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A Stunning Column By George Will:
The blogosphere was abuzz last night by news of this hard-hitting column by George Will. I am tempted to post the whole thing but here is an excerpt:
It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's "argument" for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections.

Furthermore, there is no reason to believe that Miers's nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists.

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked — to ensure a considered response from him, he had been told in advance that he would be asked — whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, "I agree." Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, "I do."

It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.

The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent — a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.
The White House should be getting very nervous this morning. But the real questions are: How nervous are Republican senators and are they capable of handling the responsibility of "advise and consent"? Will the Democrat senators accept a mediocre (or worse) nominee who they imagine will be more pliable in the future or will they actually oppose a nominee based on her lack of qualifications to be in the Supreme Court rather than on how she will vote once there?

Update: Well, we now have the answer to the question about Republican senators from this WSJ column by John Cornyn.

alkali (mail) (www):
The chief responsibilities of Supreme Court justices are (1) to write cryptic concurrences in constitutional cases that provide no guidance whatsoever in other factual situations and leave the law in eternal flux; (2) to deny cert. in pressing tax, securities, bankruptcy, ERISA, and environmental cases as long as possible, even where there are circuit splits; and (3) to f__k up the tax, securities, bankruptcy, ERISA, and environmental cases where cert. is inadvertently granted. I think Miers is amply capable of handling those tasks.
10.5.2005 9:51am
jgshapiro (mail):
Has a Senate controlled by the same party as the president ever rejected a Supreme Court nominee? Based on political realities, it would seem that the time for Republicans to object to Miers was before her nomination, and that time is now past.

I suppose you could put together an ad-hoc bi-partisan majority of conservative Republicans upset that she is not Owens or Brown, and Democrats looking for something to bruise Bush with, and defeat her nomination with those votes -- but that is a stretch. If her nomination gets defeated, Bush is weakened further. Would he then be able to nominate Owens or Brown and get them confirmed? Knowing the answer is almost certainly no, why would the conservatives join this ad-hoc majority?
10.5.2005 9:52am
Anonymous Coward:
Cornyn is as much a Bush crony as Miers, except with better qualifications.

We need to see what people like Jeff Sessions (very conservative) and John McCain (wants to be president) do.
10.5.2005 9:52am
Adam (www):
Or Sam Brownback, a 2008 hopeful who's on Judiciary.
10.5.2005 10:21am
Anonymous Coward:
Sessions does too.

There is a real possibility of ending this travesty in the Judiciary Committee.
10.5.2005 10:34am
Dan Levine (mail):
Cornyn's comments are indefensible. What the hell does it matter that she "understands real people," or in the President's words, is a woman of "character" when "strict constructionists"--a term wholly abandoned by contemporary scholarship--are supposed to apply the law "as written?"

My concern is that we're in a prisoners' dilemma situation. Neither the Republicans nor the Democrats want to be the only side to oppose her--even though both might not want her confirmed.
10.5.2005 10:42am
Trapper John (mail):
Bush hit a home run. Think about it.

If all 2008 wannabes (such as Hillary and Kerry) vote against HM, then their candidacy is doomed. (They would vote against a scholar, JR, and a trail-blazer for women in the South [TX], HM. GOP ticket will have a field day-voters will be engaged. Game over.)

If all 2008 wannabes (except Russell F.) vote for HM, then what does it show? That they voted for an ordinary woman but against a scholar JR.

Bush got it both-ways. Rove is a master. GOP rules...
10.5.2005 10:43am
Amy Zon:
The thrust of Cornyn's argument seems to be that her biggest asset is being a trial lawyer. If that's her greatest qualification, then I think we're in trouble.

If Cornyn is truly right, then pretty much any federal district judge would seem like a better choice then Miers. They would have the requisite closeness to the people and be on a level so as to see the effects of the thunderbolts tossed down from the Supremes. But they would also have experience that Miers does not - drafting opinions and considering how things fit into the larger scheme of things.
10.5.2005 10:46am
Anonymous Coward:
Trapper John-

Hooray. Some Republican wins in 2008, and the Supreme Court stays screwed up for how many decades?

Great trade, that.
10.5.2005 10:46am
Per Son:
Trapper John:

You think most Americans will care about Supreme Court votes in three years. Not voting for HM will not hurt any Democrats. Also, it can help some GOP'ers.

