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More on Miers, Intellectuals, and Evangelicals:
Over at TNR's Etc. blog, Noam Scheiber responds to my post criticizing the argument that the conservative reaction to the Miers nomination reveals a divide between intellectuals and religious conservatives. He writes:
  Sure, people like Perkins and Santorum have hedged their bets, taken a wait and see attitude, maybe even expressed some reservations or concerns. Even James Dobson has backed off his early enthusiasm for Miers a bit. What these people haven't done is make a principled case against Miers, which means they can still be persuaded to support her--and, I suspect, they probably will once they see more evidence of her political and social conservatism.
  On the other hand, a principled case against Miers is exactly what conservative intellectuals like George Will, David Frum, and Bill Kristol have made.
  I think Scheiber is confusing two different questions. The first question is whether Bush made the right call when he nominated Miers; the second question is whether Miers should be confirmed by the Senate. What Scheiber presents as a divide between intellectuals and religious conservatives is really a divide between conservatives debating the first question and conservatives debating the second question.

  Dobson and Santorum have been focused on the bottom line of whether they support the confirmation of Miers (and in Santorum's case, whether he will vote up or down). In contrast, Will, Frum, and Kristol have harshly criticized the President for having nominated Miers in the first place; to my knowledge, none of them have taken the position that that Miers should be defeated in the Senate. George Will comes the closest when he says that "it might be very important" that Miers is not confirmed, but I don't think that's quite enough.

  In sum, the two groups aren't disagreeing, but rather answering different questions. The commentators are ruminating on process, while the politicans and political leaders are focusing on the bottom line vote.

  UPDATE: In response to a comment below, I should have been explicit that the two sets of positions aren't inconsistent. Lots of conservatives feel that Bush made a poor choice, given the options, and they feel conflicted about whether the Senate should now vote to confirm Miers. The commentators are focusing on the former, the political leaders on the latter.
Goober (mail):
Surely that's not entirely responsive, though. Unless it's actually the case that those commentators discussing the first question come out largely one way, and those discussing the other come out largely the other way, it doesn't seem you've really established that Scheiber's distinction is illusory, only that your own distinction is valid, too.

I suspect that probably both distinctions are true to some extent---and many others, are, too. You might be able to make similar arguments about conservatives who care most about Roe vs. those who care most about federalism; those who voted for Bush because they like Bush vs. those that disliked Kerry; Southerners vs. Westerners; even maybe Elvis fans vs. Beatles fans.

'Cause if you think "I am the Walrus" is a good song, ain't no way you're going to support Miers. Er, maybe the other way. Okay, so that last try is a little silly.
10.6.2005 6:45pm
Jay Louis (mail):
It's important to note another sentence from Scheiber's post that Professor Kerr has left out. Scheiber also writes:

They [Will Frum Kristol et al] argue that Miers doesn't have a clearly articulated legal philosophy, and that evidence of such a philosophy should be a prerequesite for a Supreme Court nomination.

It's true that Scheiber doesn't explicitly note that Will et al believe that "a clearly articulated legal philosophy" should be a prerequisite for a vote for confirmation, but it would be hard to infer that they believe it should be a prerequisite for a nomination but NOT a vote for confirmation. While one could argue that after the person is nominated the criteria for confirmation becomes less stringent, it does not seem that such an argument is particularly tenable. After all, confirmation arrives after the nomination; not all nominees are confirmed, but all those who are confirmed are nominees.
10.6.2005 6:59pm
SimonD (www):
The difficulty is, imagine what it would take to actually stop Miers. Bush does not respond well to pressure; when Bork was defeated, Reagan took the defeat on the chin. One has only to look to the example of John Bolton to see how Bush might react to the Senate as much as delaying, let alone defeating, his nominee.

The only way to rectify this calamity is to find a way for Bush to withdraw the nomination. Santorum et al may think they're dealing with the bottom line, but they aren't; the bottom line is stopping Miers getting on the court and stopping the collapse of the GOP base. Defeating the nomination won't do it; the President has to change his mind. David Frum deserves a medal.
10.6.2005 7:01pm
Jay Louis (mail):
Just to make a spelling correction: In the block quote in the above post, it should read "prerequisite" (as it does later in the post). Silly quick typing run amok once again. :-)
10.6.2005 7:04pm
Guest99:
Harriet Miers' public statements and positions (as a Dallas City Councilwoman, bar official, and university trustee) were much, much more liberal than David Souter's statements and positions as New Hampshire's attorney general.

For example, as attorney general, Souter criticized affirmative-action as "affirmative discrimination."

By contrast, Miers pushed affirmative action at every opportunity.

Miers voted to raise property taxes as a city councilwoman.

She voted (well after joining her evangelical church) to appoint to a city post an official of the left-wing gay rights group Human Rights Campaign, which avidly supports affirmative action.

I have no idea why anyone thinks she will be a conservative on the bench.
10.6.2005 7:07pm
OrinKerr:
"While one could argue that after the person is nominated the criteria for confirmation becomes less stringent, it does not seem that such an argument is particularly tenable."

I respectfully disagree. It seems to me that selection and confirmation are quite different questions. The former is a matter of finding the best person from a pool of thousands; the latter normally involves a great deal of deference to the President's choice. In any event, I'm pretty sure Will, Frum, and Kristol know how to write articles taking the position that the Senate should reject Miers. If that's the position they eventually take, I'm sure we will hear it directly.
10.6.2005 7:09pm
Jay Louis (mail):
Thank you Professor Kerr for your thoughtful comments. I think you make an excellent point: viz., if Will, Frum and Kristol believe that the Senate should reject Miers, they will explicitly say so. Also, the claim can certainly be made that, while President Bush should not have nominated Miers, she can still meet the qualifications for confirmation based on her remarks in the Senate confirmation hearing. Nevertheless, I would think it difficult for Will et al to state that, if they had to vote for confirmation today (i.e., prior to the hearings), they would vote yes to confirm, given that they believe she should not have been nominated in the first place. Perhaps "deference" means a lower standard to confirm than it does to nominate, but the logic of what I noted earlier still seems to remain: not all nominees are confirmed, but all those who are confirmed are nominees.

