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National Review Editors Call on Miers to Withdraw:
I don't think it's likely to happen, at least any time soon, but here is the argument. Thanks to Glenn for the link.
Karl Maher (www):
Strange that NR would pick Blackmun for comparison. He was, after all, an appellate court judge for 11 years, degrees from Harvard (in mathematics!) and Harvard Law, clerked for the 8th Circuit Court of Appeals, and served as a law professor.

Absent the judicial experience, she's a much better match for the other Minnesota Twin, Warren Burger, whose resume is similarly modest.
10.14.2005 6:18pm
JayJ:
From the National Review editorial:

"Miers's own career as a lawyer shows a strong tendency to identify with local elites and establishments, to go along with prevailing ideas, and to avoid doing anything that might cause unpleasantness or rock the boat. These are useful personality traits, but they are not the traits of a Scalia or a Thomas — the kind of justice this president led conservatives to expect."

The NR editors make a good point. But it should be made explicit that those personality traits might make for a very good "sidekick" Justice to Scalia, Thomas, and Roberts. If she wants to go along to get along, she might go along with the conservatives to get along with the conservatives. The boat she may choose not to rock, the establishment she may choose to identify with, might very well be the Washington conservatives' boat, the Washington conservative establishment. In such a way she would prove her loyalty to President Bush.

Let me be clear that these conditionals are not even close to being good enough to warrant confirmation; by no means am I presenting the argument of "Confirm Miers because she'll vote with Scalia." Rather, I'm simply saying that if Miers does get confirmed, it appears just as likely that she'll be a sidekick Justice to Scalia, Thomas, and Roberts, rather than gravitate towards the center or left.
10.14.2005 6:57pm
JayJ:
Also, let me repeat a (potentially rhetorical) question I posed in a different thread:

When loyalty to one's bosses is your best trait, what happens when you are put in an office where your loyalty is owed to the Constitution, rather than to any specific person? If Miers is confirmed, it will be interesting to find out.
10.14.2005 7:05pm
SimonD (www):
JayJ
But it should be made explicit that those personality traits might make for a very good "sidekick" Justice to Scalia, Thomas, and Roberts.
This conclusion rests upon two unproven premises: firstly, that Roberts will generally align himself with Scalia and Thomas (ranges from possible to likely), and secondly, that Miers' "strong tendency to identify with local elites" will lead her to identify with the proposed Scalia-Thomas-Roberts elite, and their "prevailing ideas," rather than the Stevens-Souter-Ginsburg axis, and hence, their "prevailing ideas." I admit to scepticism about the first premise, and I think the second one entirely unwarranted given the paucity of information avaiable.
10.14.2005 7:44pm
JayJ:
Simon:

To take the second premise first (about Miers being a "sidekick" Justice to Scalia and Thomas rather than a sidekick to other Justices), the fact that there is such an extreme paucity of information (to use your expression) is why I took pains to phrase it in a conditional, possible sense (It may be the case, it might be the case, etc.). But the fact that Miers might be a "sidekick" Justice to Scalia and Thomas is certainly a possibility, a possibility which should not be ignored.

As for the first premise, you're absolutely right: it remains to be seen whether Roberts will, for the most part, be aligned with Scalia and Thomas or not. I would suspect though that on those cases which will lead to 5-4 or 6-3 decisions, that Roberts will be aligned more with Scalia and Thomas than he would be with other Justices. But only time will tell.
10.14.2005 7:59pm
JayJ:
Furthermore, to reiterate: if Miers's predominant characteristic is loyalty to President Bush, it would seem likely that she would act on such loyalty by going along with Scalia and Thomas to get along with Scalia and Thomas, since President Bush repeatedly said he would nominate Justices in the mold of Scalia and Thomas. If Miers wants to be loyal to President Bush, being a "sidekick" to Scalia and Thomas would presumably be the way she would wish to go. But as I repeated above, it's simply a possibility and by no means a given.
10.14.2005 8:05pm
SimonD (www):
If Miers wants to be loyal to President Bush, being a "sidekick" to Scalia and Thomas would presumably be the way she would wish to go. But as I repeated above, it's simply a possibility and by no means a given.
Suppose a case arises such as Hamdi or Raich, where it is impossible to agree with both Scalia and Thomas (something that happens more often than Thomas critics like to admit); does Miers simply determine which case the United States has briefed for and join that opinion? What happens when Bush leaves office - will she simply determine how she thinks Bush would have wanted the brief for the United States to read and vote for the result that most closely matches it?

The problem is, there is no evidence that she has developed a judicial philosophy or theory of constitutional interpretation at all, let alone satisfactory ones ("satisfactory" as defined here); this being the case, it seems likely to my mind that she is more likely than not going to be a "grower," sooner or later.

I think you're absolutely right that she may well vote "the right way"; but first, this isn't enough, and second, why on Earth would we take the chance? Why would we play the stealth nominee game with one of Bush's Texas chums when we could have a Justice Corrigan, a Justice Garza, a Justice Young, a Justice Alito? Don't want a Judge, George? Fine, Justice Calabresi! There's such a pool of known-quantity talent out there that it remains stupifying that we are playing Russian roulette again, a game which has never worked out for the GOP. When did "no more Souters" become "oh, one more try"?
10.15.2005 12:00am
JayJ:
As I wrote in my original post (10.14.05 5:57 pm):


Let me be clear that these conditionals are not even close to being good enough to warrant confirmation; by no means am I presenting the argument of "Confirm Miers because she'll vote with Scalia."


Furthermore, as I've written in other threads (and as you point out), once Bush leaves office, the whole calculus changes. As you put it, there's no reason to play the stealth nominee game when there's a deep bench of proven "conservative" jurists ("conservative" being in quotes only because of the limits of the term when applied to jurisprudence). If Bush wanted to pick a woman or a Hispanic, he could have easily gone with Edith Jones, Karen Williams, Edith Clement, Emilio Garza, or many others. If Bush really wanted someone who was a practicing lawyer, Maureen Mahoney would have been the best way to go. Miers was a lousy choice, no question. And let me explicit: a results-based defense of Miers, or any other nominee, is inherently limited and not anywhere close to being enough to merit qualification. To paraphrase something Jonah Goldberg wrote on NRO recently, if all that mattered was results, the National Review has plenty of interns who could do the job.
10.15.2005 1:05pm
Veggie_Burger (mail):
After the left succeeded in defeating judge Robert Bork, the verb phrase "to be borked" was added to the English language. If Ms. Miers is forced to submit or demit to the demands of the far right of her own party, then how shall we update the vocabulary? Perhaps: "The candidate was 'mi(e)red down' by her own party." But that's not a new word or expression at all, except for possibly the addition of an extra 'e'! How ironic that her own name is already applicable to her most unfortunate predicament.
10.16.2005 5:53am