I mean, Blacks really went to the GOP in droves after all those votes against Thomas.
10.5.2005 10:52am
JoeSlater (mail):
Trapper John:

Opposing HM will hurt Hillary or some other Dem. in 2008? Because that will infuriate all the members of that great groundswell from the grassroots we've seen favoring HM?
10.5.2005 10:55am
SimonD (www):
Bush hit a home run. Think about it. If all 2008 wannabes (such as Hillary and Kerry) vote against HM, then their candidacy is doomed.
Actually, I'm increasingly starting to think that "[i]f all 2008 wannabes vote against HM", they'll be on the winning side of an up-or-down vote - assuming the nominatioon ever reaches the floor. I think basically every Republican who is dissatisfied with the nominee needs to take five minutes away from the blogosphere to write to each and every Republican on the Senate judiciary committee.
10.5.2005 10:55am
Mike in Colorado (mail):
jgshapiro is 100% right. If you're a conservative you need to grow up. Either support the President's nomination or simply be quiet. This isn't last week when advocacy of anyone other than Miers might have had a point. Work harder next time for YOUR choice, but a defeat of Miers benefits no one except your opponents. At this point in time YOUR choice for this opening really doesn't matter. You know, sometimes real smart people can be real dumb.
10.5.2005 10:58am
Per Son:
Heck, if this goes too long. The abortion decision will be decided with O'Connor on the Court. In case you did not know, I think that is a good thing.
10.5.2005 11:06am
Lawbot2000:
I am going to puke if Miers is confirmed. This is the best thing to happen to liberals since David Souter.

"Either support the President's nomination or simply be quiet."

You're a moron. Since when has anyone in this country been forced to support a politician's choice? No one should shut up and accept this nomination until she is actually confirmed. Until then, we need to express as much outrage as possible and hope that it spreads and that the Senate gets the message.

A defeat of Miers right now would be wonderful if Bush then nominated Luttig or Karen Williams or someone other than Alberto Gonzales.
10.5.2005 11:10am
David Hecht (mail):
I don't want to come across as making the "Hruska defense" (which my position could easily be distorted into), but I do think that some commentators miss the larger point.

In "Brave New World", there is a brief (almost throwaway) reference to the "Island of the Alphas" (my term, can't remember what they called it): an island that--as an experiment--was populated entirely by Alphas, with none of the lower castes.

It was a disaster.

The problem with populating the Court with nothing but towering intellects is exactly the same as the problem would have been with elevating Scalia to Chief: egos. Scalia has spent most of his efforts (*all* of them, in his dissents) zinging his adversaries and sneering at the foolishness of their reasoning. Does anyone seriously think that--had he been elevated--he'd be the uniter and consensus-builder that's needed right now? Anything's possible, of course: but I sure know how *I'd* react, were I one of his erstwhile targets.

Similarly, if the Court were composed of nothing but brilliant intellectuals, one might see an even greater fragmenting of legal thought and doctrine than is currently in effect--assuming that's possible. To be a Supreme is to be subject to substantial incentives to self-elevation under the most benign of circumstances: I think it's very possible that adding one of these towering intellectuals that people are touting right now would be an invitation to a Court divided, not along liberal-conservative lines, but along conservative-conservative lines, with the dwindling liberal bloc holding the swing votes. One day, we'd be affirming a pure libertarian doctrine: the next, we'd be deferring to legislative authority. The problem is--as may be observed in the last term--the libertarian affirmation would come in the guise of procedural rights for terrorists, while the deference to legislative authority would come in the guise of banning medical marijuana. Oh: and the "New Federalism" would come in the guise of allowing states and localities to use eminent domain /ad libendum/.

I think that GWB is laying down a marker here: if you want to be considered for the Court in this presidency, check your ego at the door. I wonder how many of the illustrious names that are regularly bandied about will get the point?
10.5.2005 11:11am
Anonymous Coward:
David Hecht-

You're forgetting one aspect of Alpha Island: the society had still kept up all the Alpha conditioning on them, where they weren't supposed to do any work, because that was for Gammas, and Deltas, and whatnot.

