Souter, or Kerik?
The fascinating thing about the Miers nomination at this point is the cosmic uncertainty of its next direction. The Roberts nomination was as painfully predictable as his own lifelong preparation for it; the only question was whether more or fewer than half the Senate Democrats would vote against him. (In the end, half did.) On this one, assumptions range from confident predictions of 100-0 confirmation, since Democrats find risking it all on the unknown behind Curtain #3 far wiser than all the other options they've seen, and Republicans will fall in line because, well, because Republicans fall in line; to predictions that the nomination will be withdrawn.
I'm in the latter camp, because I think some big things have changed, Republicans have mentally moved on from Bush and started to think about 2008, and as soon as a few of the social conservative Senators turn on Miers, the whole thing will be impossible to manage. And remember that the person who is supposed to manage it is Mr. Frist, the most in-over-his-head Senate party leader since Scott W. Lucas. Rather than "Souter in a dress," as the right-wingers have called her, Miers is Bernie Kerik without the mustache.
(Identical articles in this morning's Times and Post represent the best effort to make this problem go away, but, particularly because the articles are carbon copies, it's a little too transparent. Both rely almost entirely on Judge Nathan Hecht, Miers's "on-again, off-again boyfriend" of many decades and previously known as the only judge on the Texas Supreme Court to the right of Priscilla Owen, who reports that in the midst of her late-30s turn to an evangelical church, she told him, "I'm convinced that life begins at conception." Also quoted in the Times supporting Miers's right-wing credentials is Merrie Spaeth, identified only as a friend and a former Reagan administration official, but better known as the publicist behind the Swift Boat attack group. Perhaps this should be called the reverse-Swift Boating of Harriet Miers. And it also raises the question: Why do you need five bylines -- two in the Times, three in the Post -- on an article that was constructed entirely in the office of Karl Rove?)
It's easy to get deeply involved in deep strategizing around this nomination. Should Democrats provoke the internal warfare of the Republicans by embracing Miers even more closely? Should they gamble on what Rumsfeld would call the unknown unknown over the known unknown?
I realized last night that all this is too much double-thinking. The one and only thing to remember about Miers is that she is totally unqualified to sit on the Supreme Court.
It's not a particular thing, like that she went to second-string law school or has never been a judge or never argued a case at the federal appelate level. Nor is it that she's been disbarred or fell asleep in court or stole money from escrow accounts. (None of which are true, as far as I know.) It's that there's nothing there. Take away the George W. Bush-loyal-staffer aspect of her resume, and there's absolutely nothing except some modest corporate law-firm and bar-association management, skills that are of no relevance on the Court. Sure there's some ambition and toughness, presumably reasonable intelligence and a taste for hard work. To get a foothold in the law firm world of Dallas in the 1980s she surely had to work, as the saying goes, twice as hard as any man. But she is hardly the pioneer that Justices O'Connor and Ginsburg had been decades earlier.
The reason this is so important to say goes back to the fight over the Nuclear Option and the nominations of Janice Rogers Brown and Priscilla Owen last spring. One of the big underlying questions then was whether a judicial nominee's ideology, even way-out-of-the-mainstream ideology, could be a factor in confirmation. A number of us warned at the time that any deal that let an Objectivist crackpot like Brown go through would set the bar for extremist ideology so low that in effect, ideology could never be a factor. And Senator John Cornyn issued a statement immediately after the Owen confirmation crowing about "The Owen Precedent" that judicial philosophy could not be a factor in blocking a nomination.
Cornyn is wrong (and he won't hesitate to ignore his precedent when a Democrat is president), but the idea that qualifications are the main thing that the Senate should look at has a much stronger hold after the Nuclear Option deal. And that's why it's so important to be frank about Miers's qualifications. Miers is to qualifications exactly what Brown and Owen were to ideology. She sets the bar so low that if she's considered qualified, then who -- other than, say, Jack Abramoff -- is not qualified? If Miers is confirmed, it effectively establishes that neither qualifications nor ideology should be a factor in confirmation.
Given that the Bush presidency still has more than three years to go and there might well be two or more additional vacancies on the Supreme Court as well as numerous circuit court vacancies, this should be the one and only factor that Democrats should consider.
Update [2005-10-5 12:52:54 by mschmitt]: I realize after posting this that my argument is eerily similar to George Will's, who says that if Miers is confirmed, "the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends." I agree completely. I even agree with Will that if Bush actually thought the McCain-Feingold campaign finance law was unconstitutional, as he said he did, he shouldn't have signed it. I don't endorse Will's snooty view that "constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest." Many people who have distinguished themselves in other aspects of public life would make fine Justices, but there's nothing about Miers that puts her in that category.)
