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October 04, 2005

In Defense of Miers

Max Sawicky is endorsing Harriet Miers for SCOTUS. I'm inches from following him. Unknown, untested, unqualified though she may be, any situation where Bush is nominating and conservatives are scrutinizing is one where certainty is our vicious enemy. With a conservative majority in the Senate, anyone Bush nominates who's got a hint of definition to them will have to appeal much more to Tom Coburn than Dick Durbin. And despite liberal fantasies of heroic crusades and unstoppable filibusters, we've neither power nor pull here, we detonate the nuclear option and the only ones who blow up will be ourselves.

Think this through for a sec. Let's say, best of all possible worlds, that we filibuster, Frist squeezes the trigger, Reid shuts down the Senate, and public opinion stays with us. Bush, sighing, announces that Miers has withdrawn her name from consideration. Yippee! He's listened to the cries for experience and academic brilliance and will name in her stead the widely-respected legal scholar Michael McConnell.

We gonna take him out too?

Betcha we won't. Because we can't. Bush has an unlimited number of wingnuts to draw from and we have a very limited public tolerance for filibusters to rely on. We can do it once, but probably not twice, and if twice, definitely not thrice. So we're really stuck.

With Miers, her lack of definition, the obvious primacy of her flattery of Bush rather than his knowledge of her ideology, and her past history of surprisingly liberal statements on a variety of important issues makes her the best hope we've got for a second Souter. And even if she is unqualified, unable to punch at the intellectual weight of the Court, that may yet prove a blessing as the mostly-liberal legal community could help her evolve left. As angels on her shoulder, they'll have to vie with Scalia's demonic whispering on the other arm, but if we can't win an argument with Antonin, we deserve to lose anyway.

So am I endorsing her? Nope. But I'm pleased with the pick. At a moment when conservatives could jam our worst fears through the confirmation process, that Bush's nominee is giving them the shakes is far more than I ever hoped for.

October 4, 2005 in The Supreme Court | Permalink

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» The Ends Do Not Justify The Means from Nonplussed
I am more than a little disgusted with a large section of the lefty blogosphere. People like Ezra Klein and Max Sawicky, who ought to know better, are suggesting that liberals should support Harriet Miers simply because the wingnuts don't [Read More]

Tracked on Oct 4, 2005 3:39:00 PM

» The Problem With Miers from Minipundit
Initially I was encouraged by the overwhelmingly negative response to Harriet Miers' nomination from our friends on the right side of the blogosphere. But I'm growing more and more disturbed by the casual way in which the left is backing [Read More]

Tracked on Oct 4, 2005 6:20:05 PM

» The Problem With Miers from Minipundit
Initially I was encouraged by the overwhelmingly negative response to Harriet Miers' nomination from our friends on the right side of the blogosphere. But I'm growing more and more disturbed by the casual way in which the left is backing [Read More]

Tracked on Oct 4, 2005 6:21:02 PM

Comments

"And even if she is unqualified, unable to punch at the intellectual weight of the Court, that may yet prove a blessing as the mostly-liberal legal community could help her evolve left. As angels on her shoulder, they'll have to vie with Scalia's demonic whispering on the other arm, but if we can't win an argument with Antonin, we deserve to lose anyway."

Can you win an argument with Roberts though? One of the things that liberals seemed to fear about him, and I think justly, is that if he was against liberal policies he would be a very convincing voice against them amoung the other Justices. Miers obviously likes Roberts already, she helped pick him, and if she doesn't have strong beliefs on her own I can see her being guided by him.

Posted by: Dave Justus | Oct 4, 2005 1:02:49 PM

I have already endorsed her. I guess it depends in part on what cases, or sorts of cases, are likely to come before her. Your mileage may vary, being a normal sane person.

Myself, being paranoid crazy, envision her appointment being directed toward stuff like GWB's 3rd, 4th, and 5th term, or the suspension of elections under emergency powers, stuff like that. I still support her nomination, in the belief that only the rapid emergence of a full blown military dictatorship will energize the left and awaken the moderates in time to survive the meltdown of the global economic order and polar icecaps.

Posted by: bob mcmanus | Oct 4, 2005 1:05:47 PM

Dave: it's a good point. Bottom line on it is that if Bush were to pick someone with a set philosophy, they'd already be deeply conservative. If there's a chance of persuasion, it's better than the certainty of wingnuttery.

Posted by: Ezra | Oct 4, 2005 1:09:35 PM

I don't understand endorsing Miers at all. There's clearly a range of options in between a filibuster and a full-throated endorsement.