At the Supreme Court, the work is the Alpha's work. There isn't the legal equivalent of Delta work like dealing with motions in limine in some workers comp case.
10.5.2005 11:18am
Karl:
Is it just me or does the Cornyn defense of Miers smack of the judicial realism that Republicans and conservatives have been railing against since the Warren Court?
Cornyn says the Court needs the voice of an advocate in touch with "real Americans". For what purpose? Supposedly to get more socially (read: conservative) results, not out of principle. This is the same argument of the Dems barking for liberal results. This has nothing to do with having the constructionist principles that have been repeatedly lauded, since there is no evidence Miers actually holds them. Cornyn is basically saying "Miers is going to vote the way we want because she is one of us, so don't worry about how she gets there."
To me, that argument is ridiculous. The Repubs have sold out the conservative legal movement here by simply saying that conservative theories of judging aren't as important as getting conservative results.
10.5.2005 11:27am
Al Maviva (mail) (www):
It's great to have somebody with real world experience on the court, but I'm not sure that Ms. Miers is minimally qualified to fill the position. The thing about if you are conservative, you should just shut up and support the President on this, is really funny.

The whole point of legal conservatism is reviving the philosophy that the text, the words of the legislature and the framers, the actual laws, really mean something tangible; and that courts should be restrained in their interpretations of the law, and not just make stuff up as they go along. Policy struggles in our system are supposed to be reserved to the people or their elected representatives, not to elderly lawyers. The important thing in picking appellate judges is finding people who understand the law, who are smart enough to avoid doing inadvertant harm, and who will respect the integrity of the law above their own desire to see specific policy results. I'm starting to become confident that Ms. Miers would render a lot of *results* I would like. I'm also starting to become confident that she would do so via Blackmun-esque arguements rife with intellectual dishonesty.

It profits us nothing if we "capture" the Supreme Court with activist conservatives. Sure, we will get the results we want, until we start losing elections. Then it will go in the other direction, and we won't have a principled arguement against it. It isn't just winning today's policy struggles that matters, rather the larger goal is preserving and renewing the system that has served us well for so long. Pardon the length, but an exchange from "A Man for All Seasons" is remarkably apt here:

More: There is no law against that.

Roper: There is! God's law!

More: Then God can arrest him.

Roper: Sophistication upon sophistication.

More: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal.

Roper: Then you set man's law above God's!

More: No, far below; but let me draw your attention to a fact - I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forrester. I doubt if there's a man alive who could follow me there, thank God....

Alice: While you talk, he's gone!

More: And go he should, if he was the Devil himself, until he broke the law!

Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
10.5.2005 11:29am
Anderson (mail) (www):
Work harder next time for YOUR choice, but a defeat of Miers benefits no one except your opponents.

Mike in CO here displays the same kind of ruthless cynicism that characterizes Bush himself.

The idea that a defeat of Miers might benefit the Supreme Court, and the rule of law in America, apparently isn't even on the table. It's all politics.

Disraeli: "A politician looks to the next election; a statesman, to the next generation." That's what a real conservative said. Any of 'em left in the Republican Party?
10.5.2005 11:30am
Cornellian (mail):
Good Lord Cornyn, must you be so shameless? Ugh, it's Roman Hruska all over again. Show some backbone - she's not qualified and you know it.

When the president is announcing your nomination to the Supreme Court and running through your list of accomplishments, the fact that he's reduced to citing your involvement with Meals on Wheels ought to have set off the alarm bells that something's wrong with this nomination.
10.5.2005 11:38am
Charles Canter (mail):
It seems there are two issues largely missing from the Miers discussions so far.

First, many complaints (mostly by conservatives) about Miers boil down to "We don't know her judicial philosophy." Unless a nominee has been a law professor writing articles or judge writing opinions for many years, how would a person make known their philosophy prior to nomination? Unless one thinks that judicial experience or law review publication are prerequisites for the Supreme Court, these criticisms seem irrelevant or at best premature. The President addressed this yesterday when he said that Miers would be meeting with Senators and would be testifying before the Judiciary Committee. This is when the public, and more importantly the Senate, will hopefully come to know and understand Ms. Meirs's judicial philosophy. If a person must be a well-known nominee, what is the point of the confirmation process? It seems to me that nomination of Supreme Court justices is just like nomination of cabinet positions in that it is solely within the President's discretion. It is the responsibility of the Senate to scrutinize the President's nominations. (And as has been noted earlier, what would have been said of the nominations of Byron White or Louis Powell?)

