Monday, October 3, 2005

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Open Miers thread

Comment away on the president's latest Supreme Court nomination -- current White House Counsel Harriet Miers.

My substantive take is pretty much in line with the Volokh Conspiracy's David Bernstein -- particularly this point:

What do Miers and Roberts have in common? They both have significant executive branch experience, and both seem more likely than other potential candidates to uphold the Administration on issues related to the War on Terror (e.g., Padilla and whether a citizen arrested in the U.S. can be tried in military court). Conservative political activists want someone who will interpret the Constitution in line with conservative judicial principles. But just as FDR's primary goal in appointing Justices was to appoint Justices that would uphold the centerpiece of his presidency, the New Deal, which coincidentally resulted in his appointing individuals who were liberal on other things, perhaps Bush sees his legacy primarily in terms of the War on Terror, and appointing Justices who will acquiesce in exercises of executive authority is his priority, even if it isn't the priority of either his base or the nation as a whole.

Jack Balkin concurs: "Although we don't know much about Miers, it's likely that, like John Roberts, she was picked with a view toward protecting executive power." That's a thought that makes a small-government conservative just giddy with anticipation, doesn't it?

As for the politics of it, Michelle Malkin chronicles discontent on the right side of the blogosphere -- including her own reaction:

It's not just that Miers has zero judicial experience. It's that she's so transparently a crony/"diversity" pick while so many other vastly more qualified and impressive candidates went to waste.

Eerily enough, this parallels Josh Marshall's reaction:

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

Tom Goldstein at SCOTUSblog informs me that, "Moderate Republicans have no substantial incentive to support Miers."

As an anonymous e-mailer put it to me:

[At the confirmation hearings], there'll be contrasts drawn with Mr. Resume who just took his seat -- "We've just established that the lack of judicial experience or scholarly writings can be compensated for with a stellar legal record. And you, Ms. Miers, have done... what?"

Well, George W. Bush had this to say about her:

When I came to office as the governor of Texas, the Lottery Commission needed a leader of unquestioned integrity. I chose Harriet because I knew she would earn the confidence of the people of Texas. The Dallas Morning News said that Harriet insisted on a system that was fair and honest. She delivered results.

Whoa, hold the phone -- she was a fair and honest Lottery Commissioner? Put this woman on the bench right away!!!

[Isn't that a little harsh?--ed. Look, maybe Miers is supremely qualified -- I'm sure the hearings will reveal something about her competence at jurisprudence. However, a glance at her cv -- and those praising her accomplishments -- suggests that beyond not having ever served on a bench, she appears to have held no other job of parallel legal distinction. Would Miers ever be an answer to any legal question that starts, "Name the top nine lawyers who _____" -- besides serving George W. Bush for an extended period of time? In a post-Katrina environment, that dog won't hunt. You stole that from Jacob Levy--ed. Well, I only borrow from the best, and besides, Jacob also said he wanted this meme to travel as far and wide as possible.]]

Given the politics of the Supreme Court right now, there was no one -- no one -- who was going to skate through this nomination. This choice, however, seems designed to tick off every variety of conservative known to man.

No wonder Glenn Reynolds thinks Bush has pulled a perfect storm -- and not in a good way.

UPDATE: Cass Sunstein is blogging about Miers on the new University of Chicago Law School's Faculty blog:

On technocratic grounds, the following recent nominees were obviously outstanding: Roberts, Breyer, Ginsburg, Scalia, and Bork. (Douglas Ginsburg belongs in that category as well.) No one could doubt the ability and relevant experience of these nominees. Their records clearly demonstrated that they were first-rate. The same could be said of several other recent nominees as well....

What about Harriet Miers? She might be superb, but her record and experience certainly do not compare to those of recent nominees.

Jacob Levy ain't thrilled with Miers either.

Meanwhile Senator Frank Lautenberg (D, NJ) tells the Associated Press that he finds Miers, "courteous and professional."

