Monday, October 03, 2005

Harriet Miers: The wrong choice for the Supreme Court

(See here for why I supported Roberts. See here for a list of all my posts on Roberts, Gonzales, and the other candidates.)

Last week, John Roberts was confirmed 78-22 by the Senate to be the 17th chief justice of the United States. That wasn't much of a surprise, whatever the justifiable reservations of his critics. With his confirmation, attention turned to nominee #2, Bush's pick to replace Sandra Day O'Connor. And that pick, announced on Roberts's first day on the job, is:

Gonzales? Luttig? McConnell? Clement? Jones? Brown? Owen? Garza? Thompson? Alito? Wilkinson? Batchelder? Sykes? Callahan? Olson? Corrigan? Estrada? Cornyn? Martinez? Williams? Posner? Hatch? Glendon? Kyl?

Uh, no. Conservatives all, these at least would have been nominees with suitable qualifications for a seat on the Supreme Court.

Federal judges, politicians, legal scholars, Justice Department officials. Makes sense to look in those areas, no?

No. Bush picked another Cheney -- the very person heading up the search to find O'Connor's replacement:

Harriet Miers.

Currently White House counsel, Ms. Miers has never been a judge and has never argued a case before the Supreme Court. She ran a big law firm, was the president of the Dallas Bar Association, a Dallas councilwoman, chairwoman of the Texas Lottery Commission, and, then, in Bush's White House, assistant to the president and staff secretary, assistant to the president and deputy chief of staff, and now, yes, counsel to the president. A distinguished career, to be sure, but one worthy of a spot on the Supreme Court? I think not.

How do you spell cronyism? I thought it was B-R-O-W-N, but apparently it's M-I-E-R-S. Yes, Ms. Miers is yet another Bush lackey. A suck-up. Bush calls her "a pit bull in size 6 shoes" (see here). Miers calls Bush "the most brilliant man she had ever met" (see here). Bush may be right. Miers may be insane.

Wonkette has a lot on Miers, including her resume, here.

Needless to say, the blogosphere went nuts this morning. Memeorandum was swamped with updated posts from across the spectrum.

In particular, conservatives aren't at all happy. Hugh Hewitt says Miers is "a solid, B+ pick," but Professor Bainbridge replies that the Supreme Court is "no place for B+ picks".

At The Wall Street Journal's op-ed page, Randy Barnett suitably quotes Hamilton, from Federalist 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... 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.

Which means:

To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. Nothing in Harriet Miers's professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people. It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement...

Given her lack of experience, does anyone doubt that Ms. Miers's only qualification to be a Supreme Court justice is her close connection to the president? Would the president have ever picked her if she had not been his lawyer, his close confidante, and his adviser?

Of course not. Which is one reason why Bill Kristol, over at The Weekly Standard, is "disappointed, depressed, and demoralized," why Michelle Malkin is "utterly underwhelmed," and why Glenn Reynolds at Instapundit is similarly "underwhelmed".

At Power Line, Paul Mirengoff thinks it's cronyism and John Hinderaker is disappointed. More: "This nominee is a two-fer -- she would not have been selected but for her gender, and she would not have been selected but for her status as a Bush crony. So instead of a 50-year old conservative experienced jurist we get a 60-year old with no judicial experience who may or may not be conservative."

Blogs for Bush isn't "very excited" and is in fact quite disappointed, too.

RedState (among others) points out that Miers gave money to Bentsen in '87 and Gore in '88.

The Volokh Conspiracy calls Miers's nomination "a squandered opportunity": "[L]ooking at Miers [sic] resume, I can see nothing in her career or her resume to suggest that she has ever thought in any meaningful manner about larger questions of law or judicial philosophy."

Southern Appeal puts it more bluntly: "I am done with President Bush: Harriet Miers? Are you freakin' kidding me?! Can someone -- anyone -- make the case for Justice Miers on the merits? Seriously, this is the best the president could do? And what really sticks in my craw is the president's unwillingness to have a national debate about the proper method of interpreting the Constitution. I suppose I should have seen this coming when White House staffers freaked out over Chief Justice Roberts's ties to the Federalist Society. Thanks for nothing, Mr. President. You had better pray that Justice Miers is a staunch judicial conservative, because if she turns out to be another O'Connor then the Republican Party is in for a world of hurt. Un-freakin'-believable."

Professor Bainbridge, once more, is "appalled". (Check out this post for a scathing run-down of Miers's deficiencies.)

Nope, conservatives aren't happy one bit. (Although, Confirm Them notes that a few conservatives are "comfortable with the president’s selection of Miers".)


Which makes this all the more fun for us liberals and moderates who have been waiting for the conservative movement to implode.