Posted by: clark | Oct 4, 2005 1:12:55 PM

There may be many bad things about Miers beyond her conservatism. I'd rather a brilliant conservative than a mediocre crony. I'm not sure Meirs is either, but I really have no desire to endorse a trend toward of lack of qualifications and interest in governing towards loyalty and good networking as the prerequisites for appointments. I feel this point is particularly good if you only think about what an endorsement means as a signal and less as actually a chance to influence the debate.

Anyway, the elephant in the room really seems to be Reid's conversation with Bush that was a full-throttled endorsement of Meirs, that y'all mentioned on TAPPED. Did Reid's prolife stance (and Kos-like desire to get abortion off the table) move him to push for a nominee that's acceptable on a broad range of Democratic measures, but will overturn RvW. If that is so... then blah, I don't disagree, but I admit I'd have to take back every nasty thing I've said about NARAL in the past few months.

Posted by: Tony Vila | Oct 4, 2005 1:24:07 PM

I think Ezra is correct on the politics of opposition to Mier, and probably right on the matter of what you don't know is likely better than what you do know about alternatives.

She IS a conservative Texas corporate lawyer and will probably rule in this direction, like Roberts (except for her being from Texas. She isn't likely to carry a full charge of wingnut explosives in her handbag.

However, it really bothers me that the country is put in the position of 'trusting George' in carrying out his executive fantasies. I'm even more bothered by putting more Bush cronies in office - I share McManus' fears of possible bypassing of the Constitution to sustain him in office with crony support either before or after 2008. And who knows what kind of major league hanky-panky growing out of electoral fraud in 2008 if George chooses to yield to Jeb.

But, as Ezra and Bob McM. both say: it could be far worse with another choice.

Hellova way to run a constitutinal democratic republic, isn't it?

Posted by: JimPortlandOR | Oct 4, 2005 1:24:27 PM

The thought that Bush will be in office after Jan. 2009 is pure paranoia. It is not going to happen.

Tony has an interesting point though, if Miers is purely a crony, how do you explain Reid's shortlisting of her? That will be a hard one for Democrats to square.

My feeling is that after the initial outrage, probably more over not getting an apocalyptic battle on the Senate floor than on the merits of Miers, conservatives are going more or less be behind her and she will be appointed easily.

Since Bush did 'listen to Democrats' on this one, it will be pretty hard for them to oppose her without cutting their own throats, absent a stunning revelation which I doubt will happen.

Posted by: Dave Justus | Oct 4, 2005 1:59:29 PM

Ok, Ezra, this is ridiculous... just because the right wing doesn't like her doesn't mean we should.

As Tony said above:
"I'd rather a brilliant conservative than a mediocre crony."

Yes, it could ALWAYS be worse. Bush could select Dobson or someone just as ridiculous. That's not a reason to be ok with this selection, much less ENDORSE this selection.

Posted by: Tito | Oct 4, 2005 2:02:41 PM

Am I pleased that he chose Miers? Abso-freaking-lutely, for much of the reasons Ezra cites - watching conservatives squirm is almost entirely worth the pain to follow.

Endorse her? Absolutely not. Get real. She's totally unqualified, dozens of other deeply conservative women are better suited, never mind men, never mind a vast swath of moderate and liberal judges probably more so. We've moved from "ideologically at issue" to simply unqualified and here are liberals not blinking. Gee whiz. While it's worth waiting for conservative Senators to take the ball, once they do, jump onb that bandwagon for goodness' sake. She's a terrible nominee and she'll probably make a lousy Justice.

Posted by: weboy | Oct 4, 2005 2:08:52 PM

And even if she is unqualified, unable to punch at the intellectual weight of the Court, that may yet prove a blessing as the mostly-liberal legal community could help her evolve left.

First of all, the legal community isn't that liberal. Social liberal sure, which is why Scalia makes all those cracks about how Larwence is enacting the social preferences of the lawyer class. He's right. But they're not necesarrily a bunch of redistributionists.

Plus, her clerks, like Anthony Kennedy's clerks, will likely all be vetted by the Federalist Society, ensuring a rightward tilt of the people she speaks with most on a day to day basis.

So, no on that front.

The only hope is that the liberal justices will make a concerted effort at courting her vote, or that Scalia is such a jackass that she stops joining his vitriolic opinions (which is what happens to O'Connor).

But really, it doesn't matter all that much; Roe ain't going no where, and we'll eventually win gay rights in the legislature anyway. Miers isn't really going to put a stop to that sort of thing.

I vote for whatever strategy extracts the most political pain without getting someone like Luttig or McConnell up there. I think it may involve sitting back while the conservative movement implodes, hoping that a lot of activists sit on their hands in 2006.

