Jay Rosen says the Washington Post is a better paper than the New York Times. I’ve been saying that for ages.

This George Will column about Harriet Miers is awesome. I wholeheartedly agree. It is gold from start to finish:

The president’s “argument” for her amounts to: Trust me. There is no reason to, for several reasons.

A couple of these reasons echo (more eloquently) some points I made in this post yesterday. Here is my post:

[Bush is] too stupid and lazy to put in the work to figure out that [McConnell, Luttig, and Jones] would be tremendous Justices. It’s “not his style” to make this decision intelligently. [SEE P.S. below.]

And here is Will:

[Bush] 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 prepresidential careers, and this president, particularly, is not disposed to such reflections.

Here is my post:

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.

And here is Will:

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 insure a considered response from him, he had been told in advance 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.”

And he didn’t.

Trust him?

No thanks.

Well said, George.

P.S. I should put in context my remark about Bush being “too stupid and lazy to put in the work to figure out that [McConnell, Luttig, and Jones] would be tremendous Justices.” That was in response to a comment Beldar made on his site, in which he said:

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.

Now to me, that doesn’t sound admirable, which is how Beldar means it. It just sounds dumb. And I responded:

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.

Now, I’ll grant you that I’m putting that bluntly, and yes, anger plays a part in the phrasing. It would have been more elegant phrasing to say, as Will did, that Bush “has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution.” It’s basically the same thing I said, but I was much blunter.

I don’t think Bush is as stupid as his worst critics think. It takes a certain savvy to get to where he is. But I also don’t think he’s some kind of genius, either. Let’s get real. And I’m very disappointed that he apparently doesn’t have the candlepower to figure out who would have been a great Justice.

Margaret Carlson says that Miers will be the “fifth vote” against Roe v. Wade:

Some conservatives are loudly shocked that Bush ignored the long list of known quantities among conservative jurists in the mold of his favorites, Antonin Scalia and Clarence Thomas. It depressed Weekly Standard editor Bill Kristol. Rush Limbaugh was so agitated Cheney gave him an interview to calm his listeners.

What those conservatives are missing is what Dr. James Dobson, chairman of Focus on the Family, and Jay Sekulow, chief counsel to the American Center for Law & Justice, see in Miers: a fifth vote for overturning Roe v. Wade. Bush even got Dobson’s approval beforehand.

Who are the other four, Margaret?

We have two people on the Court now who have voted to overturn Roe. Two. Scalia and Thomas. That’s it.

If Roberts is a third vote, then Miers will be a fourth.

No fifth.

Margaret Carlson: deliberately deceptive? Woefully ignorant?

Duped by the L.A. Times?

You make the call.

I am sick of hearing conservatives telling us we have to settle for a second-rate Supreme Court nomination because a first-rate nomination might lose — as evidenced by the defeat of Robert Bork. As this commenter put it:

Well, Robert Bork was an A+ pick. How many Supreme Court decisions was he the deciding vote on?

Oh, right–none. Because he didn’t get confirmed.

Read Sun Tzu: The definition of winning is “to advance your position, to take territory from your opponent”. The best battles are those you win without having to fight.

I don’t know if the Sun Tzu quote is correct, and I don’t care — because it has nothing to do with anything.

First of all, none of the A+ nominees we were pushing — such as McConnell or Luttig — were likely to come across the way Bork did. Bottom line: his mistake was answering the questions. Today’s nominees know better.

But, more importantly, Democrats controlled the Senate when Robert Bork was defeated. They had a 55-45 majority — which is, incidentally, the same majority Republicans have now. A small number of Republicans voted against Bork, and two Democrats voted for him, but the net number of defections was 3. We could afford 3 net defections with a Luttig or McConnell, and I doubt we’d have even one.

So stop quoting Sun Tzu at me. I don’t think he recommended snatching defeat from the jaws of victory — and if he did, he was an idiot. When you have the cards, play them. Bush failed to here, and he deserves to suffer accordingly.

