Patterico's Pontifications

10/4/2005

Question for the Miers Supporters

Filed under: Judiciary — Patterico @ 6:25 am



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?

77 Responses to “Question for the Miers Supporters”

  1. She’s an evangelical that talks to bush about Jesus.

    actus (ebc508)

  2. She is not Janice Rogers Brown. I have heard a couple of samples of her (Brown’s) work, and I think I am in love. Alright, I know, this is getting kind of creepy, but does anyone want to start a JRB fan club?

    AMC (08180f)

  3. She can’t bring herself to say, “Thank you very much for your confidence in me, Mr President, but for a number of reasons, I really must decline your nomination.

    Black Jack (ee9fe2)

  4. The answer is that a person qualified under the US Constitution, Article II, nominated her per Article II, Section 2, Clause 2.

    This is not mere flippancy. The US electorate, by providing Bush with his position, has both granted and entrusted to HIM the power and the right to “distinguish Miers from other candidates”.

    So, again, the answer is that Bush chose her and that is the only answer necessary.

    jim (a9ab88)

  5. Jim, let’s just see how far you’re willing to go with that argument.

    Would a just-graduated lawyer be qualified if nominated to the Court, even if (s)he hadn’t yet passed the bar examination? How about a day laborer from Lubbock? A six year old?

    I think it’s silly to say that “she’s qualified because the President says so”- qualifications for the office are not the same as requirements for holding it.

    Angry Clam (fa7fff)

  6. So, again, the answer is that Bush chose her and that is the only answer necessary.

    Yup. I think that’s the only answer — because nothing else distinguishes her.

    Patterico (4e4b70)

  7. “This is not mere flippancy. The US electorate, by providing Bush with his position, has both granted and entrusted to HIM the power and the right to “distinguish Miers from other candidates”.”

    This is the logical extension of the wingutty point that the senate must advise and consent to bush’s apppointment, no matter what.

    actus (ebc508)

  8. To the Clam –

    Could you cite or point me to a citation that specifies the requirements one must have to be a member of the US Supreme Court?

    To Patterico –

    Yup, indeed, but it is the only thing necessary.

    To Actus –

    Senate confirmation is required, per the same citation, presumably as a check/balance should the POTUS nominate someone deemed unqualifed or fatally flawed by a majority of the representatives of that body who, themselves, were empowered by the same electorate and the same document as POTUS. That threshold is for them and them alone to determine. I reread the Constitution again this morning – always a pleasure! – and I detetected no mention of wingnuts, moonbats, television talking heads, news anchors, etc.

    jim (6482d8)

  9. Jim’s right. The statement just acknowledges that the president, not the Senate, nominates Supreme Court justices, with the advice and consent of the Senate. He’s not bound to take the Senate’s advice, and of course, the Senate is not bound to give consent, but the consent should be given if the nominee is qualified, even if the Senate, or some Senators, think there is a more qualified person. So, if Miers is qualified, she should be confirmed, but even if she is, hopefully the President will consider the criticism the next time he makes such a nomination.

    The “confirmation” hearings are supposed to be for the purpose of determining whether the nominee is qualified and therefore should be “confirmed”, not for the purpose of providing yet another opportunity for the Dems’ leaders in the Senate to “confirm” for us that they’re a bunch of empty-headed windbags. The smart money is that the Senators give us both kinds of confirmation. Again.

    TNugent (6128b4)

  10. “That threshold is for them and them alone to determine.”

    It doesn’t say its them alone. It says the mechanism via which advise and consent takes place is the senate. But it doesn’t say everyone else should butt out. Looks like you’re reading something into the constitution.

    actus (ebc508)

  11. Miers: missing the forest for the trees

    The arguments over Bush nominating Miers have NOT focused on the one issue which is truly important: how she will cast her vote on issues before the Supreme Court, what she does on the Court, and not on what she did or knew or worked for prior to takin…

    ThoughtsOnline (d3e296)

  12. There is a substantive difference between the parties today. The GOP is the party tasked with protecting the homeland, fiscal responsibility (see California), and good government–erecting a governing framework. The Dems are the party that seeks to test and exploit the framework that exists along the margins. Yin and Yang.

    When the GOP cannot be trusted to provide good government, it is saying that good government is not necessary (as some are already saying–see La Shawn Barber’s column today). Of course, that is not true. Every time we permit bad government, we ultimately pay a hefty price.