Posted by: Nicholas Beaudrot | Oct 4, 2005 2:11:47 PM

"The thought that Bush will be in office after Jan. 2009 is pure paranoia. It is not going to happen."

Dollar devalues, oil skyrockets we have -4.0 GDP for all of 2007. Unemployment hits 10 %, Prime also hits 10%, bankruptcy and foreclosures increase until we ten million homeless middle-class folk marching on Washington. Libby squeals, admits to major felonies on the part of both Bush & Cheney, including the pre-authorization of torture and the deliberate funneling of reconstruction funds to Swiss bank accounts. All prospective Republican candidates swear to hand any requested individuals and evidence to the Hague and ICC. In Jan 2008 we have five suitcase nukes go off in Midwestern cities.

Ya know the assumption that the next three years will be fairly uneventful and predictable is not entirely warranted.

Posted by: bob mcmanus | Oct 4, 2005 2:33:08 PM

Thanks for making my case Bob.

Posted by: Dave Justus | Oct 4, 2005 2:35:25 PM

You know, I might share in concerns of a Bush 3rd, 4th, 5th term etc., but for one reason: I don't think Bush wants to be President anymore. I think he's bored. I think once he got re-elected he had accomplished all he wanted, which was to one-up Daddy (both in terms of re-election and ousting Saddam). As far as he's concerned, he's done. I think he's annoyed that he has to do these pesky press conferences, and travel around the country stumping for an agenda he has no interest in. The two Supreme Court appointments are just icing on the cake, and after appointing someone eminently qualified he decided to do what he wants and start appointing friends. Andrew Card will soon be SecTreas and Greenspan's turn is up.

Bush will have consolidated control with close advisors in all the top executive departments and an ear on the court. Then he can sit back and take two month vacations on the farm.

Posted by: Ugh | Oct 4, 2005 2:40:00 PM

Supporting a nominee who might vote your way even though she is otherwise unqualified is about as unprincipled a position as I can imagine. No thanks.

That would be true even if you knew for a certainty that Miers would vote left. And that is FAR from certain.

Posted by: Nonplussed | Oct 4, 2005 3:13:39 PM

Ezra et al. -
You guys are dreaming if you think Miers will show any kind of independence from Chimp/Rove/Scalia and the rest of the cabal. Her bio screams zombie-like loyalty as well as sycophancy; she's known Rove and Chimp for years, and will basically do what they want.

She is NOT a Lewis Powell, John Stevens, David Souter, nor any of the other "conservatives" who turnaround once on SCOTUS. She is Katherine Harris without the makeover, or sock-puppet Clarence Thomas without the paper trail.

Who cares if the wingnuts are temporarily upset? They were allegedly unhappy with Roberts at one point, and we saw how much that mattered in the end.

Oh, and the idea of filibustering an additional candidate or two? So what? At least the Dems would go down swinging (if the nucular option even succeeds), rather than doing a Vichy. Sometimes being defeated in battle is better than surrendering. If you fight the battle, at least you have the chance of winning. Of course, if these imbeciles keep on "keeping their powder dry", we'll never find out.

Posted by: SFAW | Oct 4, 2005 3:14:15 PM

And another thing... I am no conservative, far from it, but I think the right should get some credit for being somewhat principled in their apoplexy. The overwhelming criticism of Miers is over her lack of qualifications and Bush's blatent cronyism. The idea that she isn't Robert Bork is decidedly secondary.

Posted by: Nonplussed | Oct 4, 2005 3:16:05 PM

Ugh -
I think his petulance is not a result of boredom, but of immaturity and arrogance (not necessarily in that order). His pattern has been to get peevish whenever someone dares to question him on anything.

Don't think he'd want more than two terms? Think again - he'd take as many as he could get, especially if there's more money and power to be both used and doled out. Of course, if he's one of those End-Timesers, then maybe we won't have to worry about the 2008 elections.

Posted by: SFAW | Oct 4, 2005 3:20:28 PM

SFAW -

I guess I don't necessarily disagree. I have described him as a spoiled child elsewhere, which certainly fits with immaturity and arrogance.

I just don't see him wanting to be President any more. Whether it's from boredom, immaturity or arrogance, I think he'd rather just throw up his hands and say "screw you guys, I'm going home." [/cartman]

Posted by: Ugh | Oct 4, 2005 3:31:03 PM

As a crony raised in the ranks of the executive branch, Miers is going to be solid for Bush on protecting executive power. This is why Bush wants her in there: to rubber-stamp his policies on terror, torture, and internment. We're not going to lose abortion or gay rights; we've already won those whether the country's ready to admit it or not. But while we still obsess over the same cultural backlash issues, it's the reckless expansion of executive power and deference to the office of the president that's going to screw us in the end.

