Why Miers May Be In For A Rough Ride
Over at Balkinization, I've written a long post explaining why social science data from past confirmation votes suggests that President Bush may have an uphill battle with the Miers nomination.
The basic idea is this: Perceived qualifications and perceived ideology are both very important to the success of a nominee. However, their interaction is particularly important.
If a nominee is widely perceived as highly qualified, he or she is very likely to be confirmed. The nominee will pick up votes even from Senators who are vigorously opposed to the nominee's perceived politics (as viewed at the time of confirmation). However if the President submits a nominee whose qualifications are in doubt (whether fairly or unfairly), the nominee quickly begins to lose votes among senators who believe that the nominee's politics are likely to diverge from their own. A nominee who appears unqualified will usually hold onto votes from Senators who believe that the nominee's politics are very close to their own-- ideology trumps lack of qualifications-- but the less qualified the nominee appears, the fewer other senators who will vote in favor. This doesn't matter if a majority of the Senators have the same ideology as the candidate, but that is rarely the case.
You can see then, why the Roberts nomination was smooth sailing-- he had impeccable establishment legal credentials-- and you can also see why a stealth nominee like Miers whose credentials have been questioned may be in for a long, hard slog. The problem is not from the left-- lack of knowledge about her views may actually pick up votes. It's from the right-- conservatives can't be sure that her views are sufficiently close to their own.
Bush may get this nomination through the Senate. But it promises to be much more difficult than the Roberts nomination.















Has anyone considered that the consternation being voiced by Conservatives is a smokescreen to sow confusion and that Miers' views are actually to the right of right?
October 6, 2005 5:28 AM | Reply | Permalink
The way that John Roberts came out yesterday against states rights must assuage their fears somewhat; it is sad to realize that the only hope for progressives is that Miers is an unknown quantity and might miraculously become a Souter (how likely is that?). If she goes down, (especially if it is because of the far right) I wonder what kind of vindictive appointment Bush would come up with next. Hell, his legacy is already shot. It could get interesting!
October 6, 2005 6:20 AM | Reply | Permalink
Simple ..no cospiracy theories need to understand the obvious...she's about to get hacked ..she , a Stealth Hack herself
October 6, 2005 6:34 AM | Reply | Permalink
I think most of them enjoyed the specter of John Roberts dualing with the bloviating senators and wanted an encore, not an unexciting friend of Bush.
October 6, 2005 6:52 AM | Reply | Permalink
"The way that John Roberts came out yesterday against states rights must assuage their fears somewhat"
Huh? Conservatives generally support states rights.
October 6, 2005 6:54 AM | Reply | Permalink
Time to put away the tinfoil hat.
There's no double-reverse going on here.
October 6, 2005 6:58 AM | Reply | Permalink
Huh? Conservatives generally support states rights.
Actual conservatives may they support states rights, but the Bush Conservatives like Scalia have been pretty consistent in their inconsistancy on states rights. Gun policy versus drug policy. Mining right versus voting rights.
October 6, 2005 7:07 AM | Reply | Permalink
I think the nomination will eventually be withdrawn.
October 6, 2005 7:08 AM | Reply | Permalink
Huh? Conservatives generally support states rights.
whatever they are, the current crowd don't match historical definitions of conservive.
October 6, 2005 7:31 AM | Reply | Permalink
Gun policy versus drug policy. Mining right versus voting rights.
Bush versus Gore...
Oops, that's a 14th Amendment flip-flop. Guess their "inconsistencies" extend beyond tenth amendment considerations.
These guys are big supporters of "Original Intent" and "Strict Constructionism" only when they serve as useful tools to protect and/or expand their big-money interests.
Sort of like Bolton's view of the U.N.
October 6, 2005 7:37 AM | Reply | Permalink
From over at Daily Kos we have this latest update on “the Gospel according to Dobson:”
... "I'm getting calls from members of Congress saying 'tell us your take on this, we're not sure what we think of Harriet Miers.’” He then admitted "It was leaked to the media that I've had conversations with Karl Rove and the White House, which is true.”