    For the party of good government, a solid foundation is its own reward. Sure, we live in the state that we build, but it is not for ourselves alone that we are building a great state. A well-built state is a monument for posterity. We take pride in saying, “We did this.” We look to our leaders to allow us to organize our efforts for productive purposes. We realize that the quality of our efforts are either maximized or limited by their decisions.

    When we retract our support for poor leaders, we are ratifying our purpose–that portion of our existence that we have already allotted for the construction of the house we will never live in. We do this so that in future generations that house can be built as it was meant to be built for all generations to come after that. That house serves the purpose of reminding those generations everyday of their lives that we did indeed do something great.

    Our great forefathers did nothing less themselves (at least going back beyond this last profligate generation). Bush should resign.

    Paul Deignan (9e57a7)

  13. To most people, on both sides of the aisle, what really matters is how she is going to vote on the issues that come before the court. Pat Buchanon wouldn’t have a problem with a day laborer (or, perhaps, even me) on the bench if that person would vote to overturn Roe-v-Wade, nor would Schumer object to Bush’s personal lawyer being confirmed if he was convinced that she would continue to support abortion rights and affirmative action. The number of people who want the process to focus on such issues as qualifications, background, judicial temperment, law school and so on are, in my opinion, in the minority (most people care about the sausage itself, and not how it is made).

    Those secondary issues are debated, not because they are important in their own right, but because somehow, somewhere it become improper to demand that judicial nominees tell us what they think about certain issues that are likely (or, for some issue, only may) to come before the court. This is how we get the spectacle of Thomas claiming he had never really thought of Roe-v-Wade (if I didn’t accurately capture his words, sorry), how we get Roberts dodging questions, and being complimented for his skill in doing so, and how we get Miers as a candidate.

    So we’re left arguing about what school a particular nominee attended…. instead of what is important…. how she will vote.

    steve sturm (d3e296)

  14. To Actus –

    Amendment I to the Bill of Rights seems to address your point.

    That is, you can “butt” in by free speech. You can “butt” in by assembling peaceably or even by petitioning for a redress of greivances. That appears, by my reading, to be all you can do, unless you are a senator and can convince enough other senators to join you.

    I invite you, as I did Clam, to show me where the controlling document says otherwise. If you cannot, then I suggest that if you feel there is another way to “butt in”, that it is not I who is “reading something into the constitution” that is not there.

    jim (6482d8)

  15. I acknowledged that you were correct that the only requirement to sit on the Supreme Court is presidential nomination and Senate confirmation.

    However, those two things have absolutely nothing to do with whether someone who obtains both of them is in possession of the legal and intellectual abilities needed to competently serve on the Court.

    For example, anyone can be chairman of the Federal Reserve. Would you want anybody other than a banker or an economist to be doing that job? I doubt it. The Supreme Court isn’t magically different.

    Angry Clam (fa7fff)

  16. “If you cannot, then I suggest that if you feel there is another way to “butt in”, that it is not I who is “reading something into the constitution” that is not there.”

    You said them and them alone. They’re clearly not doing this alone.

    actus (ebc508)

  17. To the Clam –

    The controlling document is silent on the subjective qualities you named. And, do note, they are “subjective.”

    The inference I draw is that the Framers of the Constitution left the subjective determination as to whether an individual had such qualities to POTUS, subject to Senate confirmation, and not to individual citizens, no matter how well-intentioned and/or opinionated they might be.

    So, the answer to your question seems to be “yes”.

    To Actus –

    I have gone back over all my posts above, and cannot find the words “they” or “them”.

    If you meant Potus, he has done his job in the fashion he chose and in precise accordance with the Constitution.

    If you meant the members of the Senate, that remains to be done. Certainly, as I noted above, Amendment I provides for you to attempt to influence the Senators from your state, and even those from other States.

    Beyond the above, I cannot discern your meaning.

    jim (a9ab88)

  18. Well, gee, sorry Massa, lemme jus’ steppin fetchit for da big boss Bush.

    The idea that I cannot state that she is unqualified because I’m not the executive is pretty silly.

    Angry Clam (fa7fff)

  19. Lots of people are qualified. Hell, Patterico is qualified. Matter of fact, you don’t even have to be a lawyer, so I’m qualified, so long as Bush would pick me.

