*** This post is being updated throughout the day as I stumble on more commentary. ***
Blah, yeah, I'm frustrated over the President's pick of Harriet Miers. The secondary reason I supported Bush so strongly last year -- after the War on Terror -- was so that he could make some strong, conservative appointments to the Supreme Court. And instead I get, what? Some staffer I've never heard of? The blogs, and even dead-tree media, have been full of brilliant, conservative suggestions, but instead Bush nominates a flack. Great. I could write a bunch more about it, but I pretty much agree with David Frum's assessment.
The Miers nomination, though, is an unforced error. Unlike the Roberts's nomination, which confirmed the previous balance on the Court, the O'Connor resignation offered an opportunity to change the balance. This is the moment for which the conservative legal movement has been waiting for two decades--two decades in which a generation of conservative legal intellects of the highest ability have moved to the most distinguished heights in the legal profession. On the nation's appellate courts, in legal academia, in private practice, there are dozens and dozens of principled conservative jurists in their 40s and 50s unassailably qualified for the nation's highest court. Yes, Democrats might have complained. But if Democrats had gone to war against a Michael Luttig or a Sam Alito or a Michael McConnell, they would have had to fight without weapons. The personal and intellectual excellence of these candidates would have made it obvious that the Democrats' only real principle was a kind of legal Brezhnev doctrine: that the Court's balance must remain forever what it was in the days when Democrats had a majority of the votes in the U.S. Senate. In other words, what we have, we hold. Not a very attractive doctrine, and not very winnable either.
The Senate would have confirmed Luttig, Alito, or McConnell. It certainly would have confirmed a Senator Mitch McConnell or a Senator Jon Kyl, had the president felt even a little nervous about the ultimate vote.
There was no reason for him to choose anyone but one of these outstanding conservatives. As for the diversity argument, it just seems incredible to imagine that anybody would have criticized this president of all people for his lack of devotion to that doctrine. He has appointed minorities and women to the highest offices in the land, relied on women as his closest advisers, and staffed his administration through and through with Americans of every race, sex, faith, and national origin. He had nothing to apologize for on that score. So the question must be asked, as Admiral Rickover once demanded of Jimmy Carter: Why not the best?
Miers has been a member of Valley View Christian Church in Dallas for 25 years, where Hecht has been an elder. He calls it a "conservative evangelical church... in the vernacular, fundamentalist, but the media have used that word to tar us." He says she was on the missions committee for ten years, taught children in Sunday School, made coffee, brought donuts: "Nothing she's asked to do in church is beneath her." On abortion, choosing his words carefully for an on-the-record statement, he says "her personal views are consistent with that of evangelical Christians... You can tell a lot about her from her decade of service in a conservative church."
Since I'm looking for good news, maybe I'll find some more. Beldar looks happy enough.
By objective standards, Harriet Miers has been among the few dozen most successful lawyers in private practice in the United States. Filter the Y-chromosome bearers out of that group and you're down to a couple dozen or less. Filter that group for significant public and governmental experience and we're down to a very small handful. And filter that small handful for lawyers in whom George W. Bush already has boundless personal confidence from first-hand experience, and your Venn diagram just has a one-member set left: Harriet Miers. Those are not inappropriate criteria, folks. From an overall viewpoint, using any reasonable criteria, she's qualified enough. But using those particular criteria, she's uniquely qualified.
I've got nothing against her lack of judicial experience -- that's even a plus. Despite all this reasoning about her, though, no one is arguing that she's brilliant and capable of making the great arguments that need to be made to reform our courts.
It also bothers me that Democratic Senators are so enthusiastic.
Senate Minority Leader Harry Reid, a Democrat from Nevada, personally urged Bush to consider Miers, sources say. A senior administration official, asked about the logic of the choice, points to Democratic support and the fact that, as Bush said in introducing her, Miers had been "a pioneer in the field of law"—a woman who was active in the Southern legal community at a time it was dominated by men, becoming the first female president of both the Dallas Bar Association and the State Bar of Texas. Sure enough, Reid issued a statement 90 minutes after Bush announced the pick that began, "I like Harriet Miers." He called her "a trailblazer," unintentionally echoing the language of talking points that had been sent to Republicans. He added that the court "would benefit from the addition of a justice who has real experience as a practicing lawyer."