Something isn't right about this nomination. These guys are never this far off message, and they never let Bush make an ad hoc decision like this. BushCo wants this done by the Thanksgiving recess. Why? Maybe my tinfoil hat is on too tight, but I can't help but wonder- has there ever been a sitting Justice subpoenaed?
As BushCo secretary, staff officer, counsel, and personal lawyer, Miers would have been privy to all the conversations aboard AF 1, Rove, Cheney, Libby, etc.
Maybe this is just to get her out of the way. Maybe she actually is someone with integrity that would tell the truth if questioned in a Plamegate trial.....October 5, 2005 9:02 AM | Reply | Permalink
...is the fact that Bush is clearly the beneficiary when the SCOTUS does not meet the level of legal analysis and judgement that everyone right and left is now calling for. His own presidency is exhibit A. And Miers raises the other sad notion that any issues that come before the SC because of actions taken during his presidency could be exhibit B.
October 5, 2005 9:10 AM | Reply | Permalink
dc
October 5, 2005 9:29 AM | Reply | Permalink
If Miers gets bounced, it would be a crippling blow to an already wobbling Bush presidency. Frist is weakened. Hastert is weak. DeLay is out of the picture. Blunt is new on the job. Who's going to run things? Unless there's some budding Lyndon Johnson hidden away on the R side of the aisle, they can't afford the problems that bouncing Miers would cause. For this reason alone, The Dems should do what it takes to egg the wingers on in their opposition to her. Let their crazies push their ideology at the expense of ballot box success for once.
October 5, 2005 9:49 AM | Reply | Permalink
Interesting you raise Kerik. Miers is similar to Kerik because she is a Bush personal choice, not that of legal professionals. Again like Bush's assessment of Putin, Bush's history of going on his evaluation has been bad for him and us. [I wrote more on Washington Note w/ Steve Clemons http://www.thewashingtonnote.com/mt/mt-comments.cgi?entry_id=997 ]
October 5, 2005 9:54 AM | Reply | Permalink
X Dubious Qualifications
X Extreme Views
X Proven Partisan Operative
For the full story, see:
"Miers Fails the Three Strikes Test"
October 5, 2005 10:00 AM | Reply | Permalink
Given that the repubs have a solid 55 votes in the Senate, they could ram through any wingnut theocract judge they wanted. Bush's selection of Miers seems to indicate that someone in the WH is trying to cover their butt. Bush is a lame duck with coattails dragging in the mud; it's now every man/woman for themself.
October 5, 2005 10:01 AM | Reply | Permalink
The Times and Post pieces are classic Rove. He is trying to convince the far right that Miers is a "true believer" so where would be the best place to reach the far right? The Times and Post? I think those stories were meant to cause the left to start questioning her based on her evangelical faith and once the left started in the far right might be less skeptical of Miers. If the left doesn't like her she should be acceptable to the far right, correct?
The bar has been set very low with Miers. Roberts was a highly qualified legal mind, a rock solid conservative, but not the next Scalia or Thomas. And there is no way to tell anything about Miers. The far right has given up on their Golden Boy "Super Georgie". All bets are off if the vaunted "unity and discipline" of the conservative movement will survive the next 3 years or survive even to next week. We should support the president's right to pick whoever he wants for the SCOTUS. And if the far right has issues, take it up with the Prez, not us... ;)
October 5, 2005 10:21 AM | Reply | Permalink
It seems to me more likely that Bush wants someone who he regards as a true believer on the supreme court in case he gets into big trouble with Plamegate.
October 5, 2005 10:23 AM | Reply | Permalink
Does he have so little regard for the Supreme Court and Justice O'Connor that he nominates somone so ill qualified to replace her. You've got to wonder how she feels about her replacement.
Still something does seem fishy about this. Pack the court full of 'Yes' people? Where the court will effectivly stop being a third branch of govt...rubberstamping the executive decisions? Congress is pretty much in lockstep with the Executive branch. Tie that with the increased military powers to operate within the states. It's going to be an interesting few years.
October 5, 2005 10:34 AM | Reply | Permalink
Bush just wants a Supreme Court that will let him do anything he wants. Miers thinks Bush is the most brilliant man she has met. Roberts showed his loyalty by ruling for Bush on the military tribunals at itmo, affirming Bush's self-dlegated right to disappear anyone he wants any time without judicial review or due process. Padillo's case, a US citizen disappeared within the US is coming up, and Bush wants the court stacked in favor of his imperial authority.
October 5, 2005 10:37 AM | Reply | Permalink
Thanks to Andrew Sullivan for quoting Jonah Goldberg:
"Conservatives, I thought, were supposed to believe ideas have consequences, that American institutions - chief among them the Supreme Court and the Constitution - have specific and organic roles to play in the culture which depend on intellectual honesty, opposition to cant, and a dispassionate rejection of the politicization of the law. The reliable vote argument -- absent other rationales -- runs counter to all of these. This becomes obvious when you imagine a Democratic President appointing a confidante with few obvious credentials for the Supreme Court. A President Kerry could hardly convince any of us that his pick should be confirmed because she's a reliable vote." - Jonah Goldberg, NRO.[emphasis mine]
October 5, 2005 10:59 AM | Reply | Permalink
Could it be that the Meirs nomination has nothing to do with whether she holds right wing, conservative Christian viewpoints?