    Good thing Michael Brown is in such disfavor.

    As I said on my blog, the BEST argument I’ve heard for her is that Bush picked her. An argument as mediocre as the nominee.

    Kevin Murphy (6a7945)

  20. “I have gone back over all my posts above, and cannot find the words “they” or “them”.”

    Try rereading: ‘Comment by jim — 10/4/2005 @ 7:54 am.’

    They’re clearly not doing this alone.

    actus (ebc508)

  21. To the Clam –

    I did, finally, spot where I had posted the sentence you cited back to me – sorry. It was the members of the Senate to which I and then you referred.

    On your #18, you are very much entitled to make your statement, per the Amendment I to the Bill of Rights of the Constitution. It is free speech – an opinion, much like declaring your favorite color. You may voice it, you may write it, you may post it, you may shout it. As was famously declared (oft attributed to Voltaire), another may not share it, but might well die to defend your right to voice it.

    It just does not have any other role in the process.

    jim (a9ab88)

  22. To Patterico –

    I see that you have rephrased the question.

    IMVHO, I think she is Schrödinger’s cat and Bush believes that he (and no other) has peeked into the chamber.

    jim (a9ab88)

  23. jim – How do you decide who to vote for in a presidential election? I mean, all the candidates meet all of the Constitutional requirements, so they’re all distinguished and equally qualified, right?

    eddie haskell (8fd1a1)

  24. Bush chose her because she’s a 60 year old lady who has never been married and has no kids and may spend an inappropriate amount of time with her 91 year old mother.

    Where do you think she will come out on the equal protection argument in favor of gay marriage? Hmmmmm.

    MOG (a77f5e)

  25. To eddie haskell –

    I form a personal opinion re the candidates, based on matters that are most important personally to me. The one I vote for is within MY power and authority under the laws of the land. Just because I have a power or authority in one place, however, I do not let myself deny that another may have power or authority somewhere else.

    jim (6482d8)

  26. “It just does not have any other role in the process.”

    I never said it did. I’m complaining about it, and urging her rejection. I actually managed to catch the senator who keeps his branch office upstairs and tell him how terrible a nominee she was.

    His response? “I know, but I’m probably going to vote for her anyway.” It makes me sick.

    Angry Clam (fa7fff)

  27. To the Clam –

    You posted earlier:

    “The idea that I cannot state that she is unqualified because I’m not the executive is pretty silly.”

    Then you posted:

    “I’m complaining about it, and urging her rejection. I actually managed to catch the senator who keeps his branch office upstairs and tell him how terrible a nominee she was.”

    So, you admirably exercised your rights and the precise Constitutional process.

    Last, you posted:

    “His response? ‘I know, but I’m probably going to vote for her anyway.’ ”

    So, you used every right you had and “lost”, though you still have one more Senator you can inform as to your opinion.

    You do know, I trust, that there is no divine right of victory? I mean, if you’re a RedStater, Clinto got re-elected. And, if you’re a KerryIte, Bush got re-elected.

    You can’t win them all. Additionally, you don’t even know if you lost THIS one yet. And, if you do “lose”, it may turn out for the better anyway. Bush might be right this time – it seems to have happened before, yes? 😉

    jim (6482d8)

  28. jim – So you do recognize that one individual may be preferable to another, even though both meet the constitutional minima, but in this case you defer unquestioningly to the GREAT OZ!

    eddie haskell (8fd1a1)

  29. Just because she might vote the way I want doesn’t excuse the fact that she was a crony hire with an undistinguished resume and no apparent intellectual heft.

    People really need to stop treating it like it does.

    Angry Clam (fa7fff)

  30. To eddie haskell –

    I do indeed recognize that I might prefer one individual over another. The Constitution specifies what I can do and, indeed, the Clam has undertaken it in textbook fashion.

    Bush voted for her and, possibly, looked around for other qualified votes and, finding, none, made known the results of the voting: For Miers – 1, Against – 0.

    This is much like Lincoln in the civil war when considering the design of a new war vessel. His cabinet was unanimous against it. He put it to a vote. They all declared “Nay”; he declared “Aye”; and he then announced that “The Ayes have it.”

    That ship was named the Monitor.