Posted by: Iron Lungfish | Oct 4, 2005 3:44:19 PM

"And another thing... I am no conservative, far from it, but I think the right should get some credit for being somewhat principled in their apoplexy. The overwhelming criticism of Miers is over her lack of qualifications and Bush's blatent cronyism. The idea that she isn't Robert Bork is decidedly secondary."

Posted by: Nonplussed


Actually, what I've seen focuses at least as much on her not being Scalia II: The Reckoning. Go to Redstate.org for a start.

Posted by: Barry | Oct 4, 2005 4:02:56 PM

Ezra, your analysis overlooks the possibility that Miers might be able to be defeated without a filibuster.

Suppose conservative anti-Miers reaction is so strong that eight Republican Senators (up for re-election?) won't drink the Kool-Aid. Suppose it was thirty.

What do you recommend that Senate Democrats do then?

Posted by: Kman | Oct 4, 2005 4:13:24 PM

"What do you recommend that Senate Democrats do then?"

Pretending I am a Senator that does the usual incomprehensible Senator calculating colation stuff, Democrats should provide the winning margin, to A) get as acceptable candidate as possible on the court, B) increase credibility as bipartisan for any future opening that might occur in Bush's term. It is utterly transparent, but that never bothers them.

Oh, I forgot C) Democratic Senators make a point of screwing and angering their base.

Posted by: bob mcmanus | Oct 4, 2005 6:02:50 PM

No offense, Ezra, but in my mind this post epitomizes the worst instincts of the democratic party and the liberal movement. You're basically arguing that you're considering supporting Miss Miers not because you think she would do a good job, not because you think that she's qualified, but because you think that price you would have to pay for not supporting her is the nomination of a better qualified judge who is less likely to interpret the law the way you'd like to see it interpreted. It's cowardly, in that it essentially argues that we cannot fight today because we might not be able to win a fight tomorrow. And, to the extent that it suggests that a bad judge who agrees with us is a better judge to have than a good judge who disagrees, it's a betrayal of the public interest.

I do not yet know if I think Miss Miers will be a good judge. I want a rigorous confirmation process to tell me that. But I do know that deciding whether or not to support her based upon the political merits, rather than based upon her qualifications, is something I would prefer that liberals and conservatives *both* avoid doing.

Posted by: aphrael | Oct 4, 2005 6:41:10 PM

She's no liberal-in-waiting. I don't think her once-upon-a-time contributions to Democrats means anything.

She's a born again Christian, and that has a specific meaning in this day and age. And she's a *Texan* born-again, which has an even darker meaning in this day and age: she might be a Dominionist.

If the Senate was going to do its job (which it won't), it would determine whether she is a Dominionist, because that ought to be an automatic disqualification for serving on the SCOTUS.

She's a Black Box nominee. She's going to be a Black Box SCOTUS Justice. She's going to be there to protect Bush. Don't you kind of wonder what he thinks he'll need protection from?

If the Senate was going to do its job (which it won't), it would ask whether she'll recuse herself in cases involving the Administration, because if FItzgerald indicts Libby or Rove or Cheney or Bush himself, it's a sure bet the Admin will take the case all the way to the SCOTUS.

If the Senate was going to do its job (which it won't), it would ask her about the torture memo and the military tribunals: how much work she did on those issues, and what her views are on Executive Power.

Bush has just mentioned that he'd sure like the authority to use the military to enforce a quarantine if there's a lethal flu epidemic - kind of an interesting thing to say, since we already know the Bush Admin is incapable or unwilling to take the necessary non-military steps to prevent or ameliorate a flu epidemic. Doesn't that trial balloon strike you as just the tiniest bit suspicious? Do you want him to have that authority? Do you think for one instant he won't abuse that authority? Do you want his very own personal advocate to be on the Court when *that* issue appears before it?

I try not to be paranoid about Bush. But he makes not being paranoid pretty damned difficult.

Posted by: CaseyL | Oct 4, 2005 9:18:23 PM

If the Senate was going to do its job (which it won't), it would ask her about the torture memo and the military tribunals: how much work she did on those issues, and what her views are on Executive Power.

To that point, from The Hill via slingshot.org:

"Ken Mehlman [chairman of the Republican National Committee] yesterday unveiled a politically powerful argument linking Bush’s nomination to the war on terrorism. He said that as a former White House counsel Miers would know the importance of not letting the courts or the legislative branch “micromanage” the war on terrorism."

Posted by: tatere | Oct 5, 2005 12:26:19 AM

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