Patterico's Pontifications

10/3/2005

More Random Miers Thoughts and Links

Filed under: Judiciary — Patterico @ 8:27 pm

All are pessimistic. Sorry. The post will continue to be updated as I think of more and read more.

1) Don’t kid yourself: Miers will be easily confirmed. Anyone who thinks otherwise hasn’t heard Democrats reacting today. SCOTUSBlog’s Tom Goldstein says she’ll be rejected. He’s wrong.

2) To the “trust Bush” crowd: Bush signed an unconstitutional campaign finance reform law. Bush instructed Ted Olson to support affirmative action in an argument to the Supreme Court. Et cetera. So even if we “trust Bush,” we’re trusting him to carry out his own policy preferences, not to pick a judge who will read the Constitution as written.

3) Even if Miers would vote the “right” way, I just don’t have enough confidence in her candlepower, because I haven’t been given any reason to have confidence. The work at the Supreme Court is not easy. It is not a matter of simply picking the result you like and fashioning an opinion around that, and Justices who treat it that way are (in my opinion) the worst disasters of all — even when they sometimes vote “our” way. They make a mess of the law, and we all have to clean up that mess.

4) David Frum worked with Harriet Miers. He says:

Harriet Miers is a taut, nervous, anxious personality. It is hard for me to imagine that she can endure the anger and abuse–or resist the blandishments–that transformed, say, Anthony Kennedy into the judge he is today.

How reassuring.

5) A telling comment from Beldar (emphasis his):

Whether he’s right or wrong, Dubya clearly is more willing to rely on his own first-hand experience with Harriet Miers than on what others might tell him, or what he might deduce from the writings of, other potential nominees like Luttig or McConnell or Jones. It’s not his style to sit down and read the several dozen collected law review articles of McConnell or the collected judicial opinions of Luttig or Jones, and whoever else whose opinions he values are vouching for those folks, their vouching apparently hasn’t been enough (as it must have been with Roberts) to overcome his preference to go with someone he’s worked with elbow-to-elbow and face-to-face. To Dubya, McConnell and Luttig and Jones and candidates like them are the “unknown quantities.” They’re all more likely to be “potential Souters” from his point of view.

Right — because he’s too stupid and lazy to put in the work to figure out that they would be tremendous Justices. It’s “not his style” to make this decision intelligently.

6) Professor Bainbridge is as appalled as I am. One wonders if Bush would have made the same choice if he knew it couldn’t be filibustered. Unfortunately, we’ll never know, thanks to the capitulation on the nuclear option by the Gang of 14 — somthing which Bainbridge heartily supported.

7) I agree with Ed Brayton: If Miers really called Bush the smartest man she’s ever known, she’s either a nincompoop or an unrelenting sycophant. Neither bodes well.

8) Eugene Volokh offers a historical perspective that compares Miers’s background to that of White, Powell, and O’Connor. This is not reassuring either, though Volokh seemingly means it to be, saying that all three are well-regarded. Perhaps by others, but not by me. O’Connor, of course, was an unprincipled squish, and so was Powell. White was perhaps less squishy, but too erratic. None of the three even came close to being what I would consider an ideal Justice.

9) This guy has found Bush’s ideal Supreme Court. Heh.

10) At least I don’t have to feel as stupid as Andrew Sullivan must feel. (Hat tip to my new full-time consultant, Allah.) (How’s that new bride of yours, buddy?)

11) Pejman’s Chequer-Board blog has lots of excellent links on the nomination. Keep scrolling.

12) Here is one of those links: a description of Roberts’s first day on the Court. In other words, a description of what a truly impressive nominee looks like once on the bench. This makes Pejman “Ever More Wistful For What Might Have Been.”

13) Conspiracy theories are generally ridiculous. This is no exception.

14) iowahawk has Miers’s job application. Great stuff. Read it and weep.

15) This is a good example of why I love Mark Levin.

16) So what do we do? Actively oppose the nomination? Or just sit it out? I am willing to wait and see before I decide. I don’t know enough about her to know whether I’d actively oppose her; all I know is that she isn’t the caliber of a Luttig or a McConnell.

17) Lorie Byrd has the best post yet on the side of the optimists. She confronts the real issues and tries to answer them. (I think she fails, but does the best job of trying of anyone I’ve read today.)

18) I am becoming highly annoyed as I read posts talking about how Miers is religious, or how she tried to moderate the ABA’s position on abortion, or how she is otherwise likely to be against abortion. I don’t really care about her personal opinions on political issues. This is not a damn political appointment. This sort of talk emphasizes how sick the entire judicial process has become.