    In this case, Bush did not go through the fiction of letting others “vote” as his vote was the only one allowed per the Constitution.

    So, whether I agree with Bush or not, it matters not, no more than it does if you or The Clam agree or not. The US “system” gives Bush that right for this choice and that is the all of it.

    jim (a9ab88)

  31. Jim – aye, the executive may nominate whomever he wants. But the Senate is entitled to use its own judgement in confirming the nominee, and the argument that there are implicit qualifications necessary to the job is a legitimate one which it may use in its deliberations.

    But I think you’re missing a finer point, here. Legally the President may do as he has done. But that isn’t the question anyone here is asking; the question is, should he have done as he has done? To respond to that with the point that he has the authority to do so is to fail utterly to understand the nature of the question.

    aphrael (e0cdc9)

  32. Thanks, aphrael, I was just about to say exactly that.

    Angry Clam (fa7fff)

  33. To aphrael –

    The Senate has the right to decline to confirm any POTUS nominee for any of the position named in the Constitution. The Senate need not give any rationale for the refusal. The counter-check to that is the recess appontment, though (IIRC) such are not available to “for life” appointments.

    As to any implicit qualification, historically, something like 40 (?) US Supreme Court judges had not been a judge previously, so that particular absence in her resume can be trivially rejected as a potential disqualifier.

    As for the “should [POTUS] have done as he has done”, I give you the same answer that I gave to Patterico (above):

    “IMVHO, I think she is Schrödinger’s cat and Bush believes that he (and no other) has peeked into the chamber.”

    jim (a9ab88)

  34. Miers’ paper trail is largely protected since she serves the president. She’s never been a judge either. So her nomination avoids a fight. So the question becomes, “Why is Bush so afraid of a fight?”

    Tillman (1cf529)

  35. Jim – oh, I absolutely agree that the absence of previous judicial experience should not per se be a bar. But usually, in the absence of prior judicial experience, there is an expectation that there is some other evidence that the person involved is a brilliant legal thinker. There is little to no evidence of that with respect to Miss Miers.

    Maybe Bush has seen something the rest of us haven’t; i’m withholding judgement on that until I see how she performs in the confirmation hearings. But, given what I do know about her, i’m skeptical, and i’m not willing to take the President’s word on faith. I’ve seen too many of his other appointments in order to be willing to do that.

    [Note that I don’t *care* whether she’s conservative or not. I want brilliant minds on the court, preferably from both sides of the legal spectrum. I was convinced Roberts was such a one; i’m not convinced Miers is.]

    aphrael (e0cdc9)

  36. Hmmm … maybe everyone else said no.

    Kevin Murphy (9982dd)

  37. Aphrael –

    I just got done reading a piece over on americanthinker.com with the title “Don’t misunderstand Miers”. I heartily recommend it and it may address some of your concerns.

    jim (6482d8)

  38. I agree with Beldar that GWB nominated Harriet Miers over other (in my opinion, much better qualified) candidates because she’s the one he trusts. I think GWB believes that Supreme Court vacancies are so important that you can’t risk another Souter, so he willingly nominated a less qualified candidate who is – to him – a known quantity. I don’t think GWB cares what lawyers think of the selection.

    Deborah (15ed57)

  39. Incidently, I wonder if John Roberts (during his Senate testimony) answered questions in ways that surprised or concerned GWB/Miers/the White House handlers. While the rest of us were overwhelmed with Roberts, perhaps the White House was not so happy with some of his answers. As a result, GWB may have decided no amount of vetting would substitute for personal knowledge of the nominee.

    Deborah (15ed57)

  40. Let’s face it, if not for the RINOs in the Senate causing the Republican majority to behave like a minority in the spring, we would probably be looking forward to O’Connell, Luttig or maybe even JRB joining Roberts on the Court. If W knew he had a filibuster-proof, rock-solid majority, does anyone really think we would be discussing Miers right now? Let’s not let Chafee, McCain, Snowe & Co. completely off the hook on this one.

    TNugent (58efde)

  41. The only way a second “stealth” candidate makes sense to me is if Bush knows he has very good odds of a _third_ nominee.

    Because I’d rather have the knockdown drag-out fight in the summer of 2006 _if_ I was given a choice.

    It gives some of the Appellate appointments more time-in-grade, while simultaneously lowering the bar of on-paper competence and experience.

