Another Thought about Miers

If she had been exactly the same person, except a liberal — a lawyer with a very successful private practice, first woman partner at a major firm, first woman head of a major firm, first woman head of her state bar association, never married, active in her church (say, a liberal Unitarian church devoted to “social justice” issues), counsel to the president — but appointed by a president Clinton, Gore or Kerry instead of Bush — the news media would be featuring her as a spectacular pick, as a doer and a thinker, as a woman who has fought her way up in a male-dominated profession and who therefore “gets it”, as a pioneer of women in the law, as an outstanding citizen who will bring new insight to the Supreme Court, yadda yadda. Think about it. Same exact facts, the rest is spin.

27 thoughts on “Another Thought about Miers”

  1. Years ago there was a “Twilight Zone” like program on TV called “The Outer Limits”. It began with a calm but authoritarian voice speaking slowly:

    “Do not attempt to adjust your set!” At which point the screen would fill with jagged lines.

    “We control the horizontal!” And the lines would change into horizontal and scroll up and down while flickering.

    “We control the vertical!” And the lines would change into vertical.

    “You are now entering The Outer Limits.”

    I often think of The Outer Limits when listening to the MSM. They control the horizontal. They control the vertical…

    Then again, maybe I suffer from paranoid delusions.

  2. Check out Krauthammer’s article in Washington Post today.

    Miers was a huge disappointment for those of us who were W’s supporters. Her church credentials – what Wall Stret Journal called faith-based appointment – etc. are irrelevant here. It is her ability and record to uphold the constitutional process in this country that should be the main litmus test. She is no John Roberts but she could well be another Souter as couple of supreme court judges have morphed into liberals once appointed. Conservatives should not stoop themselves to the level of liberals where the main litmus test is what is politically popular in this generation. If GWB is intimidated by the likes of lowlife senators like Schumer with 55 Republicans on his side, what is the chance of the man standing up to Iranian religious thugs, the biggest security threat facing the US? It is hardly inspiring that Senator Harry Reid gave his thumbs up for Miers!

    Combined with Terry Schivo issue, this is another reason that would probably keep me away from the voting booth in 2006.

  3. Clinton appointing his lawyer would have made people, and the press sit up and take notice. Theyx kept going on years about Whitewater, after all, even when it looked as if nothing much to it.

  4. Krauthammer: “But constitutional jurisprudence is different. It is, by definition, an exercise of intellect steeped in scholarship. Otherwise it is nothing but raw politics.” He’s delusional. First, it is not as complicated as all that. Law professors would like you to believe that they do something terribly, terribly hard to understand. They don’t. The complexity of Constitutional law is mostly a result of judges who have made things up and need to create a verbal fog to hide their misdeeds. As far as “raw politics” goes, that is exactly what we have been getting for 50 or more years as a regular thing. Before that, we got frequent doses of raw politics, anyway. He is also wrong to say that she is no different from the million or so lawyers in the USA. She has had a remarkable career. Having a non-judge, non-professor, like Rehnquist, on the SC is a good idea.

    What Krauthammer and a lot of conservatives want is the public spectacle of a victory which rubs the Democrats faces in the fact that someone who disagrees with them is going to get appointed. They want to rerun the Bork hearings, but win this time. I don’t agree. Let’s see what she has to say at the hearings. I have no particular reason to think she will turn into Souter. But even if she had a written track record, that could still happen.

  5. I happen to think that another type of Bork hearing is good for the country. It educates the public (myself included) about the role of the SC and about our rights guaranteed by the Constitution. One of the strength of this country is in its public debates, something missing in even European democracies where consensus is more important. Do we really want nominees who are unknown and have taken no positions on constitutional issues? Do we really want hearings where nothing of substance is discussed? Japanese Diet (parliament) operates this way … is this what we want?

  6. Souter is a problem because Bush Sr. didn’t know him, didn’t vet him adequately and selected him in large part precisely because he had few known opinions, not because he changed on the bench. The current situation is entirely different, since Bush Jr. has known and worked with Miers for years. I assume that he appointed her because he knows exactly what he is getting.