I have to go to bed now, so I’ll stop at 18.

Comments After A Day’s Perspective: I’m Still Pissed Off

Filed under: Judiciary — Patterico @ 6:58 pm

Some conservatives I respect, such as Beldar and Hugh Hewitt, are putting lipstick on a pig today.

I’m not speaking here of Harriet Miers, of course.

But I am speaking about her nomination.

Our friend See-Dubya says on this blog: hey cheer up. It’s not Gonzales!

I assume he is being tongue-in-cheek. Because, kidding aside, we don’t know this. Sure, she is technically a separate human being from Alberto Gonzales. But there is no reason to believe that the things we feared about Gonzales are not equally true of Miers, whose views are even more unknown, and who appears even less distinguished than the relatively undistinguished Gonzales.

And the arguments we are hearing in favor of Miers from our friends the Beldars and Hewitts are arguments that they would be making if Gonzales were the nominee. I’m not guessing here — I know this to be true, because they have already made these arguments about Gonzales.

For example, here is Hewitt today:

Harriet Miers isn’t a Justice Souter pick, so don’t be silly. It is a solid, B+ pick. The first President Bush didn’t know David Souter, but trusted Chief of Staff Sunnunu [sic] and Senator Rudman. The first President Bush got burned badly because he trusted the enthusiams of others.

The second President Bush knows Harriet Miers, and knows her well. The White House Counsel is an unknown to most SCOTUS observors, but not to the president, who has seen her at work for great lengths of years and in very different situations, including as an advisor in wartime.

And here is Hugh Hewitt in July on the topic of Alberto Gonzales:

I would prefer both nominees to come from the pool of Judges Garza, Luttig, McConnell and Roberts (and Judge Jones would be fine as well.) But it is really absurd to suggest that AG Gonzales is not qualified to sit on SCOTUS, or that his nomination would be a “betrayal” of past promises. George Bush knows the AG very, very well indeed. A Bush nomination of Gonzales would be the exact opposite of a Souter nomination.

Same goes for Beldar, who said this today:

When Dubya looks at her, he doesn’t think “blank slate, might be a Souter.” He thinks: “I know her, she’s been my lawyer through thick and thin, and I know things about her judgment and character that nobody else knows about her, but that leave me entirely comfortable about how she’ll turn out as a Justice.”

. . . .

Would I have picked her? Probably not. But she hasn’t been my lawyer, and I’m not the President. . . . And so I will happily support this nomination, and I wish Ms. Miers good luck, fortitude, and grace in the confirmation process.

And Beldar said this in July about Gonzales:

[A]lthough I have some reservations about a Gonzales nomination and see no shortage of other appealing candidates, I definitely don’t know as much about his heart and his mind and his character as Dubya does. I actually give more than just lip service to the idea that a President (any President) ought to be given a whole lot of discretion in making these choices. Based on that, I’ll enthusiastically support a Gonzales nomination if that’s indeed who Dubya picks.

So, as you can see, Hugh and Beldar both would have supported a Gonzales nomination, even though he has taken a public stance in favor of racial discrimination (“affirmative action”), and has a very wobbly record on parental notification cases in the abortion context.

As someone who would have been appalled by a Gonzales nomination, I am not reassured.

By the way, when Beldar made his comments about Gonzales, I left this comment (deleting my own expletives for comic effect):

Beldar,

Having read you for quite some time now, I have a pretty good idea what your philosophy of jurisprudence is. And it’s pretty similar to mine.

And it’s been [expletive deleted]ed up for some time now, and a Justice Gonzales is certain to continue [expletive deleted]ing it up — for years to come, as you point out.

So I’m almost shocked that you seem so upbeat about the prospect of the President nominating someone who is going to be such a [expletive deleted]ing disaster for our constitutional interpretation.

He did not respond, at least publicly.

For my part, as I said earlier, I remain highly disappointed. It is impossible for me to imagine that Bush picked Miers because he felt her to be the best qualified candidate. And spare me the charges of elitism. I don’t maintain that you have to go to a top-rated law school to be a Supreme Court Justice, or graduate at the top of your class, or do a Supreme Court clerkship, or even an appellate clerkship, or argue appellate cases, or be a law professor or a judge, or write published articles about the law.

But when you have done none of these things — though it’s only an educated guess as to a couple of these issues — it causes me some real concern. After all, the Supreme Court isn’t a “second tier cabinet post.” It’s not a place for a “B+ pick.” It is unquestionably an A++ position that demands an A++ candidate. There are plenty around. Miers is not one of them.

