simply because they carry a whiff of anti-democratic extremism. There is, however, another way which I think most people would consider reasonable: a constitutional amendment requiring the reconfirmation by the Senate of any justice who has served a certain length of time on the court, something like every 10-12 years. In fact, this makes so much good sense that I'm sure it will never come to pass.

Posted by: Bill Daly at October 11, 2005 05:11 PM


Yes, I'm a liberal who is as baffled as any conservative about what kind of Supreme Court justice Miers will make.

I do not blame conservatives for being upset about this stealth candidate, nominated with a nudge, a nod and a wink. It is not "clever" to govern in this manipulative way. It is elitist and smacks of an attempt to get around the will of the people. It goes against the transparency of government that is supposed to characterize our government.

If conservatives truly believe that they speak for the majority of Americans, and the 2004 election indicates that they might be right, they want a President who proudly represents their beliefs in his nomination of a justice, and who fights for it. I think they are wrong, but I would respect his having the courage of his convictions and willingness to expend the energy to fight for his choice.

I thought Bush was famous for being straightforward and honest. This nomination is anything but.

Posted by: cowalker at October 11, 2005 05:19 PM


This whole Miers nomination seems to boil down to the idea that Bush is a conservative, Bush telling us to trust Miers, because she is a conservative, and Miers supporters on the right telling us to trust Bush, because he is a conservative. Why don't we start with the first proposition in that line of reasoning. What in the world makes anyone think that Bush is a conservative. Sure, it is partially a question of definition. If your definition of conservative is that one merely holds socially conservative views, then Bush is a conservative. If your definition of conservative is to project American military power abroad, then Bush is a conservative. On any other measure I fail to see how Bush is a conservative. His predilection for massive federal spending, greatly expanded Medicare benefits, and increased federal involvement in education to name just a few examples show little dedication to limited government, federalism, or strict reading of the Constitution. His support for the free market seems lukewarm at best, as his support of steel tariffs, for example, indicates. If Bush claims that Miers is reliable then I can only take it to mean that she is pro-life, anti-Gay marriage, and supports school prayer but will be reliably against limited government, federalism, strict interpretation of the Constitution and reliably only moderately receptive to the free market. Why exactly would Conservatives support this nomination?

Another absurd justification that I hear for Mier's nomination is that she is an evangelical Christian who takes the Bible literally and by implication will interpret the Constitution literally. Sorry, if that one fails to impress me either. It is hardly a certainty that the one implies the other. Belief that a religious document unerringly reflects divine inspiration and believing that a group of men with a philosophy of limited government really meant what they wrote are two different things.

Posted by: Mark at October 11, 2005 06:05 PM


Watching the right wing turning itself inside out over the Miers nomination is like watching an episode of American Idol gone horribly awry. It's the perfect car wreck; just messy and improbable enough to be supremely entertaining. I mean, if Miers isn't the perfect Bush tool, I don't know who is. Qualifications... schmalifications. The qualification issue has long since been rendered obsolete by this administration. Is Bush really "qualified" to be the commander-in-chief of our armed forces? Was Michael Brown "qualified" to run FEMA? Miers is qualified to do exactly what will be asked of her, which is to be a good soldier and do what she's told. Isn't that what she's been doing all along? And yet here you all are trying to ruin it for yourselves. I'd blame it on an unscheduled attack of honor or principle, but it doesn't appear that too many of you are hiding behind that particular mask.

Of course, this whole thing could be some kind of plot to confuse the Democrats, which wouldn't be all that difficult a task. They seem to be a bit flummoxed thus far in terms of how they should respond, both publicly and in the actual confirmation vote. You've surely caught them all off guard with this one.

Posted by: Andy Samet at October 11, 2005 06:35 PM