    I don’t know if Miers will be a good SC justice but I think that much of the criticism of her is misguided. I think it’s less important that she be a scholar than that she have her feet on the ground and favor clear opinions over interesting arguments. Kelo and other SC decisions make it plain that some of the justices either don’t understand or don’t care about the real-world pain they inflict on the rest of us by their vague and capricious decisions. Miers is highly qualified, by virtue of extensive business experience, to understand that her job is not to invent new rules for the peons but to deliver clear, logical (and to the greatest extent possible, predictable) opinions that decisively resolve expensive controversies.

  7. The main thing I learned from the Bork hearings, and later again during the Thomas hearings, is how low some of the opponents would stoop to discredit reasonable nominees. As I recall, the Constitution had very little to do with it, and I see no need to repeat such spectacles. I also see no need to subject nominees to that kind of abuse.

  8. As always, I appreciate your posts and comments Lex and think you’ve interpreted the situation realistically. Somehow though, I seem frequently not to reach the same conclusion as you do from your interpretation of the facts.

    In this case wouldn’t a confrontational attitude with respect to a well-qualified constitutionalist nominee and the ensuing debate push the national conciousness along toward (or back toward) a more constitutional judiciary? I think the educational value to people not usually engaged would be very good thing indeed (not to mention the damage the wacko/lefty/radical dems would likely cause themselves – I mean, the more face time Teddy Kennedy, etc. have on national TV the better).

    Also, alas, we “have no particular reason to think she” won’t “….turn into a Souter”.

  9. JG,

    If my memory and understanding is not completely shot, wouldn’t it be fair to say that Bork was “borked” and wasn’t approved because he was a constitutionlaist?

  10. My impression is that he was opposed for not being a liberal, and that once the Left decided to oppose him they took every opportunity to slander him viciously rather than oppose him on the merits. I think there were serious reasons not to appoint him (the “inkblot” thing etc.), but he was flagrantly qualified and the opponents’ assertions that he was some kind of goon who wanted to “turn back the clock” were obviously silly. Bork has some nicely contemptuous vignettes of some of the buffoons on the Senate Judiciary Committee in his book.

  11. I started out as a supporter (or at least a wait-and-seer) on Miers but the more I learn about her, the more appalled I am at Bush’s own-goal here, and the more I hope that he withdraws this nomination immediately.

    To everyone who keeps saying that Miers is good b/c she’s a “stealth” nominee who wouldn’t get Borked by the Dems– WHERE IS YOUR NERVE? Is it necessary to remind ourselves that Bill Clinton appointed Stephen Breyer and Ruth Bader Ginsburg– both openly staunch ultra-liberals– with a *Republican*-controlled Senate and got them confirmed? And that Bush now has a solidly *Republican*-controlled Senate with 55 GOP senators? The Dems are too divided these days and a filibuster would hurt them more than the GOP. Even if they were to filibuster a rock-solid conservative nominee, their obvious obstinacy would look very bad and they’d be seen as obstructionists in the eyes of the public while the GOP base rallies to its own. Result– the GOP eventually gets the conservative justice on SCOTUS, *and* an increase in Congressional power. There has never before been a more favorable set of conditions to finally put a tough-minded, smart, experienced conservative jurist on the SCOTUS bench. But George W. Bush, w/ the most favorable field position in recent history, punted on first down.

    Miers is certainly nice and relatively accomplished and an evangelical, but this counts for about squat in the bloodsport of SCOTUS negotiations. Remember that O’Connor and Souter were both considered staunch conservatives who were bitterly opposed by NARAL, but they wound up being reliable liberals who support the mess of subsidized abortion and affirmative action. Why? They may have been conservatives but they lacked self-confidence and the *strength of their convictions* that comes with spending years on the bench, standing up to everything that Linda Greenhouse and her leftist fellow-travelers could throw at them. You have to have *ironclad* confidence to accomplish this, and Miers is dreadfully lacking in this department.

    It’s not just that Miers has donated to Dems, or that she’s cavorted w/ Gloria Steinem and other ultra-leftists, or that

  12. cont’d

    It’s not just that Miers has donated to Dems, or that she’s cavorted w/ Gloria Steinem and other ultra-leftists, or that she’s been lukewarm on conservative causes before– she simply lacks the seasoning that’s needed for a judicial conservative to *stay* conservative and argue conservative causes successfully. We need Michael Luttig, Janice Brown, Owen, or McConnell on there, not Miers!

