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Miers: Mind the Gap?

Putting together the points about Miers being close to Bush and the complaints about her lack of a public record on the subjects with which the Supreme Court deals, what is striking here is the gap between what Bush knows about her and what the public knows about her. We are beyond reading tea leaves when we are dissecting how many cookies she baked for her church, and what that tells us about the likelihood that she will find displays of the ten commandments constitutional. Insofar as Souter was a "stealth" candidate, it isn't as if George H.W. Bush knew him much better than the rest of us could if we read his opinions. White's views were largely unknown to the public, but he was not particularly intimate with Kennedy. My guess is that the last nominee for whom the gap (between the President's private knowledge and the public's available knowledge) was really large was Abe Fortas — although even there the gap may have been smaller, in that he had taken positions on a number of important public matters.

So, unless we learn significantly more about Miers in the coming weeks — a definite possibility, but by no means a certainty — it seems to me that one's assessment of her jurisprudential views will largely be a function of one's assessment of: A) Bush's success in determining how she will likely vote on issues that are important to him; B) What issues Bush regards as important; and C) Whether one agrees with Bush's position on those issues.

For Bush supporters to support her on these grounds (i.e., her jurisprudential views), it seems to me that one has to have some confidence in all three. That means that you need to have confidence in Bush's ability to judge how she will vote (maybe she's told him in so many words, but probably not; still, there might be enough for him to make educated guesses with some confidence). And you need to be confident that he regards as important what you regard as important. As David Bernstein noted, it may be that Bush is choosing her because he really cares about executive power and the war on terror, and he knows where she'll come out on those issues, but that he isn't prioritizing issues that are central to his political base. For Bush opponents, by contrast, one needs either to have significant doubts about Bush's success in predicting her votes or to believe that what he regards as important is a relatively small universe.

This should not necessarily determine one's support for or opposition to her — perhaps she should be opposed on grounds of cronyism or the unimpressiveness of her background, or perhaps she should be supported on the grounds that the alternatives to her are likely to be worse — but it does seem to be an important calculus in assessing her likely jurisprudential views.

murky (mail) (www):
It's beyond stealth. It's Manchurian Candidate.
10.4.2005 11:29pm
David Maquera (mail) (www):
Bush's nomination of Harriett Miers for the Supreme Court is the equivalent of his father's breaking the "no new taxes" pledge.
10.4.2005 11:43pm
Lab:
People may say all sorts of things to their bosses.
From this to assume that Bush 'knows' her...