Rather then wrangle over the hidden crucifixes in Meirs’ and Howard's closets, perhaps we should focus on what they have in common. Bush has not nominated ministers, but corporate attorneys. Abortion is not necessarily what we are risking in their appointment, but rather Social Security, the EPA, OSHA, and the assortment of social services placed under fire by this administration.
To state that the Bush administration has been anything but a windfall for corporate globalism would be difficult. By selecting virtual unknowns to the two SCOTUS openings, Bush has effectively frozen the opposition while carrying his conservative on base on "faith".
The public religiosity of the Bush administration has been an effective harness for guiding the support of the religious right. The national media has fanned the flame of the divide between the people of faith and the rest of us. But make no mistake; the true dogma for the Bushites is unrestricted, global, big business. How better to ensure a comfortable future for unrestricted corporate dominance then guaranteeing them 2 SCOTOUS votes.
- Koof
October 5, 2005 12:11 PM | Reply | Permalink
While Democrats can let Republicans snipe at each other for now, they should not let the nomination go through simply out of fear for what may lie behind door #2. The Miers nomination seems perfectly suited to maintaining executive privelidge for an administration that has sought to cover up everything from torture and manipulated intelligence to energy policy and outing CIA agents. At least Brownie had experience with judging prior to being nominated.
October 5, 2005 12:51 PM | Reply | Permalink
I went to a top law school (Columbia), and have argued 20 cases at the federal appellate level -- so if Bush withdraws Miers, I'm available . . .
October 5, 2005 12:59 PM | Reply | Permalink
Code words and phrases like <I>judical activism</I> and <I>legislating from the bench</I> have come to mean the precise opposite of the what a reasonable person might take them to mean on face value.
Bushco is selling the nominee on the grounds that she is a strict constructionist who will not engae in<I>judical activism</I> or <I>legislate from the bench</I> out of the hope that the left will buy it at face value (or in this case have little to refute) and the right will run it through the Bushian up-is-down, war-is peace filter and come away thinking that Miers is a right wing activist who will give them the legislation they seek from the bench.
Isn't it time to call the wing-nuts on this? If not now, when? Call the right wing on the fact that the disappointment with Miers stems from her not explicitly being a judicial activist who will legislate from the bench. The right wing will likely counter such criticisms by attacking Miers qualifications.
From the left, don't attack the nominee right now. Attack the pervasive culture of right-wing double speak, obfuscation, and hypocrisy.
In that environment see if they don't savage Miers based on her lack of qualifications. The collatoral damage caused by such a fault should be the real end goal here.
October 5, 2005 1:04 PM | Reply | Permalink
The Bush legacy is cronyism, placing a friendly antagonist in key positions to destroy a department or organization (see also John Bolton/United Nations) or the inept (see also Mike Brown/FEMA). Is this the best America can do for a lifetime appointment to the highest court in the land? This is a lame duck upraised middle finger to the American public.
"Ever feel like you've been cheated?" - Johnny Rotten
October 5, 2005 1:27 PM | Reply | Permalink
I went to a top law school (Columbia), and have argued 20 cases at the federal appellate level -- so if Bush withdraws Miers, I'm available . . .
Frederick...only if you tell us who the most brilliant man you've ever met is.
October 5, 2005 1:59 PM | Reply | Permalink
As far as getting her confirmed before Thanksgiving, Bush is trying to avoid having the decision on Miers wait until the New Year. My guess--but I'm sure a staffer could chime in--is that there is very little time in the Senate legislative calender between Thanksgiving and the beginning of '06 which doesn't begin until late January. By that point, electioneering for the midterm elections will be heating up, and the voting on Miers will become a real lightening rod for congressional members on the right and far right particularly in the Senate. Santorum, the Prince of the Christian right, will have to look his right wingers in the eye and say I had to trust the president. But he'll be in the fight of his career this time around, and things don't look well for him. The last thing he can do is lose people on his right, because he certainly isn't gaining them from the middle or left.
Remember, in a midterm election, it comes down to rallying your base because the independents and undecideds don't typically show unless there's a real need. If the republicans are attacked by there right flank for the Miers vote, they'll lose any momentum or spirit going into the election season.
October 5, 2005 2:08 PM | Reply | Permalink
Who the most brilliant man you've ever met is,
Please identify your long time companion.