FINAL UPDATE: Oh, man, does Larry Solum find the right quote from Federalist 76.

posted by Dan on 10.03.05 at 09:50 AM


Speaking as a conservative and someone who votes Republican (and even cringes at SNL jokes about W), I'm not particularly enthused by this pick. If she goes away, I'm not too hurt.

posted by: Klug on 10.03.05 at 09:50 AM [permalink]

Remember the "Gang of 14"? They specifically allowed an exemption to the "no filibuster" agreement in "extraordinary circumstances." Does anyone doubt that nominating a non-judge will be deemed an "extraordinary circumstance" by at least some of those 14 senators?

There is also talk that she may receive an "unqualified" rating from the ABA. That may not mean anything to the President, but it will certainly mean something to many seantors.

posted by: KipEsquire on 10.03.05 at 09:50 AM [permalink]

Well, Miers' nomination won't tick off "every kind of conservative." The most numerous kind of conservative -- the kind to which "conservative" means standing up to the liberals and the media -- will go along with this nomination, and become increasingly fervent in their enthusiasm for Miers the more she is attacked.

This is actually the kind of pick I had expected from Bush the first time around. His pronounced record of filling prominent posts with familiar faces whenever possible made the Roberts nomination a bit of a surprise for me. Unlike Dan I don't think there is necessarily a policy component to this, though I would expect Miers to lean toward the executive branch in some of her rulings. The main thing is that she has served him loyally, and with this President loyalty gets rewarded.

posted by: Zathras on 10.03.05 at 09:50 AM [permalink]

Blah. What an uninspired choice. Like the first commentor, I'm in the W. camp, but this nomination may be the last straw for me.


This is part of a brilliant strategy in which she loses the nomination, allowing him to pick a more confirmable justice... This allows the liberal base to get excited, defeat a nomination, while not actually producing any real harm to a long-term plot to pack the court with *real* conservatives.

Probably not.

posted by: cyril on 10.03.05 at 09:50 AM [permalink]

I'm unhappy. Miers is just a crony pick. Abe Fortas was not a mere crony pick of Lyndon Johnson's. Fortas was a noted legal scholar in his day - some of his articles were required reading for an undergraduate political science course on constitutional law I took at UC in the late 1960's, and recommended reading for my constitutional law course at Hastings College of the Law in 1973.

While I applaud Supreme Court appointments with no prior federal judicial experience, I'd like either state judicial experience or significant legal administrative experience plus some elected office - a former state attorney general would be ideal.

Miers' experience on the Dallas City Council, and as Presidential Counsel, aren't sufficient. In terms of federal legal administrative experience, I want things such as a former U.S. Attorney for a major federal district, a senior Justice Department position (or senior military Judge Advocate), former SEC chair, etc.

posted by: Tom Holsinger on 10.03.05 at 09:50 AM [permalink]

> Does anyone doubt that nominating a non-judge
> will be deemed an "extraordinary circumstance" by
> at least some of those 14 senators?

What makes you think the Democrats will fight? Seems that W is doing an excellent job of whacking himself in the head with a bludger; why interfere?

Unless of course you mean a _Republican_ senator will fillibuster....


posted by: Cranky Obsever on 10.03.05 at 09:50 AM [permalink]

Looks like Bush appointed someone (i) he can trust and (ii) some Democrats might like. I think Bush assumes that the GOP will not vote against him.

The hearings are going to be important on this one. If she does as well as Roberts there, she has the nomination. If she muffs it, this will give the conservative GOP senators a reason to regretfully say no.

As unimpressed with Bush as I have been lately, I have a feeling there's some misunderestimating going on amongst the base. And, maybe Bush has understood the polls that paint him as a polarizer, and decided he may need to pick a fight with his party's radicals to restore some measure of his popularity.

posted by: Appalled Moderate on 10.03.05 at 09:50 AM [permalink]

No, AM, I think "the base" is concerned about a nominee without a visible record as a judicial conservative. Most of the base will eventually fall into line, but I don't really think this is part of a strategy. Bush rewards people he likes and trusts, and the pool of people he likes and trusts is not large. Add to that Miers loyalty to and admiration of Bush and you have the reasons for this pick.