    So _IF_ it works out that way, I think we’re in a better shape for Owens in 2006. Easier to pressure the Republican senators, easier to pressure the D’s that are in red states….

    Al (00c56b)

  42. IMVHO, the best way for the Miers nomination to go smoothly through the Senate is to have enough Conservatives seen to be prominently wringing their hands that she is not Right enough.

    Let’s consider SCOTUS nomination #3, shall we? After all, Justice Stevens in 85.

    jim (a9ab88)

  43. But I think you’re missing a finer point, here. Legally the President may do as he has done. But that isn’t the question anyone here is asking; the question is, should he have done as he has done?

    Thank you as well, aphrael. I actually updated my post to make it clear that that is what I was asking.

    And I haven’t seen an answer yet, after so many comments.

    Patterico (079a31)

  44. David Hasselhoff ist ein grosser Rockstar.

    He would be the awesomest Supreme Court Justice ever. Couldn’t you see him roaring up to the Court in Kit?

    Angry Clam (fa7fff)

  45. Patterico –

    I think Bush did a wise thing. He managed to find a candidate (1) that he trusted to conduct him/herself on the Court as he wished, and (2) that the Dems would be powerless to stop and would make themselves look even worse than they did with Roberts should they try. “That evil Bush, nominating someone we cannot oppose! Outrageous!”

    Yes, he might have won a long battle for a “best” candidate, but he did not need one and he might even have lost it. Another Voltaire quotation:

    “Le mieux est l’ennemi du bien.”

    jim (6482d8)

  46. Jim – I’m not sure I trust you rpolitical analysis there. The Democrats may be able to stop this one, and they won’t make themselves look particularly bad in doing so. Their mantra would be “just like michael brown, harriet miers is an unqualified crony . She is the anti-roberts. She has neither the intellectual stature nor the experience to do the job well.”

    Such an argument might well fail. But I wouldn’t bet money on it.

    aphrael (e0cdc9)

  47. I don’t think they’re going to try that hard to stop her. They’ll make some noise to pacify their interest groups, but once the cameras are gone, they’ll whisper to those groups: She doesn’t look as bad as what we could get.

    Patterico (079a31)

  48. Aphrael –

    I “trust” Reid’s instincts, here. He’s essentially on the record supporting her, or maybe even advocating her. He will keep them in line.

    No, unless something really “special” flushes out of the woodwork, I believe that the Dems will mug for the media, posture for the PACs, and bloviate for their backers but make no serious attempt to defeat her.

    jim (a9ab88)

  49. Jim – the article at American Thinker is interesting, but I don’t think it addresses my concerns, unless by address them you mean dismiss them. 🙂

    As I understand the argument, it seems to be that (a) it’s not necessarily so that the supreme court should consist of nine great legal scholars; (b) that she will provideotherwise-lacking insight by being a former businessperson and is close to the executive; (c) that she will serve as something of a conservative analogue to Bill Brennan, winning by force of personality cases which others seek to win by superior legal reasoning.

    It’s an interesting argument. I think there’s something to be said for the notion that perspectives other than that of a federal or state judge are valuable on the Supreme Court, and I think that a Brennan-like personality is a useful thing for ensuring greater comity among the justices and for helping to ameliorate the court’s recent tendency to fracture in nine different directions on many significant issues. But that doesn’t negate, or in any way mitigate, my concern that the justices be people with great intellectual prowess.

    If the goal is to provide a different perspective and a persuasive personality, surely there is someone who can do that who has also demonstrated that they have a superior intellect, is a good writer, and is capable of tackling complex technical issues in which they have a limited background and for which they have only short notice that they will need to develop the necessary skills. I see nothing in Miss Miers’ record which suggests that she is such a person.

    aphrael (e0cdc9)

  50. Patterico – I hope you’re wrong. I would like to think that the Senators of both parties are interested in something more than “will this justice vote in alignment with my preferred outcomes.”

    aphrael (e0cdc9)

  51. while simultaneously lowering the bar of on-paper competence and experience.

