Against The Grain

Tuesday, October 04, 2005

Harriet Miers: Should we Trust Bush?

For ongoing coverage, I recommend National Review's Bench Memos; RedState.Org; ConfirmThem.com.

Note: This round-up will likely be updated with further posts. Stay tuned.

William Kristol (Weekly Standard) is "Disappointed, Depressed and Demoralized":
I'm disappointed because I expected President Bush to nominate someone with a visible and distinguished constitutionalist track record--someone like Maura Corrigan, Alice Batchelder, Edith Jones, Priscilla Owen, or Janice Rogers Brown--to say nothing of Michael Luttig, Michael McConnell, or Samuel Alito. Harriet Miers has an impressive record as a corporate attorney and Bush administration official. She has no constitutionalist credentials that I know of.
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.
I'm demoralized. What does this say about the next three years of the Bush administration--leaving aside for a moment the future of the Court? Surely this is a pick from weakness. Is the administration more broadly so weak? What are the prospects for a strong Bush second term? What are the prospects for holding solid GOP majorities in Congress in 2006 if conservatives are demoralized? And what elected officials will step forward to begin to lay the groundwork for conservative leadership after Bush?
If you believe the fevered conspiracy-theorizings of the fringe, the Weekly Standard is the mouthpiece of the Straussian Neoconservative Cabal and President Bush is merely a puppet. As I remarked to one friend, look on the bright side: this should be greeted as a sign of hope that Bush has finally liberated himself from the neoconservative spell. ;-)
Executive editor Fred Barnes is not so dour, cautioning:
The president and others at the White House have had long discussions with her about judges. She and Rove were involved in questioning at least five candidates for the court vacancy Roberts has filled. From those talks over the months, I'm told, it became clear to Bush that she had exactly the philosophy of judicial restraint he favors and that she wouldn't "grow" as a justice and turn into a swing vote or a liberal.
Also, I'm told, the president is fully aware of the stakes in this nomination. Roberts's replacement of William Rehnquist as chief justice was simply a conservative replacing a conservative. But Miers would succeed a swing justice. With her, I'm told further, Bush believes he would be altering the ideological makeup of the court, moving it to the right. . . .
why did Bush choose Miers? For him, these nominations are quite personal. He wants to feel comfortable with his nominee, confident his pick will be a conservative now and conservative 20 years from now. Bush picked Roberts after being impressed while interviewing him. His doubts were erased (and there were initial doubts about Roberts). My guess is with Miers his doubts were washed away too.
Mark Shea is less-than-enthused:
Bush has managed to create an almost perfect storm of contempt for his base, coupled with ongoing contempt from people who will always loathe him. This is more than mere bungling. This is active stupidity. Stupidity that may come only once in a generation. Stupidity that works on so many levels. You almost have to admire the sheer elegance of the stupidity. It tempts you to believe in Stupid Design Theory. A magnificent, towering monument to the ability of a single man to do so much wrong with so little effort. . . .
If Miers turns out to be Souter in a dress, I think this will go down in history as the moment when the pro-life movement finally sez "Go to hell" to Republicans who have played them like fiddles, kept them at arms length, made empty promises and lied them onto the reservation for 25 years. For my money, I'm done with the GOP unless, by some miracle, this unqualified crony turns out to be some sort of wonderful SCOTUS judge. But I doubt it.
Vice President Cheney discusses the Miers' nomination with Rush Limbaugh. [radio transcript]. Oct. 3, 2005.
Michelle Malkin provides a good roundup of the nay-sayers, "Utterly Underwhelmed" [Day 1] and "Miers and the Morning After"': "Upon sober reflection, President Bush's nomination of Harriet Miers to the Supreme Court appears...even worse than it did 24 hours ago."
Critics are raising the question of Miers' donation to Al Gore in 1988 (Redstate.Org: "At least back then he was pro-life. But still. This ain't good." Yes, it's true: Miers was originally a Democrat. Junkyard Blog speculates on Miers' donation to Texans for Life and what could have prompted her turn toward the GOP:
That's in 1989, when the big shift was going on in Texas and after she had donated to Democrats. If you're looking for an issue that may have pushed Miers to the GOP, abortion seems to be it. Her donation record from 1992 forward is straight GOP. It was in 1993 that she argued that the ABA allow its members to vote on the group's abortion stance. And she's a member of an evangelical church in Dallas. Dallas area evangelical churches are overwhelmingly pro-life.