She can get confirmed, though she isn't the slam dunk Roberts was and we'll know more after her hearings in the Senate. And she might turn out to be a capable Justice. I have no basis for assessing the odds of that, and judging from the commentary I've seen so far neither do many other people.

posted by: Zathras on 10.03.05 at 09:50 AM [permalink]

The only thing surprising about this is that a large number of "conservatives" still haven't woken up to what the Bush administration is all about. I'm sure Rove will be able to bring some of them around.

posted by: Katrina Coverage on 10.03.05 at 09:50 AM [permalink]

I find it really odd reading Sullivan, for whom this confirms the wisdom of voting for Kerry, and who taunts Kristol and others for supporting Bush.

For me this nomination makes me feel BETTER about not voting for Kerry, since my greatest fear about a second Bush admin was an SC packed with Scalia type justices, and we clearly are NOT getting that.

But then a liberal hawk aint a neocon, I guess.

posted by: liberalhawk on 10.03.05 at 09:50 AM [permalink]

For those who believe Miers isn't qualified for SCOTUS-

Did you actually believe Bush was qualified for President in 2000? If you did, but think Miers is a problem, take a look in the mirror- you are the ones responsible.

Bush was woefully underqualified for President (Governor for a term+, but nothing else, NOTHING)

You can't fault Bush for thinking: If I'm qualified for President, then Miers is qualified for SCOTUS... (not to mention Brown and others)

posted by: RZ on 10.03.05 at 09:50 AM [permalink]

I think this could be Bush's one finger salute to the conservatives who made such a stink about Gonzales. It's hard to see any significant political or judicial help to him. Does it move the Court right? Hard to say yes. Does it have a long-term impact? Not at age 60. Does it provide the long-awaiting filibuster fight? Nope. Does it get the base to the polls in 2006? Not from what I've read today.

I don't think the odds of the Democrats retaking either the House or the Senate were very good (gerrymandered districts and too many incumbents) before, but I think they got measurably better today.

posted by: Bob on 10.03.05 at 09:50 AM [permalink]

I like the idea of appointing non-judges to the Supreme Court. I think the Court has become way too heavily weighted toward appellate court judges and con law professor types. Until just 20 years ago, there were justices with significant experience in the legislative and executive branches who brought a needed perspective to the Court's decision making.

I think back to the Paula Jones case where the Court held 9-0 that her case could proceed against Clinton while he was in office because it wouldn't provide much of a distraction. What a joke. If there had been one justice with real world experience in executive or legislative politics, he or she would have realized that claim was a preposterous. (I say this as a former colleague and admirer of Judge Starr and as someone who believed that Clinton deserved to be impeached for perjury and obstruction of justice in the Jones case.)

Having said all that, Harriet Miers is not the right candidate to bring that type of experience to the Court. If anything, her close ties to Bush and her less-than-stellar resume might make it more difficult to appoint someone who isn't a judge or con-law type in the future. If she isn't confirmed, for example, do you think future presidents will risk appointing someone vulnerable to the charge that he or she is not qualified?

posted by: Andrew on 10.03.05 at 09:50 AM [permalink]

If you're a conservative and hate America (that probably shouldn't be in the subjective case, but nevermind), you should be thrilled:

Bush has simply cloned Scalia (his "model" justice), without offending the right by engaging in any kind of stem-cell research-based medical experimentation.

Expect a lot of blather from Miers about how "impressed" she is with the power of Scalia's mind.

When Scalia croaks, she'll transmogrify into a Thomas clone.