This is a lot like that job interview question "where do you see yourself in 5 years". Few people have a sincere answer.
10.5.2005 12:28am
Kyle Radison (mail):
Let me put my cards on the table as I begin. I am a conservative Democrat. I believe in the principles of the Democratic Party, but I am dismayed by its madcap stampede to the far Left. I am disturbed by statements made by liberal fund-raising groups, statements that pay no heed to logic, or common sense, or history, or civility, or human decency, or basic morality, whether founded in a higher Source or a universal humanity, or even pragmatism. I cannot count the number of days I loathe not having changed my registration: every time Harry Reid emerges from his hobbit-hole to drone some idiotic press release; every time Chuck Schumer preens for the cameras and cannot coherently answer a question even though he attended Havard Law (did Biden write his talking points?); every time Nancy Pelosi mouths another election-losing absurdity with a manic smile that makes Michael Jackson's cosmetic surgeon cringe. But I can only take so much. I voted for Bush because he was the best candidate in a race against a man with no ideas, no message, no principles, no convictions, no following, no personality, and no accomplishments. I voted for Bush because I saw the Pentagon burning and smelt its smoke as people were dying that day. I voted for Bush because at heart I believe the law has meaning and that meaning should not be corrupted by the fickleness of ideology or the distortions of incompetence, and Bush had no litmus test and promised to appoint Justices in the mold of Scalia. I voted for Bush because I thought his health care accounts and the tax reform that he hinted at were sound and Kerry had no ideas in opposition, just tired invocations of tired political tropes and weary ideas that had failed. I voted for Bush because Social Security should be revamped and he had the right ideas for the nation. I voted for Bush because he was right about gay marriage; it is a decision for the legislatures. And I weathered the criticism that he took for Iraq, and I thought, Oh, but things will improve. As my friends said that Bush was an evil imp, I countered their every assertion. I still think that a democratic Iraq is a wonderful vision and toppling the Taliban was a grand and great achievement. I still think that Bush with a bullhorn in his hand at Ground Zero was a historic occasion. I was willing to ignore the corruption of Tom Delay, and was willing to put up with the open borders. I rejoiced when he sent John Roberts to the Supreme Court, and was willing to ignore the blatant cronyism exposed by Hurricane Katrina. But I cannot abide the nomination of Harriet Miers. I am a Democrat, and I know that a candidate who pleases Democrats may well be a good consensus candidate that faithfully applies the law and injects compassion into the process of adjudication. In an ideal world, there are Scalias for whom Cass Sunstein can vote. But here is the thing. Antonin Scalia is brilliant. Cass Sunstein is brilliant. Harriet Miers is not. Harriet Miers does not deserve to be on the Supreme Court. That is not my opinion, that is not the opinion of conservative bloggers, that is not elite opinion, that is not an opinion at all: it is a glaring and permanent fact. And it is a moral fact, like the fact that slavery is wrong or the fact that justice is good. It is immoral to confirm Harriet Miers to the Supreme Court. It would be to participate in evil to send such an unqualified candidate to the Supreme Court. She does not have an alternate path, a non-elite path to the Supreme Court, much as Justices Powell, or Brandeis, or Rehnquist did; she has no path, as she does not deserve to be there. Please do not misconstrue my statements as misogynist: many a woman is clearly qualified for the Supreme Court, on both sides of the aisle. Ideology is not my concern here. Competence is. It is immoral to send an incompetent candidate to the Supreme Court. Judicial opinions from the highest court in the land create law. Yes, we are all at least faint-hearted originalists now, even Jack Balkin, but the sad fact is that the Supreme Court, at times, makes law. Even those Justices who claim that they never make law sometimes make law. They may claim that they are dusting off the Framers' principles, or revivifying the Constitution-in-Exile, or restoring integrity to our interpretation of the Constitution, or returning the power to the people, or simply reading the relevant precedents at a high enough level of generality to capture the aspirations of our Founders and apply them to the present context, but the fact of the matter is that they are all making law that the legislature was too stupid, too divided, too partisan, or too non-clairvoyant to lay out in advance. Harriet Miers is not someone we should want making law. Perhaps she was perfectly fine in the City Council in Dallas, and perhaps she has been quite fine crafting policy in the White House, but, let's scrutinize that a bit more. I support the War on Terror, but if Harriet Miers' brilliance has been crafting our policy in the War on Terror, why doesn't it hang together with any coherence? I would love for this country to have a coherent defense of its War on Terror; shouldn't a legal mind worthy of the Supreme Court have the intellectual power cogently to defend it? Just what did she do while she was on the Dallas City Council? If my City Council is any indication, she didn't do very much. This is not Supreme Court material. The President says that she will not legislate from the bench, but the fact is that we all know she will. The reason she is such a horrible candidate, and the reason nominating her is immoral, is that her un-review-able legislation will be incompetently crafted, and it will harm thousands of innocent Americans. It is not just that she has a vote in the Supreme Court if confirmed; it is that she will have the ability to speak with authority on what the law is. As a mere matter of how the Court administers work product, she will have the ability to write decisions that Justices who more or less agree with the outcome must sign onto. And her decisions will be shoddy and improvident. Harry Reid once complained that Clarence Thomas' decisions are embarrassing and poorly written. Harry Reid is an illiterate joke. Clarence Thomas writes some of the clearest and most profound opinions in the history of the Court whilst tackling some of the most complex and thankless subjects. If one wishes to read an embarrassing and poorly-written article, one need only read the excerpt from Harriet Miers' article on the Second Amendment that was posted on www.volokh.com. Her incompetence could not be clearer. Mary Ann Glendon would have been a great choice. Edith Brown Clement, Karen Williams, Edith Jones, Conseula Callihan, Priscilla Owen, Maura Corrigan, Janice Rogers Brown, Larry Thompson, Alberto Gonzalez, Emilio Garza, Miguel Estrada, Samuel Alito, Michael Luttig, Michael McConnell, Mel Martinez, even John Kyl. None of these names were chosen. As a Democrat who voluntarily voted for Bush, I respected that he had his right to select a Scalia. He had his right to select an intellectual process conservative. He even had the right to nominate Stephen Presser or Richard Epstein. But he did not. He nominated Harriet Miers.

Please help STOP Harriet Miers. If you live in a state with Republican Senators, encourage your Senators to Vote NO.
10.5.2005 2:06am
ChrisO (mail):
Kyle, using paragraphs would make your post much more legible.
10.5.2005 3:48am
arbitraryaardvark (mail) (www):
White's views were largely unknown to the public, but he was not particularly intimate with Kennedy.
I'm not clear what constitutes intimacy here. White was a big man on campus football hero of the sort JFK sucked up to. They got closer serving in the pacific. Before the war, they traveled together in Europe. Kennedy was surrounded by a cloud of honorary Kennedys, cronies. I am not able to think of an example of White abusing the friendship by ruling inappropriately. I disagree with many of his opinions, but think they were sincerely his own.
10.5.2005 4:49am
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