The second issue is that the President appears to have nominated Miers (and to some extent Roberts), BECAUSE they are philosophically unknown quanities. What does it mean for the judiciary in general, and conservatives in particular, when superbly qualified judges and atttorneys such as Michael Luttig, Harvie Wilkerson, and Michael McConnell cannot be nominated by a Republican President with a Republican Senate? It seems the lesson for conservatives is to keep their conservatism quiet. If a conservative has judical aspirations, he should not make his conservatism public, but should devote his energies to advancing his more political friends in office so that these friends can then appoint the conservatives to the bench. There is also the danger of the same result on the liberal side if Republicans, when they are in the minority, decide to treat the nominees of a Democratic President the way Bush nominees have been treated. The effect is to institutionalize the sort of cronyism that Mr. Barnett decried in his WSJ essay.
10.5.2005 11:46am
Per Son:
What does real world credentials mean. In a way, it apparently means "regular Joe or Jane" credentials. Well, I for one do not want a regular Joe or Jane on the Court. Look at Roberts, does he not have "real world" experience? While I disagree with their views, I cannot possibly argue that Olson, Estrada, or Mahoney do not have "real world" experience.

It is as if really great appellate and constitutional litigators do not have real world experience.

One last thing, what the hell does being a trial lawyer have to do with being a Justice. Is because of all of the de novo review that happens, because the Court cares so much about facts?

Yeesh.
10.5.2005 11:48am
Richard Bellamy (mail):
I think anyone who thinks this comment by George Will is "stunning" isn't a close follower of George Will. It was clear by the tail end of the first term that Will thought Bush was an incompetent moron, yet he continued to support him against any potential Democratic challenger. Why?

Because in Will's view, the President is largely powerless regarding the things most people care about the President for. The President doesn't control the economy or taxes or much else. Will sees that as all the responsibility of Congress, who is perfectly free to act upon or ignore the President.

All the President does that matters -- in Will's view -- is appoint lots of people who actually DO do stuff. People like the Secretary of State or the head of the EPA or the Supreme Court.

So, while Will has lots of personal distaste for Bush, he would always be the preferable candidate because he will nominate conservatives to do the "real" work. What we are seeing is George Will slowly coming to the realization that -- while Bush is not doing a bad job on things that he is often blamed for -- he is actually doing a really bad job on the one thing that George Will views as his actual job.
10.5.2005 11:49am
SimonD (www):
A defeat of Miers right now would be wonderful if Bush then nominated Luttig or Karen Williams or someone other than Alberto Gonzales.
Right, and if Miers can be defeated, so could Soutero, and Bush would know it. The reality, of course, is that Bush would probably try to use a recess appointment to put Miers on the court - right now, I would rather see O'Connor withdraw her retirement than see that situation.

First, many complaints (mostly by conservatives) about Miers boil down to "We don't know her judicial philosophy." Unless a nominee has been a law professor writing articles or judge writing opinions for many years, how would a person make known their philosophy prior to nomination? Unless one thinks that judicial experience or law review publication are prerequisites for the Supreme Court...
I have no particular problem with that proposition.
10.5.2005 12:12pm
TC (mail):

So, while Will has lots of personal distaste for Bush, he would always be the preferable candidate because he will nominate conservatives to do the "real" work. What we are seeing is George Will slowly coming to the realization that -- while Bush is not doing a bad job on things that he is often blamed for -- he is actually doing a really bad job on the one thing that George Will views as his actual job


Just thought this was worth reading again.
10.5.2005 12:15pm
Kazinski:
I don't get it, why isn't she qualified? It is only in the last 20-30 years when it's been standard to only nominate academics or appeals court judges, and I don't see that that has produced a Supreme Court of giants. When it comes to judicial or academic credentials Miers has no more or no less experience than Rehnquist, Earl Warren, Thurgood Marshal, Byron White or a host of others. She has a similar background as Potter Stewart, Clarence Thomas had only one year of judicial experience when he was elevated to the Supreme Court. Compare Miers resume to O'Connor's pre-court resume and with the exception of the law school, it is far superior. Running a 400 person law firm isn't small potatoes, and becoming President of the State Bar Association speaks well of her people skills.

It seems to me that all the carping is because both sides want an extensive paper trail for either reasurance or ammunition. The President knows this nominee a lot better than he knows John Roberts, and probably has more confidence in her.
10.5.2005 12:31pm
Bisch:
Hecht - the way I read you post is that HM is an asset because she may be open-minded (dumb or weak) enough to be a compromiser (get pushed around by the Alphas). The SCOTUS is not the biodome. They're not a community living in harmony. I want people that are right and unforgiving about it. In that way I like JPS and RBG because they're not accept something less than what they think is right. They just happen to be wrong.
10.5.2005 12:40pm
SimonD (www):
Kazinski: she isn't qualified because she has not, so far as anyone can tell, had any kind of job in which she has considered constitutional questions or administrative law questions. She has never held a position in which she can have developed a judicial philosophy, nor written anything to demonstrate such a philosophy. I suppose it's possible that she has - I have a fairly solid judicial philosophy, despite the lack of a J.D. or a Judgeship, but no one is talking about appointing me to the Supreme Court, which is probably very wise! But what's important is,as you put it:
It seems to me that all the carping is because both sides want an extensive paper trail for either reasurance or ammunition.
And that's not a bad thing, in my view.