No, the right is getting what it paid for in this appointment. Remember, moles don't walk around CIA headquarters sporting souveniers that read "Someone went to the Lubyanka and all I got was this stupid T-shirt."

posted by: Hemlock for Gadflies on 10.03.05 at 09:50 AM [permalink]

I love all this smoke and noise. But its pointless. Lets go over a few points:

-Bush isnt running for anything. He doesnt need votes.
-If Bush had nominated anyone the conservative critics would have found appealing, there would have been nuclear war in the senate. The nominee might have got through (maybe) but Senate business would be closed down indefinately.
-Following that point, recall that the SCOTUS is important but its not the most important thing in the world. Notwithstanding the moral crisis of our times regarding getting the pledge back in schools. Iraq? Social Security? Tax reform? GWOT? Hello?
- There may be no reason to believe Miers is a conservative, but there are few reasons to belive she is not. An out of the closet Scalia type would at best provoke mutiny in the Senate, at worst submarine the Republican Congress in 06 and WH in 08. A stealth candidate would be the solution, so the only real question is whether the social conservatives trust Bush. If not, well you elected him, live with it.
-How can Republicans senators that just spent 6 years lecturing Democrats on the President right to have his nominees approved turn around and torpedo his nominee on idealogical grounds?
-Any time Pat Buchanan and Teddy Kennedy are both pissed off, something is going terrible right.

posted by: Mark Buehner on 10.03.05 at 09:50 AM [permalink]

Mark B:

Small trivia note. Buchanan and Kennedy also opposed Souter.

Otherwise, I think you re pretty much right on the politics. It'd just have worked better if we had not just been exposed to consequences of having appointed "helluva job" Brownie.

posted by: Appalled Moderate on 10.03.05 at 09:50 AM [permalink]

Hmm, Drudge is reporting Meirs is pro-gay rights and AIDS education. The more I hear about her the better I like. Lets see how fast Sullivan goes from panning her as a unqualified Bush croney to a brave outcast from the Christian right. Poor Andrew, a pro-'torture' pro-gay rights nominee, whats he to think?

posted by: mark buehner on 10.03.05 at 09:50 AM [permalink]

While I love the right being in a tizzy, the only one they are fooling is themselves(Anyone who has angst over what an escaped murder whom resides in the Senate says and believes it should make them happy has only themselves to blame). Bush promised people like Scalia and Thomas and found ones whom could not be exposed. they can not be exposed to the right as true believers because they are not and to the left they mouth enough platitudes about social issues to send them into utterances that they can't see the forest for the trees.Try this for example: archive_2005_10_02-2005_10_08.shtml#1128378033 This one shares enough of social conservatism she can't be denied by the social right but her real purpose is to secure the De Lay wing of the Republican parties goals which is Fascism in America. Prosecutor Earle described it nicely: During an April 3, 2003, hearing in which Earle was trying to obtain information about contributors to the Texas Association of Business, a group embroiled in the current DeLay investigation, he declared the state "would offer the words of Benito Mussolini, who said that fascism should more properly be called corporatism since it is the merger of state and corporate power.(read the whole thing:

posted by: Robert M on 10.03.05 at 09:50 AM [permalink]

"her real purpose is to secure the De Lay wing of the Republican parties goals which is Fascism in America"

Mmmhmm. Quick question, what channel is your tinfoil tuned into? Im curious what the fever swamps are broadcasting this week.

posted by: Mark Buehner on 10.03.05 at 09:50 AM [permalink]

I think back to the Paula Jones case where the Court held 9-0 that her case could proceed against Clinton while he was in office because it wouldn't provide much of a distraction. What a joke. If there had been one justice with real world experience in executive or legislative politics, he or she would have realized that claim was a preposterous.