I'm certainly to the right of Daily Kos, but Kos himself is right on the mark here: "[T]his is the sort of pick that can have real-world repercussions in 2006, with a demoralized Republican Right refusing to do the heavy lifting needed to stem big losses. That Bush went this route rather than throwing his base the red meat they craved is nothing less than a sign of weakness. For whatever reason, Rove and Co. decided they weren't in position to wage a filibuster fight with Democrats on a Supreme Court justice and instead sold out their base. We'll have several months to pick through Miers' record, as well as highlight her role in any number of Bush scandals... But my early sense is that this is already a victory -- both politically and judicially -- for Democrats. In fact, it should be great fun watching conservatives go after Bush. He may actually break that 39-40 floor in the polls, given he's just pissed off the very people who have propped up his failed presidency."

Sit back and enjoy? Indeed.

Kevin Drum at Political Animal has a nice round-up of more conservative reaction -- including David Frum, Pat Buchanan, John Podhoretz, and Jonah Goldberg.

Other liberal/moderate voices:

Steve Clemons at The Washington Note doesn't "see the stomach among Dems yet for a fight".

Obsidian Wings: "This is a nomination that shows us, once again, how little Bush cares about little things like a person's qualifications to hold a job, and his lack of respect for the Supreme Court. That should not please anyone, and apparently it hasn't."

Bruce Reed at The Has-Been calls the Supreme Court Bush's "dumping ground for hacks".

Ezra Klein says "[t]he Right is ready to jump off a cliff". At TAPPED: "This may be the end of the Bush coalition, and, in that, the end of the Bush administration. The only question is why they did it."

Josh Marshall at Talking Points Memo: "The key that this nomination should and, I suspect, will turn on is that the she fits the Bush administration mold -- she's a loyalist through and through. The lack of any other clear qualifications for the job becomes clear in that context."

Greg's Opinion: "I've got to wonder if the Rove/Bush machine have truly lost their last remaining connection to the political radar that has, up till Katrina, served them fairly well."

Majikthise calls it "an odd pick". Yes, to say the least.

Steve Soto at The Left Coaster: "Miers is being nominated for one major reason: Bush wants her and Roberts there to protect this administration in the legal battles to come. But until she is confirmed, the seat is vacant. She can be opposed simply because she isn’t qualified. At a time when matters of great importance to this nation will be coming to the court, Democrats have a right to demand as much information from Miers as possible, and if they cannot get such information, she should be opposed, even filibustered."

See also The Heretik, The Glittering Eye, David Corn, The Mahablog, and Dean's World.

And, of course, The Moderate Voice.

Finally, here's Andrew Sullivan: "Think of her as a very capable indentured servant of the Bush family. She'll do what they want." And: "The only reason I can think of for Bush to rattle his base in this fashion is the same reason Clinton decided to push his luck with a blow-job in the Oval Office: "Because I could." He picked Miers because he could. If he wasn't allowed to get his favorite crony, Gonzales, he was going to go one better. This is not to say we shouldn't give the Miers nomination a thorough and fair look... I'm not sure yet whether she'd make a decent Justice. But, boy, does this pick remind us of who GWB is: about as arrogant a person as anyone who has ever held his office. Now the base knows how the rest of us have felt for close to five years. He had one accountability moment. He doesn't expect another."


So where do things stand? Here's the Times:

There is still much to learn about Harriet E. Miers, but in naming her to the Supreme Court, President Bush revealed something about himself: that he has no appetite, at a time when he and his party are besieged by problems, for an all-out ideological fight.

Many of his most passionate supporters on the right had hoped and expected that he would make an unambiguously conservative choice to fulfill their goal of clearly altering the court's balance, even at the cost of a bitter confirmation battle. By instead settling on a loyalist with no experience as a judge and little substantive record on abortion, affirmative action, religion and other socially divisive issues, Mr. Bush shied away from a direct confrontation with liberals and in effect asked his base on the right to trust him on this one.

The question is why.

On one level, his reasons for trying to sidestep a partisan showdown are obvious, and come down to his reluctance to invest his diminished supply of political capital in a battle over the court.

The White House is still struggling to recover from its faltering response to Hurricane Katrina. The Republican Party is busily trying to wave away a scent of second-term scandal. The relentlessly bloody insurgency in Iraq continues to weigh heavily on his presidency. And no president can retain his political authority for long if he loses his claim to the center...

Looked at another way, the choice is much harder to explain. In selecting Ms. Miers, Mr. Bush stepped deeper into a political thicket that had already scratched up his well-tended image of competence, the criticism that he is prone to stocking the government with cronies rather than people selected solely for their qualifications.

Perhaps even more seriously for him and his party, he left many conservatives feeling angry and deflated, if not betrayed, greatly exacerbating a problem that has been growing more acute for weeks because of the right's concern about unchecked government spending following Hurricane Katrina. For an administration that has at every turn tried to avoid the mistakes of Mr. Bush's father, especially the first President Bush's alienation of his right wing and the subsequent lack of enthusiasm for his re-election effort in 1992, the fallout on Monday was especially glaring.

A few months and a political epoch ago, Mr. Bush was willing to go to the mat for a controversial conservative nominee, pressing the Senate repeatedly to confirm John R. Bolton as ambassador to the United Nations and then giving Mr. Bolton a recess appointment when Democrats blocked him. On Monday, weakened and struggling to avoid premature lame duck status, the administration had to defend itself against suggestions from the right that it has not lost just its way but its nerve.