It sickened me to watch the President's press conference on The News Hour last night - he's asked if he's ever talked to Miers about abortion, and here is a GOLDEN opportunity to reframe the issue; to make the point that the questions surrounding Roe's legitimacy have nothing to do with whether abortion continues to be legal, and that the question isn't whether the call is right or wrong, but who gets to make the call. But instead, he offers unconvincing blather.
10.5.2005 12:49pm
Per Son:
Look at the "straight to Scotus" lawyers. They were national constitutional and scotus heavyweights. Not just good attorneys. A Solictor General is different than say, a state bar president.
10.5.2005 12:51pm
Anderson (mail) (www):
I would also disagree with Kazinski that O'Connor's resume was inferior. Besides the Stanford 3d-place finish, there's the legislative and judicial experience. Indeed, one could almost wish that Bush had nominated a senator, until one thinks who that might have been.
10.5.2005 12:54pm
Richard Bellamy (mail):

he's asked if he's ever talked to Miers about abortion, and here is a GOLDEN opportunity to reframe the issue; to make the point that the questions surrounding Roe's legitimacy have nothing to do with whether abortion continues to be legal, and that the question isn't whether the call is right or wrong, but who gets to make the call. But instead, he offers unconvincing blather.


Also, I'm not meaning to imply at all that Bush is "lying" about this, but -- as a general rule -- when a politician (of either party) is asked "Did you ever X" and the Answer is "I do not recall doing so," do you mentally substitute "Yes. But I don't want to either admit it or blatantly lie about it"?

I do.
10.5.2005 12:54pm
Gordon (mail):
George Will's column is nothing but a pissy fit masquerading as commentary. He seems to have adopted the intellectual snobbery evidenced by the legal right in its instant reaction to Ms. Miers.
10.5.2005 12:59pm
SimonD (www):
Richard - yes, and in this case, it's transparently absurd. If he didn't ask her about it, he shouldn't have nominated her. If he did ask her about it, he's lying completely needlessly. I have great faith in the intelligence of the American people; this silly shadow puppetry about Roe and abotion is no substitute for an honest exposition of what the issue with Roe is really about: what does the constitution mean, how does it change, and do the people rule or the judges.
10.5.2005 1:01pm
Thorley Winston (mail) (www):
Similarly, if the Court were composed of nothing but brilliant intellectuals, one might see an even greater fragmenting of legal thought and doctrine than is currently in effect--assuming that's possible. To be a Supreme is to be subject to substantial incentives to self-elevation under the most benign of circumstances: I think it's very possible that adding one of these towering intellectuals that people are touting right now would be an invitation to a Court divided, not along liberal-conservative lines, but along conservative-conservative lines, with the dwindling liberal bloc holding the swing votes. One day, we'd be affirming a pure libertarian doctrine: the next, we'd be deferring to legislative authority. The problem is--as may be observed in the last term--the libertarian affirmation would come in the guise of procedural rights for terrorists, while the deference to legislative authority would come in the guise of banning medical marijuana. Oh: and the "New Federalism" would come in the guise of allowing states and localities to use eminent domain /ad libendum/.

I think that GWB is laying down a marker here: if you want to be considered for the Court in this presidency, check your ego at the door. I wonder how many of the illustrious names that are regularly bandied about will get the point?


Good point, last night while listening to Hugh Hewitt interview various legal bloggers and pundits who were both pro and con the Miers nominee, one of his guests made the point that that because of all of concurrences, dissents, partial-concurrences, and partial-dissents from the SCOTUS we have "nine justices with ten opinions."

The President may have chosen his Roberts and Miers in the hopes that someone a bit less egotistical might lead to fewer penumbras and ambiguous rulings that leave those of us who aren't "Alphas" wondering what the hell the law really is.
10.5.2005 1:02pm
Anderson (mail) (www):
I am trying to imagine Clinton's having nominated such a nonentity, and the above supporters of Miers' nomination being supportive thereof.