Boy, this Miers thing sure is putting me on the opposite side of the fence from a lot of bloggers I like. The latest: PoliPundit, who purports to shoot down one argument against Miers with this reasoning:

2. Miers isn’t the best-qualified person.

This matters not a whit. Ideology trumps all. If a mangy yellow dog were the SCOTUS nominee, I’d support it, if it would consistently vote with Scalia-Thomas.

Wow. I couldn’t disagree more. To me, ideology does not trump all. I am an idealistic adherent to the rule of law, as John Roberts portrayed himself in his confirmation hearings. I believe that the Constitution means what it says, and should not be treated as a warrant for creating whatever rights are deemed necessary by philosopher-kings in black robes.

To the extent that Polipundit means “ideology” in the “rule of law” sense I have just described, I could at least understand that sentiment — though I still disagree with his suggestion that merit is irrelevant. I am a great admirer of Justices Scalia and Thomas. I certainly want to see their positions get more votes. When I was on Pundit Review Radio, I said I’d like nothing better than to clone these two Justices and pack the Court with the clones. (I’d probably have 5 Thomas clones and 4 Scalia clones, but I wouldn’t sneeze at the reverse.)

But the reason that we want to see more votes for the positions of Scalia and Thomas is because these Justices and their positions have such great persuasive force — because they have merit, and because their points of view are well thought-out.

And guess what? No two Justices always vote alike. Indeed, one fairly recent analysis showed that Scalia and Thomas voted together only 73% of the time — a “togetherness” rate that was lower than that of six other pairs (Souter-Ginsburg, Rehnquist-O’Connor, Rehnquist-Kennedy, Stevens-Souter, Ginsburg-Breyer, and Stevens-Ginsburg).

And each of these Justices sometimes goes it alone.

So they’re more independent than PoliPundit seems to realize. You’ll never find someone who votes with Scalia and Thomas even 90% of the time — because they don’t vote with each other anywhere near that often.

And — even assuming Miers votes with Scalia and Thomas a lot — it’s an open question how she will vote when she isn’t voting with them. Will she take a boneheaded conservative position that is at odds with the Constitution — like Rehnquist did in Texas v. Johnson when he voted to uphold laws against flag-burning with a completely unpersuasive “just because” line of reasoning? Will she take weaselly middle-of-the-road positions like the Justices she is being compared to, like O’Connor and Powell?

We have no idea. And we don’t even have the consolation that she is one of the very top legal minds in the country.

Not good.

P.S. I hear a lot of people saying that opposition to Miers on grounds of poor qualifications is “elitist.” I disagree. I allude in the post to the fact that, historically, judges with similar qualifications (such as O’Connor, Powell, and White) have been erratic, inconsistent, and often (though not so much with White) baby-splitters. I just don’t want any more Justices like that. It’s not that her qualifications are way out of line with those of past Justices. It’s that they are out of line with the sort of Justice I’d like to see. It’s that simple.

One of these days I’m going to favorably link to a post by Steve Bainbridge, just so he doesn’t get too put out with the way I’ve been bagging on him on the issue of judges.

Today is not that day.

I just heard Bainbridge on Hewitt’s show, criticizing the Miers nomination. Bainbridge said — and I quote:

What’s the point of having power if you’re not going to use it?

He then complained that the Republicans control the White House and both houses of Congress — so why did Bush give us such a weak nominee?

My jaw just about hit the floor of the car.

That argument sounds very familiar. It’s the argument a lot of us were making back when we wanted to see the nuclear option triggered — before we got derailed by the turncoats like John McCain and his Gang of 14. And who stood foursquare behind the Gang of 14? One Professor Stephen Bainbridge.

Now: would Bush have made this decision if the judicial filibuster had long since been thrown into the dustbin of history? It’s impossible to say. I fully agree with Bainbridge’s opinion: the Miers nomination is a travesty, given the numerous solid and eminently qualified picks out there. It’s possible that Bush would have picked a crony regardless of the filibuster.

