Thursday, October 13, 2005

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Most embarrassing Miers moment yet

From today's Washington Post story by Peter Baker and Charles Babington on the Miers nomination:

The Senate Judiciary Committee sent Miers a questionnaire yesterday that included several items the panel did not ask of [Chief Justice John] Roberts. "Please describe in detail any cases or matters you addressed as an attorney or public official which involved constitutional questions," the questionnaire asks. (emphasis added)

Is it just me, or would this be like asking a nominee for Secretary of State, "Please describe in detail any foreign experience or travel you experienced"? UPDATE: Michael Froomkin supplies a more exact analogy in the comments.

posted by Dan on 10.13.05 at 01:58 PM


She's White House Counsel, for God's sake. She deals with Constitutional questions every day.

posted by: John Salmon on 10.13.05 at 01:58 PM [permalink]

"She's White House Counsel, for God's sake. She deals with Constitutional questions every day."

I think you're confusing White House Counsel with Solicitor General. WHC is a political position that advises on policy issues, not constitutional questions.

posted by: KipEsquire on 10.13.05 at 01:58 PM [permalink]

Actually, the Supreme Court deals with piles and piles and piles of non-constitutional questions every year. They just are not the ones that tend to make headlines. For example, interpretation of federal statutes. Review of administrative decisions. Some of those do involve constitutional issues, but many do not.

So it would be more like asking the Secretary of State nominee, "Please describe in detail any foreign experience or travel you have with the top eight OECD nations." It's real important - but there is another world out there too.

posted by: Michael Froomkin on 10.13.05 at 01:58 PM [permalink]

Side note to KipEsquire: I would think that a White House counsel would deal with the constitutional role and powers of the presidency as much as anything, no?

posted by: Stan on 10.13.05 at 01:58 PM [permalink]

I see Froomkin's point, but its not just that the constitutional questions are important, but that constiutional misjudgments are virtually impossible to fix. If the Court misintrprets a federal statute, Congress can change the statute in a matter of months (maybe even make the change retroactive). If the Court misinterprets the Constitution, it make take a generation to amend the document or replace the justices. In the case of Dredd Scott, it only took a war.

If this were still the Cold War, I would ask the Secretary of State to describe, what, if any, expereince you have with the Soviet Union?

posted by: PD Shaw on 10.13.05 at 01:58 PM [permalink]

This questions seems reasonable to me. She has written nothing on constitutional issues, unlike Roberts. And while she may have addressed such issues in her White House job, the administration will almost certainly refuse to turn over related documents to the Senate. So what choice does the committee have but to ask her outright what matters she's addressed involving constitutional questions.

This does seem to bear out the reports of a committee staff "revolt" against Miers nomination, however.

posted by: Scott Parrish on 10.13.05 at 01:58 PM [permalink]

"This does seem to bear out the reports of a committee staff "revolt" against Miers nomination, however."

I agree, and I suspect that this revolt will only exacerbate in the coming weeks. Bush is already waist-deep in political hot water w/ Iraq, the Katrina debacle and the recent indictments (approval ratings hovering around 37% in poll after poll). His troubles are going to become even worse very soon since the US is approaching the 2,000th killed soldier in Iraq, and the 15,000th wounded soldier. This will have the media pouncing all over the story and make an unpopular war even less so, with escalating damage to the war's big boosters like Bush and Cheney (and probably Hillary Clinton too).

If Bush's ratings drop into the 20-30% range, GOP Senators will probably consider Bush to be a liability rather than an asset to their campaigns (that conclusion is already being drawn in many quarters), and they'll have even less reason to support a nominee like Harriet Miers who's already embattled and very unpopular with the base. The Dems are already salivating at the prospect of taking down one of Bush's most cherished cronies and delivering him a little more humiliation. With the GOP in full-scale mutiny, they'll have plenty of help from the other side of the aisle, whose interests will converge for very different reasons.

posted by: Toucan Dan on 10.13.05 at 01:58 PM [permalink]

"Side note to KipEsquire: I would think that a White House counsel would deal with the constitutional role and powers of the presidency as much as anything, no?"