..."There is so much in the balance [with this nominee], there is no way to put it into words . . .” Because of that, Dobson is begging the Lord: "If this is not the person you want on that Supreme Court, all you have to do is tell me so, and do it through any means you want to.”
He finally then discussed why he is supporting Miers, saying “I can't reveal it all, because I do know things that I'm privy to that I can't describe, because of confidentiality.” He then states that Miers “is a deeply committed Christian” and that people who know her have all told him that “she will not be a disappointment.”
"I believe in trusting this president and this time because of the stand that he has taken and the way he has implemented it consistently for four and a half years. When you put that with all the other information that I have been able to gather - and you'll have to trust me on this one - when you know some of the things that I know, that I probably shouldn't know, that take me in this direction, you will understand why I have said, with fear and trepidation, why I have said why I believe that Harriet Miers will be a good justice.”
He then states that "if I have made a mistake here ... the blood of those babies that will die will be on my hands, to some degree. And that's why is has weighed so heavily on me” before telling the right wing to let the confirmation process play out and not undermine Miers before the hearings.
The accumulating info. is beginning to suggest that she is indeed a stealth right-winger, but will she recover? And does the Admin. care? In a pair of posts earlier this week, I suggest that they do not. In addition to the reasons put forth there, here's another: the timing is off. With the Jewish holidays, this is a relatively slow week in D.C., which is going to be followed by Congress adjourning for a week. Thus, there is relatively little push-back to the echo-chamber of concerns re: Miers. If her nomination sits out there for two weeks with people questioning her credentials and expressing concern about her political views, she may be dead in the water.
My money remains on the link of this nomination to the Plame scandal. It's not necessarily that she was involved, but that they had to get her out there in front of it. If the investigation fizzles, and Miers is dangling out there for the next week and a half, she may be heading south. If someone gets indicted, however, there may be just enough distraction for Miers to slip through. And if she does go down in flames, and the Admin. Is not further wounded by the outcome of the Plame investigation, my money is on Gonzales getting the nod.
It just seems to me that they put Miers out there in a slow news period without prepping their base, and have not been aggressively working the press with the appropriate number and caliber of surrogates.
Something is rotten in the state of Washington, D.C.
October 6, 2005 7:40 AM | Reply | Permalink
They don't like states rights when the states want to allow medical marijuana, assisted suicide, gay marriage, importation of drugs from Canada; I could go on, but you get the idea.
They say they want little government, but they love the Patriot Act, and other highly intrusive examples of very big brother government. Basically, they don't have any real standards except that, in a nutshell, they want their own way.
JanK
October 6, 2005 7:47 AM | Reply | Permalink
That was back in the old days, when they didn't control the federal government.
October 6, 2005 7:54 AM | Reply | Permalink
My phantasy is that Dobson gets his message from sky daddy in the form of a lightening bolt in the head. It always cracks me up that natural disasters are seen as messages from god. If there really were a message to be delivered, and you were invinsible and could do absolutely ANYTHING, wouldn't you do it in a way that no human had ever seen or imagined before? Why limit it to things we have already experienced? This limitation of these disasters to our own experiences proves to me that this is not devine intervention. Lastly, if you really want to send a message, don't you think it should be unequivocal, and more specifically aimed at those who deserve it? Of course, if that happened, Washington DC would be getting a real message right about now.
Jan K
October 6, 2005 8:05 AM | Reply | Permalink
"That was back in the old days, when they didn't control the federal government."
Yeah, I think there is a lot of hypocracy in their positions. I think they let their abhorance of assisted suicide overcome their principled stand for federalism, in this case.
October 6, 2005 8:35 AM | Reply | Permalink
The Democrats aren't going to put up a fight (Reid endorsed her) and the Senators that worked-out the Nuclear Option deal ave met and at least one of them is saying she doesn't fit within the "exceptional circumstances" exception for a fillibuster.
The Bush Party may try to embarass her during the hearings, but they'll vote to confirm. After all, she thinks Bush is the greatest man she ever met and she's borne again.