    Al – why do you think that is a good thing?

    aphrael (e0cdc9)

  52. Patterico – as an aside, one of the most frustrating things i’ve ever encountered in political discussions is the difficulty many people have in distinguishing the question “what is legal” from “what is *right*”. The conflation of the two is a national scourge.

    aphrael (e0cdc9)

  53. Aphrael –

    I did specify “address” and did not promise “resolve”! 😉

    Still, she does not have to “win” anything while on SCOTUS. She need only recognize the right answer and join a group to create a majority. Her resume suggests she can do all that and more quite ably, and diversity is good. Despite all those who desire brilliant Constitutional scholars on SCOTUS, we needed the truly brilliant ones to WRITE it. That job is done and I, personally, am more comfortable with SCOTUS just abiding by the language there and not brilliantly divining what those historical folk must have or would have or could have really meant.

    You know, General Patton even agreed with Voltaire!

    “The best is the enemy of the good. By this I mean that a good plan violently executed now is better than a perfect plan next week.”

    Bush obviously thinks she’s good enough and that she can get aboard SCOTUS quickly. Get her confirmed and think Stevens!

    jim (6482d8)

  54. aphrael said:

    one of the most frustrating things i’ve ever encountered in political discussions is the difficulty many people have in distinguishing the question “what is legal” from “what is *right*”. The conflation of the two is a national scourge.

    “Scourge” is right. I think it’s been similarly expressed on libertarian bumper stickers as “My freedom is more important than your good idea.”

    Seems like Harry Reid is basing his stance on Miers on the dismay of conservatives. If the Dems embrace her as a an olive branch, they’re stupid. Opposition to her should be bipartisan. The filibuster issue was for substantive political differences. This is quality control.

    biwah (f5ca22)

  55. patterico – I would tell you that it was a nice try, and that it’s too bad that nobody would answer your question, but the fact that we are over 50 posts into this subject and the evidence offered for Miers’ distinction by her supporters amounts to little more than “the Stevens replacement is what really matters” and “it’s the president’s right to appoint who he wants” eloquently makes your point.

    eddie haskell (8fd1a1)

  56. Jim – so what *is* an “unreasonable search and seizure”? how should a judge go about determining that? Saying that a judge should simply abide by the language isn’t a useful rubric for how that judge should determine what ambiguous language of this sort means.

    aphrael (e0cdc9)

  57. Again I second aphrael. Somewhere behind the “judge as constitutional mechanic” there is a worthy principle of judicial prudence. To rebut some of the implicit misconceptions Jim shows about constitutional interpretation:

    It’s not novel, nor specific to this century.
    It’s not inherently liberal.
    Its scope is properly limited.
    It, including the observance of its limits, requires great skill and prescience.
    Finally, it is necessary.

    She need only recognize the right answer and join a group to create a majority.

    Jim, this really shows your ignorance of constitional law, and I don’t make insults lightly.

    biwah (f5ca22)

  58. Patterico – I hope you’re wrong. I would like to think that the Senators of both parties are interested in something more than “will this justice vote in alignment with my preferred outcomes.”

    Sorry, too naive. I feel that way, but too few others do.

    I said in another thread, I think, that if we know she will be mediocre but she’ll vote to overturn Roe, I don’t want her. I don’t want to win this fight that way. I’m not reassured if she is personally anti-abortion. Such personal views should not matter.

    Call that naive, if you want. I want the top-quality people on the Court. She may be a competent lawyer and a nice person, but from what I know, she’s not top-drawer. B+ versus A++. We need A++.

    Patterico (cd0308)

  59. It bears repeating: She will be great for us because President Bush chose her.

    Rebecca (fb5ae7)

  60. Yeah, look how Asa Hutchinson, Mike Brown, Julie Myers, Michael Chertoff, and Alberto Gonzales have been.

    Bush picked her, we’re sure to get a winner!

    Angry Clam (a7c6b1)

  61. Angry Clam – it has been clear to those of on the left for some time now that Bush has an unusually strong cult of personality among some of his supporters. I’m utterly unclear on how to go about breaking that cult.

    aphrael (e0cdc9)

  62. Sadly, I think it’s going to take a horrible disaster like Miers to do it.

    By then it will be too late.

    Angry Clam (a7c6b1)

  63. I think a woman who rose to be the managing partner of a big Dallas law firm and oversaw the merger with another big Dallas Law firm to be managing partner of a huge law firm must know a thing or two about coming out on top in the legal equivalent of a bar room brawl, FWIW.

