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  • Miers — Even More Qualified Than I Thought

    Posted by Lexington Green on October 15th, 2005 (All posts by )

    I am pleased to hear yet another interesting detail, which I saw in today’s Wall St. Journal:

    … Bush’s judicial appointments over the past five years … are judicial conservatives who are already shifting the ideological balance of the federal judiciary to the right.

    By the end of his second term, Mr. Bush will have appointed one-third or more [of the Federal judiciary]. Ms. Miers has served on the committee that advises the president on judicial picks and, as White House counsel, has been chairman of that committee for the past year.

    Miers has been closely involved with the entire program of selecting the Conservative judges Bush has been installing over the last several years. This has been a quiet but effective part of the Bush presidency, one which Conservatives should be happy about. The alternative, had Gore or Kerry won would have been much different. The fact that Miers has been involved in this process, and run the process for the last year, gives me confidence that her conduct as a Supreme Court judge will be consistent with this entire program. Again, she is not a “Souter” – a man virtually unknown to the President who appointed him. Rather, Miers is a person who has worked closely with the President, helped the President select solid conservatives to serve on the District Courts and Appellate Courts. Far from being an ideological “unknown quantitiy”, she has been a major player in the conservative transformation of the Federal judiciary.

    All this, plus the fact that she is not a Con Law professor, but a practicing lawyer, makes me pleased about her selection.

    I am also confident she will be confirmed. Look to the left, at the Tradesports numbers. She was in the 90s immediately after her announcement. She has sunk into the mid-60s. In other words, she went from being overwhelmingly favored to being strongly favored. Unless she falls on her face in the hearings, which is a negligible risk, she will sail to confirmation, or so I predict.

    (Beldar, who has been banging the drum hard for Miers, mentions this WSJ article here.)

    Update: Prof. Ruth Wedgwood also has an article on today’s WSJ editorial page about Miers, which does not appear to be online. Prof Wedgwood says that the idea that only someone who has devoted years of intense study to the topic can understand Constitutional law is “balderdash”. Amen. Right on. The most disappointing class I took in law school was Constitutional law. Most of it was about coming up with justifications for social policy masquerading as legal interpretation. The document itself was not often referred to. The Con Law professoriate seems to think their franchise is threatened by this appointment. Some of them, here and there, do valuable work. But what they do by and large is simply not as intellectually daunting as many people seem to think. Much of the purported complexity of Con Law is a result of judges cooking up convoluted excuses to do things they want to do under the guise of Con Law. Professors are enablers for this behavior. They propose these intellectual subterfuges, then formulate then into systems which, at minimum, provides fodder for journal articles. Lawyers then try to navigate these mazes to advance their clients’ interests, and the whole thing solidifies. The Con Law professors are like people who have planted a jungle, then sell their services as native guides.

    I very much like the idea of a judge has been one of the grudging “customers” of this “service” sitting on the court. It is time we had a farmer with a shotgun guarding the hen-house for a change.

    Update II: It is one thing to say that it is no virtue to mindlessly support the President. I agree. I don’t. But, it seems that there is something else at work here. Bush has never given ideological Conservatives anything they have wanted on anything, as far as I can see. And there seems to be a positive relish on the part of Conservatives to turn on Bush, as if it is now their turn to join a nearly universal chorus of anger at the guy. It is like a pent up desire has finally been unleashed. Every Conservative has had some moment or another where he or she has felt acute disappointment with Bush, felt betrayed by him, or angry at him, and this nomination seems to be an occasion to vent all that. My moment was the second inaugural speech, which I thought was insane, and which left me sputtering with outrage. Few others seem to have felt the same way. But, for whatever reason, this nomination just doesn’t freak me out that much. It seems consistent with his usual practices, and likely to work out OK, as I see it. I think a key reason I feel this way is I am not surprised by this, particularly, and lots of other people seem to be. Others seem to have wanted, and expected, a grudge match with the Democrat Senators, a public, substantive fight about Constitutional principles, etc. I never dreamed that anything like that would ever happen. How could anyone really think that Bush would seek out the opportunity to do a re-run of the Bork or Thomas nominations? There was no way he was going to provoke a confrontation on a Supreme Court appointment. It is not his style. But he severely miscalculated the erosion of his base of support, due to other issues mainly, primarily spending and immigration. Also, he and his people have underestimated the way that the Internet allows an issue to come to a full boil rapidly and stay that way.

    The sooner we get to the hearings and give this lady a chance to speak for herself, the better. Then, the vote, then it is over, and we can all move on.

