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

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.

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.

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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.

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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.

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

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.

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.

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.

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.

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

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.

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.

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).

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

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.

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

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.

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.

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.

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?

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

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line: The nomination is a disgrace and if this conservative insurgency continues to metastasize the nomination with be withdrawn.

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.

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

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.

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.

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.

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?

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

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.

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.

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."

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.

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.

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?

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.

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."

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.

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

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

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.

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.

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.

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!

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.

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.

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.)

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.

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.

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....

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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!

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

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.

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.

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.

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?

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.

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.

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.

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?

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.

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).

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.

"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.

Dean,

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

McCain-Feingold.

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---

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....

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.

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.

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".

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.

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.

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.

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.

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

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.

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.

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.

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?

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.

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.

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.

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.

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 R