    Even if all these arguments don’t convince you, then perhaps the impending disaster for the GOP if she stays in will. I’ve known quite a few dedicated Republican fundraisers who are hanging up their shingles in anger about the Miers pick– they’ve waited 3 decades for this moment, only to be given the shaft by Bush. Richard Viguerie, the direct-mail genius who basically sparked the grass-roots conservative revolution in the 1980s, has been especially enraged. Viguerie in particular is the type of guy that you *do not piss off*– he will form a separate third party if Miers goes through.

  13. It looks like GWB has lost his will to fight for what he supposedly believed in. SS reform was gutted, tax reform debate sounds like it was ages ago, there is talk of withdrawing from Iraq (the US has stayed for 60 years in Europe and Japan … this is the kind of commitment that the public should be conditioned for), DeLay declares that there is no fat to be trimmed from the Federal pork, and now Miers. Only those who care about ID, school prayer, and other nonsense are sticking with this presidency. The GOP has become the party of government, caring more about re-elections than implementing the ideas that brought them to power in 1994! Perhaps a Hillary win in 2008 will be good for the GOP. When you are in opposition you start thinking and start putting forth ideas. With Hillary in the WH, another Gingrich will emerge and energize the free-thinking base of the Republican party for 2012.

  14. Scotus – I did — so what is the point? Politics is a zero-sum game and if you don’t fight, you lose.

  15. Suleiman, there are many ways to fight and win, and, while it may please the sideline coaches in the grandstand (at least until they start to count the bodies), a frontal assault is seldom a smart tactic, just ask (if you could) Robert E. Lee. Lee beat the Union forces many times by out flanking them, and his greatest defeat came thanks to Pickett’s infamous charge. There is no more of a zero sum game than war, and, if indirection is usually the best play in it, then a fortier in politics.

  16. Soctus – What is the connection between Miers and frontal assault (and all the civil war comparisons)? I simply think that she is not qualified for this job. This is not a question of military tactics but that of putting more qualified people on the bench. A corporate lawyer who has never written anything of substance on the Constitution is hardly a great choice to make given that the bench is so deep.

  17. Miller’s argument doesn’t wash though. He argues that the Demos. wouldn’t fight on reasonable ground and would turn to slander and so the soft, easy way should be taken. I don’t understand why convienience is so important.

    As he mentions, this is what happenned in Clarance Thomas’ case. OK, but Thomas won and a conservative court won. If, for whatever reason a qualified, bonafide, conserv. nominee was defeated, bring on another.

    What is Bush saving his influence for? What is more important? Maybe Miers is a wonderful jurist but it sure looks like cynical “politics as usual” where a statesman’s gravitas is needed.

  18. Suleiman, it was you who brought up fighting the zero sum game of politics, and, given that conception, I think an analogy to military tactics is highly relevant. Now, you change the argument and object to Miers “qualifications.” The first qualification for any nominee ought to be whether or not he/she is confirmable. It’s a very open question as to whether any of the conservative jurists whose praises some are singing are. (See this article by Thomas Sowell.)

    Tymouth, yes Thomas was confirmed, barely, but Bork was not. Also, one can argue that the cooked up Thomas affair, and how the Republicans were forced to respond laid the groundwork for Clinton’s dealing with Gennifer Flowers. To wit: If you didn’t believe Anita Hill, why believe Gennifer Flowers. Often (even usually) very bloody victories are Phyrric.

  19. Scrotus, “the first qualification ought to be whether he/she is confirmable or not” is precisely at the root the problem here. This is wrong headed.

    Miers nomination, apparently as Mr. Bush believes and would have us believe, is an example of acting in a way that is convienient rather than a nomination being driven by principle. A slick move (presumably).

    Your comments re. Bork and Thomas are irrelevant.

  20. Tymouth, it was you who brought up Thomas. While you might not like the fact that political considerations are relevant to Supreme Court nominations, Olympian denials notwithstanding, they are. I’m sure Pickett was driven by principle as he led is men in that eponymous charge, but I’m less sure that, after his bloody, ignominous defeat, anyone took comfort from the purity of his motives.

  21. I didn’t bring up Thomas (see earlier comments). I didn’t say Thomas was irrelevant, I said your comments re. Thomas were.

  22. Ha Ha, I didn’t pay any attention to your civil war allusion before. You’re slightly amusing, but rather a waste of time, no?

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