Again I ask: what distinguishes this woman, other than that she is a woman and that Bush knows her (i.e. she’s a crony)? I have yet to hear a satisfactory answer to this question.

It would silly to suggest that Bush picking a crony is surprising; he’s got quite a track record of doing so. But it is highly disappointing. While Roberts was not the ideal nominee, he was pretty close, given his clear competence. From what I know, Miers doesn’t even come close.

I’m not sure what I expected, but I had hoped for much better.

Bottom line: there is something Tony Soprano used to say about his mom. It’s a phrase that (properly understood) means “I’ve had it with this person.” If you are a Sopranos fan, you know the line I mean. That’s how I feel about Bush now.

See-Dubya: Cheer up, guys! (updated)

Filed under: General — See Dubya @ 10:55 am

It’s not Gonzales!

Sigh….

UPDATE W/ PERSPECTIVE: It’s not Jamie Gorelick!

Is this Really the Best They Can Do?

Filed under: Judiciary,Law — Angry Clam @ 10:14 am

[Posted by The Angry Clam]

The only positive things about Miers going around on the blogs have essentially three sources. They’re all weak.

The first is a series of posts on a Christian fundamentalist weblog that several enterprising blog readers have taken to comment spamming a link to on various blogs. The posts are based mostly on what appears to be a short conversation with Texas Supreme Court Justice Hecht, who’s the iconic conservative of that court and, apparently, a close friend of Miers. This friendship is supposed to make us feel all warm and fuzzy over Miers’ nomination.

I have two things to say: 1) Scalia’s best friend in the universe is Justice Ginsburg and 2) Hecht confuses Originalism with Textualism repeatedly in his comments as reported, which leads me to question how much weight we should give his opinion, #1 notwithstanding.

The second is this post by Beldar. At least he’s trying. Still, it’s based entirely on “well, Bush knows her better than we do.” Sorry, that doesn’t fly. Bush thought that Vladimir Putin had a good soul. Bush loves Vicente Fox. And on and on. I have zero trust in the President’s evaluation of the character of others, and even less in his ability to understand or evaluate the jurisprudence of candidates.

The final one is Hugh Hewitt. Full disclosure: I hate Hugh Hewitt, because he’s managed to be a bigger tool of the “Bush is Reagan Part Two!!!” crowd of the Republican Party than even such icons of that group like Sean Hannity.

[Patterico says: remember that this is not my post! It’s the Angry Clam’s. So please don’t leave comments asking me why I hate Hugh Hewitt. I don’t.]

His post, too, rests on the “I trust the President” foundation. I’m sorry, Hugh, but the Bush family, and Republicans in general, have shown that we cannot take them at their word when Supreme Court nominations are in play.

Plus, the very fact that he calls Miers’ qualifications “B+” indicates that he cannot be taken seriously on this matter. I know that her qualifications compare very favorably to his own students, but she would be dwarfed by the intellects that inhabit the Supreme Court, and would be easily intellectually bullied by the advocates, most all the other Justices, and almost certainly her law clerks as well. It’ll be like the later years of Justice Marshall all over again.

No thanks.

L.A. Times Editor: Not Enough About Celebrities in Our Paper

Filed under: Dog Trainer — Patterico @ 7:27 am

One of the goals of the new L.A. Times editor, according to Kevin Roderick, is to publish “more bits on Hollywood and celebs.”

Because you can never have too much of that!

What a Disappointment: Bush Chooses Miers

Filed under: Judiciary — Patterico @ 6:17 am

As The Angry Clam says below, Bush has chosen Harriet Miers to replace O’Connor.

My reaction is pretty much the same as the Clam’s, though I am saving the profanity for friends and family. I don’t know much about this woman, but what I do know does not impress me. Bush could have done much, much better. I am likely to sit this one out and simply watch in appalled disgust.

It’s looking like my days of supporting this President may be over.

P.S. From the L.A. Times story:

“I know her heart. I know her character,” [Bush] said.

Translation: she is a crony.

On Tone Deafness

Filed under: Judiciary,Law,Morons — Angry Clam @ 6:00 am

[Posted by The Angry Clam]

You know, just when I thought that the worst possible move that the Bush Administration could make would be to nominate Alberto Gonzales, he goes and shows me up.

Harriet Miers is the absolute worst thing he could have done, at the absolute worst time. Undistinguished academic record, unremarkable career shared by thousands of other attorneys, significant campaign contributions to Democratic candidates and PACs, and the whole crony-ism thing- first Michael Brown, then Julie Myers, and now this.

Remember Abe Fortas? Yeah, this is part II.

[Classic Angry Clam (read: profanity) in the extended entry. — Patterico]

(more…)


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