We shall see.


Am I enjoying this? Yes. Is it good for America? No.

However much I may like watching the right wing come apart at the seams, America needs a Supreme Court that rises above mere competence and aspires to excellence. That, after all, is what the Framers of the Constitution envisioned. Cronyism aside, America can do better than Harriet Miers. She may be a smart, loyal, pleasant woman with a reputable career behind her, but she's no Supreme Court justice.

My vote: No.

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  • I just plugged "Harriet Miers" into Westlaw as a search term for all federal decisions. The result: She has been named in exactly six federal decisions. In one of these as Chair of the Texas Lottery Commission, in another as a member of the Dallas City Council, and only in four as a lawyer on the case. (One of these was a discovery motion in bankruptcy court which she lost in its entirety.) This is not even a mediocre track record for a lawyer who is involved in federal litigation. Remember, not every decision that is reported in westlaw is reported in the federal reporters. None of these were appellate decisions.

    By contrast, I plugged in "David Boies." He is named as lead counsel in 185 federal decisions reported in Westlaw.

    By Anonymous Anonymous, at 10:34 AM  

  • Anonymous, I quoted you in a recent post. Thanks. Your research is much appreciated.

    Steve, I tend to agree with you. The bar has certainly been lowered. The cronyism bothers me, but not as much as the clear lack of qualifications.

    By Blogger Michael J.W. Stickings, at 5:36 PM  

  • This is my first time posting here, but I tend to agree with all of you on how the right is beginning to split. I've noticed it ever since Katrina. Many on the hill are calling for REFORM with spending, get rid of the NO BID CONTRACTS, and now, many on both sides are agreeing and I love it.Liberal's definition are those exact words:Not limited to or by established, traditional, orthodox, or authoritarian attitudes, views, or dogmas; free from bigotry.
    Favoring proposals for reform, open to new ideas for progress, and tolerant of the ideas and behavior of others; broad-minded.
    Of, relating to, or characteristic of liberalism.
    I feel if many more logical republicans move to the center, they're right with the rest of the moderates and that is where you want congress to be. While there are several who still choose to stick to the party lines {and even had the same spin doctor writing their comments on the news programs} I feel the break after this nomination is going to cause a revolt and I'm happy about it because I've felt many believe the christian coalition, the blackmail, arm twisting and of course cronyism is crippling democracy. Miers however isn't a safe bet for liberals and moderates by any shape but i also feel she isn't going to legislate from the bench.LOL I think Bush knows he can only trust the females in his circle to promote because the axe is grinding from his male friends. I also believe hes getting wise to what has been going on inside cheney's head along with rove's. Bush was used yet his ego was driving him all the way to the white house. Now that America sees his IQ isn't reaching that high with his explanations for Fema, Iraq, and now the CIA Probe after telling the press he would FIRE whoever leaked Plame's name {IMO He has been clueless till now} and is trying to distance himself from one group and embracing another in his own party, I also agree that Bush might be fearing impending doom with his administration and with her on the court, she can protect him no matter what and doesn't have to hand over confidential information. IMO I do believe Roe V Wade is dead....Explain this one to me, how can Wecht from texas with Rove's and CHeney's premission announce on MSNBC and Fox that Miers is a pro lifer yet in the same exact day, she tells Leahy nobody influences her opinion or speaks for her? Its like two camps are running the white house and when is Bush going to figure it out Cheney is President not him and the far right is darn well going to remind him.LOL


    By Anonymous Anonymous, at 7:56 AM  

  • Good to have you here, Anonymous #2, and I hope you keep coming back and posting comments.

    I'm not sure what to make of all these remarks out there. Bush may very well have nominated her because he knows her and because she'll defend executive privilege down the road, but she's now being sold as a devout evangelical. This will cause problems, I think, because it'll be much easier for Democrats to rally against a right-wing political agenda than against cronyism and a lack of qualifications.

    It'll be interesting to see where this goes from here.

    By Blogger Michael J.W. Stickings, at 5:00 PM  

  • Puritan pundits pull out their pliers,
    Pinching the Prez over Harriet Miers,
    Stunned that they've received no surety
    Of her ideological purity.
    Liberals of suspicious mind
    Naturally, though, expect to find
    Anyone Mr. Bush delivers
    "Pure" enough to give them shivers.

    And neither are greatly mollified
    By finding her so unqualified.
    Will any old lawyer suit that Court
    Who knows how to serve a half-baked tort?

    But the greatest objection to letting a crony in
    Is that it's so patently un-Hamiltonian.
    Will the whole Senate exclaim with defiance, "We
    Shun insignificance! Veto pliancy!"
    Or will Mr. Bush get to keep his treasure,
    "Obsequious instrument of his pleasure?"

    Poor Mr. Hamilton can't be blamed;
    Who'd think of a leader who can't be shamed?

    By Blogger nightquill, at 4:25 AM  

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