Yes. As a single-minded advocate of maximizing the power of the president. Some might think that is a bit narrow viewpoint for a would-be justice if that is ALL the consitutional experience they have.

posted by: Cranky on 10.13.05 at 01:58 PM [permalink]

I would argue that in this White House, which has arguably been walking on the fine line at the edges of the constitution since 9/11, the White House Council would in fact need to have a very good understanding of the constitution.

I would reinforce that point by suggesting that if she lacked that understanding, a lot of what the White House has been doing would have been overturned in the courts. I tink if you'll look, you'll find damned little of it has.

posted by: Bithead on 10.13.05 at 01:58 PM [permalink]

Comparatively little of anything any White House has done has been overturned by the court; it's a look time since Ex Parte Milligan....

It's well to note, too, that working out strategies for BYPASSING the Constitution hardly constitutes work on "Constitutional issues."

posted by: Hemlock for Gadflies on 10.13.05 at 01:58 PM [permalink]

doesn't anyone else see the irony of conservatives who supported Bush to be president, despite his complete lack of qualifications, suddenly acting like they care about the qualifications of public officials?

If Bush had submitted the name of someone with the same "lack of qualifications" who was adamantly and publicly homophobic and anti-choice this controversy wouldn't exist. (And, if it had been an equally unqualified male who got the nod, conservatives wouldn't even notice his lack of qualifications.)

posted by: p.lukasiak on 10.13.05 at 01:58 PM [permalink]

Lukasiak has a point, even if noone on the Right will acknowledge it. Not about Bush being qualified, but about Miers being a woman. If Miers were a man as well as Bush's WH pit bull lawyer, few Republicans would doubt the credentials as a true conservative.

Politically, this is idiotic and a meltdown of sense on the conservatives part. Rejecting Miers would force Bush to do 1 of 2 things, either appoint someone _less_ conservative than Miers in order to win confirmation, or appoint anyone else and guarantee a filibuster.
If rejecting a democrat suggested nominee like Miers and intentionally sending someone more reactionary isnt invoked as grounds for the 'extraordinary circumstances' clause, i'll eat my hat. The _only_ relevant question here is whether the Republicans have 50 votes to press the nuclear option. The answer may well be NO, which means tossing Miers overboard will lead to a total fluster#@^& in the Senate with the Republicans on the losing end. Rejecting Miers could be the Republicans Stalingrad in my opinion.

posted by: Mark Buehner on 10.13.05 at 01:58 PM [permalink]


The man was Governor of Texas. And, despite your best efforts to show otherwise, had more military experience than his predecessor. And was -- unlike his predecessor -- re-elected with over 50% of the vote.

With things going so badly for Bush, one would think you would be delighted. But you come across as hateful and bile-filled as ever. Try to cheer up, willya?

posted by: Karl on 10.13.05 at 01:58 PM [permalink]

Governorship was no longer a Presidential qualifier sometime between 1996 and 2000. Its in the rules somewhere.

posted by: PD Shaw on 10.13.05 at 01:58 PM [permalink]

Maybe presidential experience is the new baseline. Get a few years in as president of Belize or Latvia, then maybe move up to the majors.

posted by: Mark Buehner on 10.13.05 at 01:58 PM [permalink]

Bush would have had to answer that foreign travel question by describing an adventure throwing up in Mexico, as I understand it. You can attack those of use who believe that Bush is totally unqualified for his position with epithets, but unfortunately, the proof is starting to be in the pudding.

posted by: Paleokaus on 10.13.05 at 01:58 PM [permalink]


Governor of Texas is probably one of the weakest gubernatorial positions in the country. But hey, don't take my word for it.

Indeed, one could make a compelling argument that the role of lieutenant governor in Texas is far more powerful.

posted by: Randy Paul on 10.13.05 at 01:58 PM [permalink]

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