If Give 'Em Hell Harry is happy, Bush must be doing something wrong.
Paul Deignan thinks we should reject Miers purely out of concern for cronyism, which I think is a strong argument.
Harriet Miers is many things, but she is not a Constitutional scholar, well-seasoned in elective office, or someone who has made many public speeches or presentations on the workings of government. She is an unknown and unproven functionary whose chief virtue is the one virtue that we must reject--a strong tie to a particular chief executive.
Our Constitutional system relies on a separation of powers to ensure mutual accountability through competition for public fidelity. Cronyism, the formation of hidden and undemocratic power relationships, has been the bane of divided government from its inception. When the public cannot see clearly the workings of government the people lose a sure hand in controlling their collective destiny.
Bill Kristol is depressed because replacing O'Connor with Miers doesn't reflect a desire to change the balance of the court.
I'm depressed. Roberts for O'Connor was an unambiguous improvement. Roberts for Rehnquist was an appropriate replacement. But moving Roberts over to the Rehnquist seat meant everything rode on this nomination--and that the president had to be ready to fight on constitutional grounds for a strong nominee. Apparently, he wasn't. It is very hard to avoid the conclusion that President Bush flinched from a fight on constitutional philosophy. Miers is undoubtedly a decent and competent person. But her selection will unavoidably be judged as reflecting a combination of cronyism and capitulation on the part of the president.
Ace explains Bush's mistake:
By nominating Roberts as Chief Justice, he made him a replacement for Rehnquist, rather than for Sandra Day O'Connor, as was originally planned. The thing is, Roberts could easily have been confirmed as O'Connor's replacement, and he was more conservative than her (if only by a bit) to boot. That would have allowed Bush a free hand to nominate a strong, unabashed conservative for Rehnquist's spot, as in that case he would have just been swapping one strong conservative for another.
Had he not nominated Roberts for CJ then, he would have replaces a very squishy semi-"conservative" with a more dependable conservative. And then he could have nominated a Scalia-type to replace Rehnquist. Net result: the court moves to the right.
But as it is, he has replaced Rehnquist with someone who is less of a conservative (or so it seems; who knows, really, given what little anyone knows about Roberts' actual judicial philosophy) and is replacing O'Connor with what seems to be an O'Connor clone.
Net result: the court moves slightly to the left.
Roberts was golden. Roberts could not be defeated, even as a swap for the liberalish O'Connor. Roberts was in like a tasseled-loafers Flynn.
Pat Buchanan echos my own thoughts, claiming that the White House is afraid to fight.
Conservative cherish justices and judges who have paper trails. For that means these men and women have articulated and defended their convictions. They have written in magazines and law journals about what is wrong with the courts and how to make it right. They had stood up to the prevailing winds. They have argued for the Constitution as the firm and fixed document the Founding Fathers wrote, not some thing of wax.
A paper trail is the mark of a lawyer, a scholar or a judge who has shared the action and passion of his or her time, taken a stand on the great questions, accepted public abuse for articulating convictions.
Why is a judicial cipher like Harriet Miers to be preferred to a judicial conservative like Edith Jones?
One reason: Because the White House fears nominees “with a paper trail” will be rejected by the Senate, and this White House fears, above all else, losing. So, it has chosen not to fight.
Thomas Lifson looks at the nomination strategically and sees a lot to like.
This president understands small group dynamics in a way that fewif any of his predecessors ever have. Perhaps this is because he was educated at Harvard Business School in a legendary course then-called Human Behavior in Organizations. The Olympian Cass Gilbert-designed temple/courtroom/offices of the Supreme Court obscure the fact that it is a small group, subject to very human considerations in its operations. Switching two out of nine members in a small group has the potential to entirely alter the way it operates. Because so much of managerial work consists of getting groups of people to work effectively, Harvard Business School lavishes an extraordinary amount of attention on the subject.
One of the lessons the President learned at Harvard was the way in which members of small groups assume different roles in their operation, each of which separate roles can influence the overall function. The new Chief Justice is a man of unquestioned brilliance, as well as cordial disposition. He will be able to lead the other Justices through his intellect and knowledge of the law. Having ensured that the Court’s formal leader meets the traditional and obvious qualities of a Justice, and is a man who indeed embodies the norms all Justices feel they must follow, there is room for attending to other important roles in group process.