    MD in Philly (b3202e)

  64. Biwah –

    You may or may not make insults lightly. Both are your right, precisely as Bush’s to pick Miers. Have a nice day.

    Aphrael et al –

    Just why must one have already been a judge to make sound Constitutional decisions?

    If I were to guess, it is less that you and the others feel one must have been a judge to do that, and more that you want to see just what decisions she has already made and how she argued her opinions.

    The problem in that position is that any track record that you might credit would be a debit to another. Perhaps the easiest confirmation would come in an absence of such a record. Did not Roberts gain in such situations? The Dems could not point horrified fingers at this decision or that and screech “litmus test” to the Senate walls. What would be nice might be if Bush had a sound basis to conclude she was a sound candidate. He obviously has motive, means, and opportunity to do that. Do you not trust him to have done that? If not, if you do not trust him to make the judgements that POTUS is supposed to make under the same Constitution that he swore to follow, should he not be POTUS, then? Are you suggesting he should be impeached? Have I wandered onto a site beginning with “K” here?

    The more you would put those nice happy-face “+”s after an “A” candidate, the more those on the other side of the aisle would drop their view of the letter grade and want to fight. It would seem that Bush does not want that fight now. He does want to govern and just may be thinking strategically, taking the long view. You want your fight? Be careful what you wish for.

    jim (4fb61f)

  65. Do NOT make fun of The Hoff.

    Christopher Cross (b2429d)

  66. Jim –

    Before I let this one go, I should admit that I made a peevish comment in a peevish moment.

    But your argument is still pure tautology.

    Patterico links to a Frum article, in which Frum writes:

    The objection to Miers is not that she is not experienced enough or not expensively enough educated for the job. It is that she is not good enough for the job.

    And she will remain not good enough even if she votes the right way on the court, or anyway starts out voting the right way. A Supreme Court justice is more than just a vote. A justice is also a voice.

    You’ve appended your original argument, that it’s the president’s right to pick judges (setting aside advise and consent), with the claim that having been a judge puts a target sign on a nominee’s back.

    2 rebuttals to this:

    1. The main objection to Miers is not her lack of judicial experience, but her lack of qualifications as a whole, and an absence of demonstrated capabaility for the job of associate justice.

    2. The president has the overwhelming upper hand on this. If the Dems want to filibuster, they do it at their own political peril, and if they succeed, they are virtually disabled from doing it for the next nominee.

    Quality matters more, and has more far-reaching consequences, than your view of the SCOTUS justice as ideological bookmark admits.

    biwah (f5ca22)

  67. Jim – I don’t think i’ve ever said that one must already have been a judge to make sound Constitutional decisions. Indeed, in comment #35 I said “I absolutely agree that the absence of previous judicial experience should not per se be a bar.” I think non-judges have in the past made fine justices, and I think that in the future they will as well.

    But I do think it’s reasonable to expect that Supreme Court Justices be familiar with the ground in which they will be making decisions. I want a justice who can explain to me the meaning of the due process clause, what the arguments for and against the use of substantive due process are now and have been in the past, and what the threads are which tie them together. I wand a justice who can explain to me what precisely constitutes an establishment of religion, and what the court’s precedents in that area are. I want a justice who can explain to me what the legal reasoning is behind the idea that the commerce clause allows the Congress to regulate activity which might endanger endangered species, and why that reasoning is or is not sound. I want a justice who can look at these issues and impugn or validate the reasoning and not simply the result; and I want a justice who can do these things because he or she has thought about the issues, and reached conclusions on their own, not because they simply read a brief filed by opposing attorneys and/or listened to the advice given to them by a law clerk.

    Previous successful service as an appelate judge is a sign that a potential justice can and will do these things. Lacking that previous experience, I expect a potential justice to give me some other reason to believe that he or she has the intellectual capability to do it. My gripe with Miss Miers is not that she has no previous judicial experience; it’s that her resume gives me no reason to believe that she will be able to do what I expect a justice to do.