Can't quite swing it, though.
10.5.2005 1:19pm
Adam White:
Let's give credit where credit is due: the Will column initially exploded on the Internet because Steve "Feddie" Dillard posted a leaked copy of it on Confirm Them and Southern Appeal. Drudge then linked to him.

Nice job, Steve!
10.5.2005 1:20pm
Rich (mail):
With all this talk about a nominee being a real person the next nominee will have to had worked a coupla of years at U.S. Steel's Gary {Indiana}Works before being considered. Yowza -- law does not count anymore.
10.5.2005 1:35pm
jgshapiro (mail):
Mike in CO:

I'm not advocating that Miers be confirmed, I'm just describing the box that Bush has put conservatives in. I don't think she is qualified -- even if you want a practicing lawyer, there are many better alternatives -- but the problem for conservatives is that if they vote no, Bush gets weaker, and then he is probably too weak to get an originalist through the Senate. He might still get someone with better credentials who is conservative (though not another Scalia or Thomas), but I don't think you can get an Alito or a Brown through as a backup candidate if your first nominee gets shot down.

I also don't think the main problem with Miers is that she is not from Harvard, had no SCOTUS clerkship or has not been a judge. I think it comes from Will's argument that if 100 people named 100 people qualified for the Supreme Court, Miers would not be among the 10,000 names. She is not a prominent enough attorney to get there solely by virtue of her practice: she is no Brandeis or Charles Evans Hughes, for example. She has no other qualifications that mitigate this problem, such as previous experience as a judge, cabinet member, senator, senior justice department official, prominent constitutional law professor, etc. She can probably do the job reasonably well (after a steep learning curve), but there is a large bench of better qualified people and Bush completely ignored it.

Still, a senate majority has never shown independence from a president of their own party when voting on SCOTUS nominations, and I would be surprised if this was the exception.
10.5.2005 2:53pm
Amused and saddened (mail):
"With all this talk about a nominee being a real person the next nominee will have to had worked a coupla of years at U.S. Steel's Gary {Indiana}Works before being considered."

It's really sad that you actually think that would be a bad thing...
10.5.2005 3:01pm
SimonD (www):
It's really sad that you actually think that would be a bad thing...
Why?
10.5.2005 3:05pm
guest (mail):
First, I think George Will nailed it with this op-ed. I was particularly heartened to see him bring up Bush's shameful signing of BCRA.

Second:

It's really sad that you actually think that would be a bad thing...


I think he's actually saying that it's an irrelevant thing.

Besides, I thought angrily wagging calloused fingers while yelling "college boy! at white-collar workers went out in the 50s.
10.5.2005 4:00pm
NickM (mail) (www):
How many people here (among those who are generally conservative or libertarian) think Bush should have picked Janice Rogers Brown for the Supreme Court? Among those who aren't conservative or libertarian, how many think that a selection of Brown would have been a much better pick for Bush politically with his base?

Does anyone else here remember what Brown did before becoming a state Supreme Court Justice? She was a District Court of Appeal Justice, and immediately before that, was Governor Pete Wilson's Legal Affairs Secretary - a position markedly similar to that which Miers now holds.

Wilson knew Brown's qualifications very well. He stuck with her despite an unfavorable rating from the California State Bar JNE Committee. That worked out rather well.

A Governor or President will surround himself with the best legal talent he can find who will accept the position (remember that it's normally a very substantial pay cut for a successful private practitioner). Why on earth, when he nominates that person for a high judicial appointment, would you believe that the nominee is not thought by the nominator to be extremely qualified and likely to meet his goals for the position?

As to Will's "100 people listing 100 names" idea, that's simply a ridiculous way to judge the matter.

These "100 names" would be comprised in most cases of the conventional wisdom names at the top followed by names the person has heard something good about. Few American lawyers, even appellate practitioners or law professors, have actual knowledge of the legal skills of most of the federal bench, let alone the various state courts, the state and federal executive and legislative branches, and private practitioners.

Consider also, that if George W. Bush were not President, but another Republican was, that Harriet Miers would likely have been previously nominated for the Fifth Circuit or be sitting on the Texas Supreme Court - with her resume, she would have won such a race easily. At that point, she would likely be talked about in the same breath as Priscilla Owen, who few here (at least among those who have been pleased with Bush's past selections) would have faulted Bush for choosing.