Miers wouldn't be the first Democrat to switch sides, or to do so because she was specifically repelled by her former party's subservience to NARAL and a pro-abortion platform.
Harriet Miers and Abortion. In 1990 Texas Bar Association President Darrell Jordan criticized the ABA for adopting a officially pro-choice position, and temporarily succeeded in getting them to change their position. Miers succeeded Jordan as president and resumed his fight against the ABA's support of abortion rights. Fred Vincy (Stone Court has the details).
Read this post, if anything, on the question of Miers' pro-life commitment. Grenfell Hunt (President Aristotle explains Why W. Trusts Harriet Miers: Since 1990, she has made 13-14 political donations, and every single one appears to be to a 100% pro-life candidate. Grenfell provides a useful timeline of Mier's pro-life contributions and political activity -- a definite sign of encouragement.
Seamus @ Mark Shea's: "In the interests of fairness, I would point to the cautiously optimistic view of Ed Whelan, the president of the Ethics and Public Policy Center, a solid Catholic, and a very bright guy (Harvard Law Review, Scalia clerk) for whom I have no end of respect (Initial Thoughts on the Miers Nomination Oct. 3, 2005).
"An Honest Broker" by Douglas W. Kmiec. Washington Post Oct. 4, 2005. (Professor Stephen Bainbridge disagrees, and presents a list of reasons why he objects).
Leonard Leo, president of the Federalist Society, is pleased by the Miers' nomination.
Patrick Ruffini finds Miers to be a good conservative:
"what is known, through official and unofficial channels, paints a picture of a conservative Texas lawyer with rock-solid beliefs on life, strong religious convictions, and a modesty that should allay fears of a renegade Justice determined to remake society through the courts. John Roberts was the silver-tongued, inside-the-Beltway pick for the Court; Miers is the plain spoken red stater."
Joel @ Southern Appeal says it's simply not enough:
As the conservative backlash against the Miers nomination continues to grow the party faithful (company men) keep proclaiming that she is an evangelical Christian who subscribes to conservative positions on issues such as abortion and, therefore, we have nothing to worry about. That silly response to conservative criticism of the Miers nomination absolutely misses the point. We don’t simply want a nominee that broadly holds conservative political opinions or might vote in a particular way on a particular issue. We want someone committed to a METHODOLOGY of interpreting statutes and the Constitution consistent with the ORIGINAL INTENT of those who framed them. We are not simply looking for good results, i.e. cases with decisions we like, but rather judges who consistently use the originalist method of statutory and constitutional interpretation.
There was a time in this country when jurists of all political persuasions adhered to the originalist methodology. It is an unfortunate sign of the times that such a position is now considered an exclusive position of the right. In reality, originalism is a politically neutral approach that seeks to stay true to the intent of duly enacted laws while keeping the personal preferences of the judge, who is not a legislator, out of the equation.
A Westlaw romp through Harriet Miers' record, courtesy of Beldar: "A search on Ms. Miers' name, run in a Westlaw database containing both state and federal court reported decisions from Texas, pulls up 19 separate cases dating back to 1974 in which she's appeared among counsel of record . . ."
Former judge and Supreme Court nominee Robert Bork calls the nomination "a disaster on every level" [transcript of interview w. Tucker Carlson. MSNBC Oct. 7, 2005].
"On the Selection of Harriet Miers for the Supreme Court"; More on the Miers Appointment. I. Shawn McElhinney (Rerum Novarum) responds to a concerned reader and posts an excellent roundup of posts on the Miers nomination, interspersed with his own insightful commentary [further correspondence here].
Like Shawn, I am sympathetic to the criticisms of Bush's decision and believe they are definitely merited; at the same time, I think the best route to take is to see what comes up in the hearings and beyond. While she is not the most qualified of candidates it may very well be that her decisions on the bench will be influenced by the examples of Scalia, Thomas and Roberts. To echo Chris Burgwald:
With many (all?) conservatives, I'm disappointed. There were better candidates, and I wish the President was more willing to go outside his circle of comfort. My desire was for a serious intellectual candidate who could challenge the prevailing philosophies in the legal world. I don't think that's Harriet Miers.
But I do believe the President when he says she shares his judicial philosophy, and I am confident that she will properly judge the cases that come before the Court, even though her opinions may not be high-powered intellectual tomes.
Let's just say I'm not yet inclined to join those rushing to judgement in pronouncing the death-knell on the President, his nominee, or the GOP.