As a result, what Miers can hope for is that she can earn Will et al's qualifications for nomination (and of course confirmation) during the confirmation process. Once again, thank you for your thoughtful response.
10.6.2005 7:28pm
Michael B (mail):
It's an entirely tenable point. But it's equally true that both strands are indicating a thorough and critical review, in the spirit of advise and consent, is absolutely needed. That critical review should be undertaken not as a perfunctory, formal exercise, but one which takes into account the fundamental requirements of the position - and within the overheated ideological tempers and prejudices of the times. Seemingly, Miers does not have the carefully crafted, outspoken, critically reviewed credentials which might forward her as a viable nominee in the mold of a Luttig, among others.

Of course this reflects on conservative and moderate Senators as well who largely have not demonstrated a willingness to carry a well founded fight forward. Hence it may be the President is acting, in large measure, in recognition of this perceived Senatorial weakness. A pity if this too is reflected in the calculus; a particular pity since the Dems and Left/Dems are barely hesitant to open up a fight at the drop of a hat, using highly suspect tactics and additionally demanding the ground rules and syntax upon which the fight takes place be set by them alone.

Some evenly tempered advise and consent, thoughtfully and critically exercised, followed by some Senatorial backbone.
10.6.2005 8:53pm
Bill Stewart (mail):

"Brer Rabbit and Right-Wing Opposition to Helen Miers"

Some of the right-wing opposition to Helen Miers may be legitimate, either because they know things about her they don't like or because they don't know enough about her that they do like and think that values beyond loyalty to Bush are important. But a lot of it feels so much like Br'er Rabbit saying "Oh, Please, Please, Br'er Fox, Please don't throw me in the briar patch!", trying to trick the liberals into thinking that because the right-wingers say she's too moderate for them that maybe she *is* a moderate. Putting a slightly less inflammatory spin on it, it at least seems intended to give the Democrats some slack to be able to vote for her by getting the public to view her as moderate instead of assuming that any Bush loyalist must be somewhere to the right of Karl Rove and Genghis Khan.
10.6.2005 8:57pm
adam (mail):
The fact that someone should have been selected from thousands of eligible applicants, but rather Bush chose his personal council should be a warning sign.


adam
Hookah Information
10.6.2005 9:14pm
JackJohn (mail):

It would be hard to infer that they believe it should be a prerequisite for a nomination but NOT a vote for confirmation.



Of course, this ignores the difference between necessity and sufficiency. It is necessary to have developed a jurisprudential philosophy to be nominated, but it is insufficient to be confirmed.

The point is that Miers lacks even the bare necessities. Thus, she is unqualified.
10.6.2005 11:43pm
Bezuhov (mail):
"'Oh, Please, Please, Br'er Fox, Please don't throw me in the briar patch!', trying to trick the liberals into thinking that because the right-wingers say she's too moderate for them that maybe she *is* a moderate"

Actually, no. The vast majority of us gave up long ago giving a whit what liberals think. Such concern is along the lines of Charlie Brown contemplating Lucy's thoughts regarding pulling away the football. We finally decided that our only viable course of action was electing enough conservatives that liberal thought was irrelevant.

Some of us are discovering, however, to our chagrin that liberals still control the institutions that inform our old (the MSM) and young (universities) and are unsure as to the optimal way forward, hence the disagreement regarding Miers and other issues.
10.7.2005 12:51am
Bezuhov (mail):
"stopping the collapse of the GOP base"

SimonD,

Hate to break it to you, but we're no longer the base, if we ever were. Want to see the GOP base? Go to Harriet Miers' church. We may decide that we have more in common with those folks than the Kossacks, but that doesn't mean that we have the numbers or the influence to call the tune. It is our duty to express our concerns as forcefully as possible, but don't overestimate our leverage in doing so.
10.7.2005 12:57am
Challenge:
"We may decide that we have more in common with those folks than the Kossacks, but that doesn't mean that we have the numbers or the influence to call the tune."

A LOT of those people you take as unsophisticated religious nuts know quite a bit about the judiciary. He didn't say Scalia and Thomas were his favorite justices for no reason--a lot of people know and understand their judicial philosophy.
10.7.2005 2:29am
Bezuhov (mail):
"A LOT of those people you take as unsophisticated religious nuts know quite a bit about the judiciary."

I do? Where did I say that? I will agree that they tend to be unsophisticated, often by their own admission with no little pride in the fact, and thus unusually resistant to the machinations of the sophists in high places whom I oppose above all others. Hence my alliance with them, with little hesitance at the present time.

That said, due to their familiarity with the isues involved in biblical interpretation, they do tend to have a firmer grasp on the related issues of constitutional interpretation than your average man on the street. On the other hand, the evangelical movement itself has been drifting left for a number of years, so who knows what the future holds. I may drift with them...
10.7.2005 4:35am
Jay Louis (mail):
Re JackJohn's above comment from 10.6.05 10:43 pm:

I apologize for the lack of clarity in my sentence that you quote. My point was merely that if a "clearly articulated legal philosophy" is a prerequisite for nomination (and is thus a necessary condition for nomination), presumably it must also be a prerequisite (and thus a necessary condition) for confirmation. As you so correctly note, according to the views of Will et al, one can presume that such a prerequisite is a necessary but not a sufficient condition for confirmation.
10.7.2005 12:29pm