Nick
10.5.2005 4:58pm
David M. Nieporent (www):
Mike in Colorado: jgshapiro is 100% right. If you're a conservative you need to grow up. Either support the President's nomination or simply be quiet. This isn't last week when advocacy of anyone other than Miers might have had a point. Work harder next time for YOUR choice, but a defeat of Miers benefits no one except your opponents.

It benefits the country, which is a little more important than Democrats or Republicans.

At this point in time YOUR choice for this opening really doesn't matter. You know, sometimes real smart people can be real dumb.

Indeed.
10.5.2005 5:18pm
David M. Nieporent (www):
Nick,

Janice Rogers Brown would not be qualified for the Supreme Court either, if she were coming from Pete Wilson's personal office, instead of having been a California judge, a California supreme court justice, and a circuit court judge. Your point, along with your comments about Priscilla Owen, makes no sense. You're acting as if actual experience is irrelevant, as if the fact that Miers could have been a circuit court judge is equivalent to her actually having been one.
10.5.2005 5:38pm
Medis:
NickM,

You make a fairly good case for Miers being qualified enough to be nominated to the Texas state appellate courts, and maybe even the Texas Supreme Court.

Now explain to me again how that means she is qualifed for the US Supreme Court.
10.5.2005 5:40pm
Shelby (mail):
NickM,

I'll second Medis' 4:40 comment. Of the names widely floated for this SCt nomination, I (as a libertarian) hoped for Janice Rogers Brown. Ideally I would've liked to see Kozinsky nominated.
10.5.2005 7:23pm
Anderson (mail) (www):
Fascinating insight on the perils of democracy: a substantial number of otherwise sane people appear to be offended by the notion that one ought to be "qualified" for office.
10.5.2005 7:57pm
Yankee_Mark:
And to think ... when Cornyn made his remark that Miers is no Scalia or Thomas, I actually THOUGHT I might have heard words coming out of his mouth without ventriloquism or the arm of Rove or Cheney sticking out of his back! But alas it has now been shown for the sham that it was.

False alarm, Cornyn's mouth was not moving after all and there is no indication at all that he has had an original thought of his very own since arriving in the Senate. Texas has one US Senator and a junior Senator who is the first parrot elected to office. Johnny want a cracker?
10.5.2005 9:35pm
Peanut Gallery:
One quick point I haven't heard anybody else make yet:

If Miers is unqualified to seriously consider constitutional questions, what exactly was she doing running the search for judges to begin with? How was she supposed to evaluate a candidate's judicial philosophy if she is not equipped to grapple with such issues herself? Wouldn't it be better to use an expert to advise the president on the merits of contenders? Or was the selection process so heavily political/strategic that the nuances of judicial philosophies was just not seen as terribly important?
10.6.2005 12:36am
A Guest Who Enjoys This Site:
Peanut Gallery: As a practical matter, Miers' primary responsibility in the selection process was in the organizing and prioritizing of a select group of CV's/resumes/recommendations regarding various candidates. It would have been a committee of advisors who staffed out the clerical work of analyzing the 'paper trail' of potential candidates. This committee would then proffer their recommendations to another committee; one supposedly led by Ms. Miers. There is a big difference between shuffling the paperwork and having to actually make the decisions; which by definition then requires you to have the ability to defend both the process and the decision.

Does this qualify or disqualify her? Either way the answer is "No." If such a process qualifies her, then what of the other voices? Would Dick Cheney be qualified for the Court on this basis? Certainly he was one of the voices. What about the Director of Communications? She was certainly allowed to weigh in on potential nominees. The list goes on.

Al Maviva: Imagine. A relevant quote from a classic work. Go figure.

alkali: A little crude, but methinks thou may be correct.

Kazinski: "It seems to me that all the carping is because both sides want an extensive paper trail for either reasurance or ammunition." - Isn't that the point of PUBLIC hearings, an informed PUBLIC, and a necessary part of the Senate's duty under 'advise and consent' as representatives of the PUBLIC?

Now, with Mike in Colorado's indulgence...

jgshapiro said it almost right. Bush has put Senate Republicans in a very real quagmire; this being potential payback for criticism on Gonzales and their tepid response to Social Security reform. If they lock step behind Bush on Miers, they risk alienating or demoralizing the base which most of them rely on in some very close districts; not to mention having the same effect on the base constituency in districts they'd like to take away from incumbent Democrats. If they "swallow the hemlock" and vote "no" on Miers, they risk weakening the President already becoming marginalized with a 40% approval rating and a "lame duck's" legislative agenda; not to mention his standing on arguments/policy decisions related to Iraq. (The issue of pushing through Alito, Brown, or whomever is moot in that they retain a 55 vote majority.)