    Update III: Jonathan points out in a comment that it is”…a mistake to become emotionally invested in a public official …” In fact, ideologically committed voters are always disappointed when their own party comes to power. I am old enough to remember the despair so often felt in Conservative circles during Reagan’s presidency. And a quick look through, for example, the history of FDR’s presidency, particularly the third, wartime term, shows near despair among liberals who saw him retrenching on so much of what they wanted, let alone not advancing further to the Left.

    Of course, in those days, the 1980s as well as the 1930s, this kind of ideological despair and anger were only known within a small circle of activists and enthusiasts. Now, these groups can reach out to each other via the Net and aggregate themselves, and keep each other fired up. This makes it harder for any politician to shade toward the center, since his own ideological supporters will hammer him. Bush and the GOP have been spared this to a degree, so far, managing to keep the Big Tent relatively happy, or at least tolerably miserable. But this current episode makes me think that we — i.e. the GOP; I am Republican and always have been — are going to go the way the Democrats have been going in recent years. In their case, the ideological wing of the party pushes the party away from the center. In our case we we may see the emergence of various contenders to be the Howard-Dean-of-the-Right, to get the nomination, but then have trouble reaching into the center in the general election. It seems to be technologically driven that politics will become more divisive and intense, and the parties more ideologically “pure” . This will make it harder for the GOP to reach into the center, bringing it into nearer parity with the Democrats, making it less electorally viable.

    Interesting times. This may be a hinge moment. If so Miers’ nomination was the occasion, but not the cause. Far deeper forces are responsible for these changes.

     

    6 Responses to “Miers — Even More Qualified Than I Thought”

    1. nash Says:

      Patterico has a pretty good rebuttal to this argument:

      http://patterico.com/2005/10/12/3750/still-want-to-defend-bush-based-on-his-judicial-selections/

      “All those people are re-nominations from the 108th Congress, when Alberto Gonzales was in charge of picking people.”

      “So who do we have since Miers took over, anyway? Only one- James Payne, to a seat on the 10th Circuit. Good job Harriet, nearly nine months into the job and you finally get a single nominee off your desk.”

      Most devistating:

      “Bush’s own personal picks have largely been disasters- Michael Brown, Julie Meyers, Bernie Kerik, the list goes on. His judgment is not very good when people he knows personally are involved.”

    2. TJIT Says:

      Lexington,

      Every positive argument that Miers supporters bring up still requires us to read tea leaves and guess what she actually thinks. This is absolutely unacceptable in an appointment this important.

      If Miers is a disaster she is a decades long disaster. One that would require two supreme court nominations to overcome. The first nominee would be required to cancel out her bad vote. The second nominee would be required to move the vote count into the positive side.

      Once again, her educational or practice background is not the issue. The fact that her supporters can only come up with inferred evidence (no direct evidence has been given to date) of what she “might” think and how she “may” vote in “most” conditions is a huge warning flag.

      Given the stakes the withdrawal of defeat of the Miers nomination is the only prudent course of action.

    3. incognito Says:

      Funny, I’m taking Con Law now, and it is somewhat disappointing. I’m reading the book the professor is keying off of, so am less dazzled than my classmates. FDR did the same thing is appointing his cronies to the SC.

    4. Lex Says:

      Right, and some of FDR’s crony appointments turned out to be judges that Con Law professors like very much: Black, Douglas. He knew them well and they were reliable. I have no reason to think this lady will be less so, in the opposite direction.

    5. Jonathan Says:

      Lex, I think your second update is most insightful. Bush was always an imperfect candidate from the libertarian/conservative POV. He is not consistently ideological and has been willing to cut unprincipled deals for purely political reasons. I think that many of us have become so accustomed to his generally doing the right thing on national defense that we have forgotten how imperfect he appeared back in ’99.

      In general it is a mistake to become emotionally invested in a public official just because you have high hopes and he appears to share many of your ideals.

    6. Scotus Says:

      Jonathan, I think you are entirely correct about becoming emotionally invested in a public official. The only one in recent memory who, more or less, never caused disillusionment was Reagan.

      When it comes to domestic policy, GWB has always been a pragmatist. Have any of the deals he’s cut been unprincipled? From the conservative viewpoint, the answer is yes. From his own, I would say no, because he’s never had any strong principles (I mean policy principles) on domestic policy, just a general conservative orientation.

      When you think about it (except for the corruption), domestically, W’s governing style has not been unlike Nixon’s. That observation, of course, should not be taken as a compliment.