Uh, ever heard of O'Connor? And Rehnquist was neither an "appellate court judges [nor] con law professor type."

posted by: David Nieporent on 10.03.05 at 09:50 AM [permalink]

I love that people like Mark are too scared to address the real problem- Bush was never qualified to be president in the first place, and his administration continually proves that point... nominations, executing plans, uninformed ideas, etc.

posted by: RZ on 10.03.05 at 09:50 AM [permalink]

"I love that people like Mark are too scared to address the real problem- Bush was never qualified to be president in the first place, and his administration continually proves that point... nominations, executing plans, uninformed ideas, etc."

Yes. Thats the real problem. Being governor of Texas could never give you the kind of experience and qualifications being governor of Arkansas or Georgia would give. Im far to scared to address that absurd point. We should get back to talking about the wing of the Republican party trying to create a fascist state along the lines of Mussolini. Thats a productive conversation.

posted by: Mark Buehner on 10.03.05 at 09:50 AM [permalink]

And btw RZ, setting aside for the moment that people like Harry Reid think Miers is qualified (i guess that makes him unfit for office as well?), Bush has _plenty_ of nominees with vast experience and excellent ABA ratings. Judges like William Pryor, Janet Rogers Brown, and Priscilla Owens. Unfortunately your friends have threatened to shut down the senate if a qualified candidate who shares the philosophy of a president who was elected with 52+ percent of the vote were to be nominated. If you would prefer a more qualified justice you know who to blame.

posted by: Mark Buehner on 10.03.05 at 09:50 AM [permalink]

Try reading some history so your comments can go substance as opposed to name calling. Fascism is a political idea with a substantial history.

posted by: Robert M on 10.03.05 at 09:50 AM [permalink]

"Try reading some history so your comments can go substance as opposed to name calling. Fascism is a political idea with a substantial history. "

It is?! I thought it was some word you came up with on the spot! Please, enlighten me further. In just which respects does Tom Delay and the Republican party endorse an idealogy inherintly incompatible with representative democracy? Can you perhaps explain to my uninformed mind just how a party that espouses reducing/eliminating federal regulation on business, reducing corporate taxes, and generally defering to markets intends to combine the interests of corporations and the state? Particularly in a republic. I dont recall much of that from the 'Doctrine of Fascism' (which im sure you mispoke on was actually written by Giovanni Gentile, not Mussolini who plaguerized it, but you knew that). I must thank you for this brilliant new and untapped avenue of my intellectual development. It makes me wonder if perhaps terms such as 'communism', 'capitalism', or 'laissez-faire' have a historical tradition attached to them as well. Perhaps i should go get another degree.

posted by: Mark Buehner on 10.03.05 at 09:50 AM [permalink]

Please read the intial post in its entirety and you will understand how Mussolini was used. This means you have to read the source cited. If we start there you may or may not find enlightenment.

In a republican democracy legislators can be elected whom view corporate interests as the same as the state. Fascism or some seemingly benign form of it can be elected before it mastisized(sic?) into what we had with Hitler or Mussolini(you do remember they were voted in?). Or they may come about like Franco's Spain and Pinochet's Chile, i.e. devolve downward to some form of republican democracy after a coup d'etat to the existing state.

You do yourself a disservice to think that nothing changes.

posted by: Robert M on 10.03.05 at 09:50 AM [permalink]

What do they have in common?

They're both more conservative than anything Gore or Kerry would have nominated.

posted by: Bithead on 10.03.05 at 09:50 AM [permalink]

Oh goodie, we've got Mark engaged!!

Governor of Texas, yes, that's right. What exactly was his credentials for that job? Oh yeah, NONE. His name was Bush.

So we have a president who's total LIFE EXPERIENCE worthy of POTUS was less than six years as a Governor.

That's weak.

The United States of America deserves better than someone who skated through life on his last name. Now he's there, people like Mark should NOT expect better.

posted by: RZ on 10.03.05 at 09:50 AM [permalink]


If you're too stupid to understand that prior governors like Clinton and Carter had worthy experience beforehand, I'm happy to educate you on the matter.

Let me know!

posted by: RZ on 10.03.05 at 09:50 AM [permalink]

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