The Republicans worked too hard during the Reagan era to reinvigorate and restrengthen the role and Office of the President. They do not want to be the party which marginalizes it again; particularly given the number of Republican senators wanting to run in '08. Neither do they wish to take a chance on a Souter, Kennedy, or O'Connor when it comes time for reelection (something Bush need not worry about).

This is why, Charles Canter, the common complaint from conservatives regarding Miers' lack of publications/decisions/etc. They want to be able to point to a definitive record, demonstrating a consistent history, regarding a judicial philosophy. It is exceedingly difficult, nigh unto impossible, to proffer informed "advice and consent" when one must solely rely on a one hour, personal meeting and vague ("the issue may come before the Court someday so it would be inappropriate for me to comment..."), one time/first time, public statements. Reliance on these statements and reassurances from colleagues and friends that she is a "lovely person" is a rather big gamble to take when it comes to a lifetime appointment.

Insofar as George Will's column, I think Richard Bellamy said it right. I further think that if Will is, in fact, recognizing what Richard suggests, then it demonstrates considerable intellectual honesty on his part. It takes considerable veracity, not to mention guts, to criticize an incumbent President, inferentially blasting those perspective '08 Candidates, when facing the possibility that such criticism might help elect someone he loathes - e.g., Hillary.

In the end, as SimonD indicates, how can we support Miers' based on the President's plea to "Trust Me" if we know he's obfuscating or lying when pushed for insight into WHY he feels her judicial philosophy is consistent with what he promised his base? That's the true landmine Bush has stepped on with this nominee. He has forced a number of Senate Republicans and his conservative base to publicly admit that they don't trust him. Could that be why the Democrats are so reserved in their commentary? They are letting the Republicans decide which way they are going to lose in this situation; especially since there doesn't seem to be any way for them to win.
10.6.2005 1:58am
jgshapiro (mail):
The issue of pushing through Alito, Brown, or whomever is moot in that they retain a 55 vote majority

This is only true IF Republicans can hold on to all of the moderate Republican votes and IF Democrats don't feel empowered to filibuster a subsequent nominee. Neither fact is assured.

If Bush is weakened, moderates will feel empowered to vote their conscience even if it is against the party line, and the Republicans will lose 5-10 votes. Rest assured that the Collins and Chafees of the world are not chomping at the bit to vote in favor of Janice Brown.

More importantly, Democrats could filibuster a subsequent nominee, and with a defeated first nominee, the willingness or ability of Republicans to play the nuclear card is up for debate. Moderate Republicans would be even more unlikely to vote to kill the filibuster forever in the wake of a defeated first nominee, a weakened president and a controversial second nominee.
10.6.2005 2:40am
A Guest Who Enjoys This Site:
I suppose the real question would be who the second nominee would be. "Controversial" in what sense? Controversial to Republicans - moderate through hard-core? Or, controversial to Democrats?

You don't suppose that the perception of withdrawal or the defeat of Miers might actually STRENGTHEN the Republican's position - demonstrating they are not sycophantically subservient to the President, appearance of cronyism and the Democrat's accusations of same will not be tolerated or substantiated, a relieved constituency, and an opportunity to have the 'debate' Rush Limbaugh-types suggest in that Republicans can deflect attention from DeLay, Frist, Brown, CIA leaks, etc. by showing the Democratic Senators as, once again, obstructionists and attempting to rule from the minority position?

Again, I'm not saying Miers is not qualified or SHOULD be rejected. I'm saying that without substantially more information, it might actually serve the Republicans better to aggressively pursue a mediocre plan than confirm a, potentially, undesirable nominee. Unfortunately, that seems to be the position Bush has put them in and I think there's going to be a very real political price to be paid no matter what happens.

The question is: Who is going to pay the price of admission? Is Bush willing to use up what little political capital he has left to get this appointment? Are Senate Republicans willing to gamble with their stack of chips on a pair of tens and raise the President while forcing the Democrats to go all in? Or, does everybody, once again, side step the hard decision and force this generation of Americans to pensively wait while the wheel goes 'round and 'round and 'round and 'round...?
10.6.2005 4:19am
Smitty (www):
Guest,
Politicians pay the price of admission? I fear the only likely answer to your question is the last one; it is certainly the only one I'd put my chips on.
10.6.2005 2:18pm