October 5, 2005 3:10 PM | Reply | Permalink
I'm beginning to think that maybe we haven't kept our tinfoil hats on tight enough with this crowd. We keep thinking that they care about governance, when it seems they only care about increasing the economic divide in their favor.
October 5, 2005 3:40 PM | Reply | Permalink
As Owen was setting record lows for idelogical extremism, Kerik wasi ncomparable with his mix of incompetence, boorishness and dodgy ethics (verging on being an outlaw). Hard act to follow.
How unqualified Miers is? I made the following mental experiment: Bush nominates the guy (or a woman) who was filling his taxes for the last 20 years to be the Chairman of the Fed. Nobody heard of the guy besides his classmates and the most assiduous observer of the Texan social scene.
What would happen in such a case?
October 5, 2005 4:38 PM | Reply | Permalink
I'm not much for overwrought conspiracy theoretics, but I am curious as to the choreography of dissent surrounding Miers.
I wonder, however fleetingly, whether this might be some sort of grand, Rovian dodge--an elaborate coup de gras--actually calculated to fail so as to a) put some space between the recent spate of conspicuous hideousness that has beseiged the administration of late and, b) stage a veritable OK Corral over the next nominee.
It'll be campaign season before the "newcular nominee" can be considered. Bush and (putatively) Cheney are out of the game in '08. Maybe this is their way of rolling the dice, taking their shot...
...just saying, 'what the f***' and going out with a bang.
I've come to believe that they are either genuine, true believers, willing to die with their boots on, or serial, cynical, recreational antagonists who derive a certain diabolical/schadenfreudean pleasure--and routinely achieve remarkable success--through the proper management of chaos and conflict.
Either way, this whacky notion fits. It's John Bolton on a trans-generational scale. Rove openly admits that he'd like to leave the DNA of this administration in American public life for years to come.
An old fashioned shoot-em-up over a make-or-break justice for the 21st Century might well do the trick. Win or lose.
Imagine the possibilities. (My favorite fantasy sequence along these lines has Miers being rejected and replaced as nominee by former Alabama Cheif Justice, Roy Moore, but any major hard-ass will do.)
Alas, it feels as though--dramatically speaking, at least--this administration has peaked.
October 5, 2005 7:24 PM | Reply | Permalink
trouble with his Texas Air National Guard records. The arrogance of appointing one's personal lawyer to be a supreme court justice!
October 5, 2005 9:16 PM | Reply | Permalink
Well, if I'm in the running for nomination, that would be George W. Bush, of course -- although I haven't actually met him yet. Until such time as I meet the Great W, probably Columbia law professor/district judge Gerard Lynch.
October 5, 2005 11:04 PM | Reply | Permalink
My wife Denise. We have a daughter, Jennifer -- so I'm a confirmed heterosexual! Obviously I'm highly qualified to be a Supreme Court justice.
October 5, 2005 11:06 PM | Reply | Permalink
With respect, it is apparent that Harriet Mier is entirely unqualified for the Supreme Court in that her nomination appears to rest solely on her relationship with the President. The fact that her name has been put forward is an insult to the Court and to the rule of law in the United States.
But perhaps that is not the point.
Thinking Rovian, it is quite possible that she was nominated because she could be reliably trusted to "take one for the team" and go down to defeat after a stiff battle -- the idea being that this will pave the way for the next nominee, in the wings for the moment, that will truly satisfy the base.
October 6, 2005 7:23 AM | Reply | Permalink
If you can't endorse Will's "snooty view" that "constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest", what does this say about those people that have devoted their careers to the study and/or practice of constitutional law? That they have wasted their time and effort to acquire specialized skills and knowledge that any bright person could pick up in a brief orientation session before taking up his/her position on the Court?
October 6, 2005 10:49 AM | Reply | Permalink
All that having been said, my problem with Harriet Miers is that Bush has revived “old fashioned affirmative action.” Just take a look at the differences in the Roberts and Miers announcements. A man with Ms. Miers credentials, or lack thereof, would never have been nominated. Couple that with the fact that she invited Gloria Steinem to Southern Methodist U. (via DailyKos), and is rumored to approve of the International Criminal Court, you have to wonder: does Bush have a clue what he’s doing? The answer is a resounding no. His weakness made him listen to others and his arrogance made him think he could get away with it.
Taylor Marsh
October 6, 2005 11:19 AM | Reply | Permalink
We all keep coming back to qualifications that don't exist in her case. We can't even have a decent battle over ideology and philosophy that are missing. Instead we are probing religion, ministers and conversion experiences.
I for one don't want to see a fight over her religious beliefs. If we go there this time what do we do with future nominees - yank out their religious texts and fight over them? Do we start making assumptions that an atheist is bad and so should not be confirmed for a public position? Do assume to understand a Muslim by probing the Koran? Is a Catholic presumed to oppose abortion?
October 6, 2005 1:21 PM | Reply | Permalink