October 6, 2005 8:37 AM | Reply | Permalink
I am not a conservative, but as I have understood traditional, old-line or whatever-they-are-called conservatives were states right supporters. I think by philosophy but certainly because it gave them more power.
The conservative switch to federal in my view comes from their takeover of DC. Now that they have the reins of power they are using them to institute national, uniform US rules, regulations, values.
The other conservative change is from an absolute protection of individual rights to a lessening of that protection in order to "impose" uniform values.
The Bush/Rove change in conservatism enables them to wield power to the max. Once they got there they are expanding federal power and enhancing executive power. They operate as if Republicans will always be in control. In days gone by party ambitions were reined in by the belief that in the future they would not be in power and they did not want the then dominant party to rule them.
October 6, 2005 8:44 AM | Reply | Permalink
If you ask me conservatives like liberals like outcomes they want and then wrap them in the principles that can justify those outcomes.
October 6, 2005 9:06 AM | Reply | Permalink
Am I the only one who is sick of both parties' Machiavellian thinking and tactics on court nominees? Both Republicans and Democrats are dishonoring the Court and the country.
The interaction between qualifications and ideology in the world beyond the bizarroland that is Washington, DC is that qualifications come first. Nobody wastes time worrying about what an unqualified candidate thinks or might do if hired, because they aren't hired. They aren't even interviewed. If there ever was a job for which qualifications matter it surely is supreme court justice.
Miers is obviously unqualified, so "Thank you for your interest in Supreme Court career opportunities Ms. Miers." But no thanks.
October 6, 2005 9:21 AM | Reply | Permalink
"Am I the only one who is sick of both parties' Machiavellian thinking and tactics on court nominees?"
No.
I think that is one of the unintended consequences of Roe. The divide over abortion is so bitter between the two sides that they will happily sacrifice scholarship for the correct vote on that issue.
October 6, 2005 10:28 AM | Reply | Permalink
The interaction between qualifications and ideology in the world beyond the bizarroland that is Washington, DC is that qualifications come first. Nobody wastes time worrying about what an unqualified candidate thinks or might do if hired, because they aren't hired.
Well, point more or less taken I guess, but you must not have worked in some of the companies I've worked for.
October 6, 2005 10:49 AM | Reply | Permalink
"If someone gets indicted, however, there may be just enough distraction for Miers to slip through"
I disagree. If someone gets indicted, which looks more and more likely, and not just someone but several administration top dogs, then the resulting furor will simply highlight her connections with Bush and raise the charge that since she is Bush's personal lawyer she is being put on the court to help protect him in some way. Add to that the grilling she will get about what she knew about the case and it well be even rougher sledding.
Throw into the mix a whole slew of Repubs worried more than ever about the next election and the already apparant move to distance themselves from this increasingly tainted administration and Miers may not stand a chance.
Bush will be weakened and his ability to ram though an even more conservative choice lessened, it won't go down too smoothly as well.
October 6, 2005 11:21 AM | Reply | Permalink
Perhaps its not surprising that Ann Coulter has also come out against Miers, given she wasn't a Roberts cheerleader either. What's shocking in her latest diatribe, however, is her sentiment that Bush has no right to say "trust me", and that he wasn't reelected to be 'dictator for eight years'! Yikes - next thing ya know Rush will start telling the truth, Bill O'Reilly will admit everything Media Matters says about him is true, and Sean Hannity will admit he's a friggin' idiot.
http://www.hairytruth.blogspot.com
October 6, 2005 11:44 AM | Reply | Permalink
Perhaps you have a link? If not, perhaps we should belay talk about the Minority Leader supporting Ms. Miers' nomination.
October 6, 2005 1:50 PM | Reply | Permalink
The other conservative change is from an absolute protection of individual rights to a lessening of that protection in order to "impose" uniform values. These are not changes. They are a continuation of the desire to place the power where the Conservatives hold sway. When Conservatives do not hold power in Washington, they are for 'states rights'. When they hold power in Washington, they are for federalization.