But we’ll never know for sure.

It’s interesting that the issue of filibusters keeps raising its head. Just before Bainbridge made his comment, Hewitt — himself a Miers defender — said that the need for a filibuster-free Senate was one of the reasons Bush made this decision. And Mickey Kaus calls himself “eerily prescient” for saying in May that the filibuster capitulation was “favorable to the Dems” because

If the “nuclear option” is on the line when President Bush nominates a Supreme Court justice, that in itself will circumscribe his choice. He won’t want to name someone too controversial, lest the public side with the pro-filibuster Dems.

Mickey says today:

Now Bush has named Harriet Miers–a nominee pre-approved by the Senate’s Democratic leader and seemingly controversial only on the right.

Coincidence? Again: we’ll never know — thanks to the Gang of 14, and their supporters like Stephen Bainbridge.

P.S. I doubt Prof. Bainbridge is going to concede error on the Gang of 14 issue — but cruising his blog today, I have decided I don’t have to wait for another time to cite him favorably. He has several good posts on Miers, including this statement:

The Supreme Court of the United States is no place for B+ picks. It’s a place for A+ picks. This is the big leagues. Decisions that affect millions of lives are made routinely by this Court. Over the last 40 years or so, those decisions have consistently devalued life while endorsing an ever more expansive role for the federal government. You don’t bring the Constitution back from Exile with your B team; you bring your A team to that fight.

Exactly.

UPDATE: Here is the transcript, which shows that I quoted Bainbridge accurately.

In the L.A. Times today we have more fake but accurate reportage on the significance of replacing O’Connor, in the front-page story titled Bush Selects Close Ally for Court:

Yet it was not clear whether Bush had picked someone who would push the nine-member court further to the right on key issues such as abortion and assisted suicide, as some conservative groups have sought. The question is key because Miers would replace O’Connor, a swing vote who supported abortion rights.

This language suggests that Miers could be the swing vote to overturn Roe.

Yet it’s technically accurate. O’Connor was a swing vote, and she did support abortion rights. And she was a swing vote on some abortion restrictions, such as partial-birth abortion. But (as I have said before) she was not the swing vote on the basic “right” to abortion, which will still be 5-4 even if Miers turns out to be well to the right of Scalia and Thomas.

The story is otherwise pretty laudatory of Miers, calling her relatively undistinguished resume “distinguished.” It highlights some analysts’ predictions that her confirmation will be “less contentious” than others, because she “could turn out to be more of a centrist, like O’Connor.” And there is a graphic inside that lists a number of famous judges with no previous experience on the bench. Would this graphic have appeared in the paper had the nominee been Miguel Estrada? Pardon me while I snicker.

The L.A. Times‘s reaction reminds me of Chuck Schumer’s reaction: they’re puzzled, but they think that (as Schumer said yesterday) “it could have been a lot worse.”

Okay, this is profane and mocks someone whom I like a great deal — but it still made me laugh. (H/t Xrlq.)

Can you answer one simple question for me?

Placing aside her gender and her connections to Bush, what distinguishes Miers from other potential candidates?

P.S. A commenter answers the question by saying: “Bush chose her and that is the only answer necessary.” That misses my point. My question dealt not with the authority of the president to make his pick: he has the Constitutional authority to pick David Hasselhoff if he wants. But, unless you consider “abundant chest hair” to be an important criterion in the selection of a nominee to the Supreme Court, David Hasselhoff would probably not be the wisest choice.

So: the point of my question was: why was she a wise pick? Why is she someone he should have chosen? If the best you can do is to say “Bush chose her,” you’re conceding that nothing else really distinguishes her.

Answers?

[Posted by The Angry Clam]

Guess who said the following:

“Yes, I wanted Judge Luttig or Judge McConnell, but the president wanted Miers, and I don’t for a minute believe it is because of friendship, but because of [President Bush’s] understanding of the importance of the Court.”

Answer in the extended entry.
(more…)