October 6, 2005 2:09 PM | Reply | Permalink
A slow news period is when there is nothing of sufficient magnitude to dislodge the thing you --or in this case the White House -- would rather the media not talk about from consuming a good piece of the front page ink in the Wa. Post and the NYT. In addition to their coverage of right wing Miers ire, the Post had a picture of a cloned cow and the NYT was talking about a 1918 flu virus today, so they're not that busy ...
October 6, 2005 4:47 PM | Reply | Permalink
The problem is this: nothing in this town is ever simple.
Yes there are some worred R Senators, but Brownback and Lott do not a defeat make. This Admin. is certainly wounded, but all those R senators know there is a price to be paid for bucking the Bush agenda, and if they want the RNC money to flow, which they do, they are going to think long and hard before bucking the President's nominee. If someone is indicted, expect them to fall on their sword -- a la the incompetent Brown and FEMA -- so mud will certainly be flung and slung, but the result of that is unclear. It could cause the R's to circle the wagon and vote her in so the issue gets resolved and the ones running next year can turn their attention to that swiftly.
There's also the problem that the American people have a RIDICULOUSLY short memory. From what I understand, Miers is not slated to receive the paperwork she's gotta fill out before her hearings -- said paperwork will trigger an ABA review and assessment, detail her career, enable appropriate background checks and offer highlights of her legal career as well as providing financial info.-- so the hearings will likely not start until mid- to late-November. That cuts both ways: she could be hanging out there long enough to die a painful death at the hands of her right-wing pals; OR they could get their troops together and rally round the Pres' pick. Either way, Harriet's great adventure could take long enough to resolve that while Plame may be an issue, it may not be the issue, esp. if Dobson and Sekulow aren't enough to reign in the unnerved (un)faithful (see below) and they keep questioning her competence and her qualifications. Poor unfortunate thing; she may get to die a number of deaths before it's all over: 1) cronyism; 2)qualifications/competence; 3) Plame.The scoop of the day suggests that the R's are a bit rattled that the White House got of the box so poorly on this. Why else did the RNC chair need to have a little heart to heart with grassroots leaders this afternoon? Here's a summary from a "usual suspect" left-wing org.
October 6, 2005 5:40 PM | Reply | Permalink
Jack,
Are you a political scientist? Can you post the results of your logit or probit?
October 6, 2005 7:24 PM | Reply | Permalink
...you're THAT Jack Balkin...the Yale con law one (Georgetown law student kicks self in head, realizing not only that he knows who you are but knows you're probably the third-best known con law prof in the country after Erwin Chemerinsky and Laurence Tribe...)
And I also found the data on your blog.
October 6, 2005 7:30 PM | Reply | Permalink
I apologize for trying to steer the debate another direction, but there may be something more straightforwardly wrong about Miers in public service. If it is more appropriate to put these comments in another thread, I will happily do so.
A few days ago (Oct 6 or so) our man Josh presented one Lawrence Littwin, a former Texas Lottery Commissioner who publicly said he wanted to testify about Miers before the judiciary committee.
Specifically to address improprieties Miers may have committed while acting as Chief of the Lottery Commission, tying in shady contracts, Lobbyist Ben Barnes and the one scandal that cano't go away - the Air National Guard story.
See http://loadedmouth.com/node/2155
(and for thosse of you who get squeamish w non- MSM news, there is this from Yahoo, which broach subjects without exploring them:
http://news.yahoo.com/s/ap/20051003/ap_on_go_su_co/miers_texas_lo ttery
And some more lines to draw:
http://progdem223.mydd.com/story/2005/10/4/6308/54915
Now somebody over at Kos put the comment below in the "cool gray box" without linking its source. Anybody know anything about this attempt to find more records on Miers from the state of Texas:
"The lottery commission blocked the release of two confidential memorandums with appeals to the state attorney general's office."
There is something there that Josh got a finger on, God bless'em.
October 11, 2005 5:45 PM | Reply | Permalink
I don't have a specific link. However, I had heard that Reid said that he recommended Miers to Bush. That was the basis of my parenthetical statement. But you are right; I've not read that Reid has said he will vote for Miers' confirmation.
October 13, 2005 4:04 AM | Reply | Permalink