    I’m not convined that she can’t do it; I’m merely not convinced that she can. And I’m disappointed that the President didn’t see fit to nominate someone whose qualifications were so clear that there would be no doubt in my mind.

    aphrael (e0cdc9)

  68. More Conservative Miers Reax

    The conservative reactions to the President's pick of Harriet Miers for Assoicate Justice continue to roll in, prime among which is George Will's acerbic column from this morning, which began thusly:

    Senators beginning what ought to be a p…

    Literal Barrage (8e252c)

  69. Harriet Miers, round two

    Harriet Miers is getting a fresh assessment from Don Surber and The American Thinker (among others). Miers’ appointment is ticking off people who usually give knee-jerk approval to the President, such as Bill Kristol, Hugh Hewlitt, and George Will.

    Mister Snitch! (59ce3a)

  70. "Conservative Revolt Intensifies"

    From the Washington Post:The conservative uprising against President Bush escalated yesterday as Republican activists angry over his nomination of White House counsel Harriet Miers to the Supreme Court confronted the president's envoys during a pa…

    protein wisdom (c0db44)

  71. Dear Mr. Patterico –

    Harriet Miers is confirmable for the position that is available. Anymore, we call that the ‘Sandra Day O’Conner Position’.

    The other, more talented, more distinctive female choices are, presumably, non-confirmable.

    I think Bush is displaying a Teddy Roosevelt-esque ‘Do what you can, with what you have, where you are’ sensibility.

    That’s not a bad thing.

    BumperStickerist (009c2f)

  72. Well, not much that we know about her distinguishes her. We are being asked to trust Bush that she will distinguish herself if confirmed. Post-Souter, that trust thing is scary for conservatives.

    Apart from that, she brings unique executive department experience, national-security war-room experience, trial experience, red-state church member experience, and corporate leaderhip experience. Those considerations would fill some vacant view-point niches on the Supreme Court.

    ss (ad4885)

  73. “Can you answer one simple question for me?

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

    Patterico, I’m a fan of your blog, but your question as phrased seems a bit unfair.

    Consider the following absurd example:

    “Placing aside his record of arguing dozens of cases before the Supreme Court, what distinguished John Roberts from other potential candidates?”

    His education? No; there are plenty of folks as educated as he is.

    His judicial experience? No, there are plenty of people with more judicial experience.

    His gender? Nope.

    …and so on.

    Indeed, I would suggest that had Bush nominated Luttig or Wilkinson or any number of others we would have heard from the same bunch that praised Roberts that these men were also highly distinguished, intellectual, etc.

    And most conservatives would have been just as happy (or more so) with those candidates.

    The dismay over the Miers nomination is largely due to the fact that to the fact that she is not a known quantity to conservatives in the way that Roberts was, or Luttig, et al., are. Thus, people tend to think of picks like Souter, the stealth candidate who drifts leftward after confirmation.

    Bush, however, believes she is a known quantity to him. This is different from the Souter case, where GHWB accepted a recommendation from Sununu and Rudman (and Rudman should have been a red flag to conservatives at the time). Indeed, I suspect that Bush picked Miers in part because he does believe that he knows her and her work. (As an aside, I would suggest that George Will’s argument boils down to “Bush doesn’t have the intellect or disposition to pick the right kind of judge,” which I didn’t hear him mention in either election cycle.)

    Thus, to ask the question from the position that her connection to Bush cannot be considered is as unfair as it would be to ask the Roberts question excluding his record of advocacy before the Court.

    Arguably, the cronyism question should be, “Is she qualified in addition to her connection to Bush?” If she is, her connection to Bush probably should not disqualify her. And I think that your question would be more fairly put from that point of view. And that the lack of info for the general public weighs heaviest on this point also.

    Karl (06a05f)

  74. Post-Souter, that trust thing is scary for conservatives.

    And rightly so. Still, FWIW, it’s one thing to trust the President, and another to trust the President trusting somebody else, which was Bush I’s fatal flaw in the Souter case.

    Xrlq (e2795d)

  75. What’s in her favor as a candidate?

    Knowledge, that’s what.

    Everyone seems to think it’s free. It’s not.

    [But that isn’t what I asked. Read the post again. — Patterico]

    Bostonian (a37519)

  76. I think this is a signal that Bush’s personal agenda has shifted … or re-focused. Maybe he is less concerned with the “traditional core conservative” issues like gay marriage and roe v. wade, and is more concerned with a court that will upport the executive in anti-terrorism efforts. I think Bush recognizes that the clash between Western culture and Islamist fundamentalism is a long fight to the death, and we will need the legal tools to wage a long-term fight.

    I don’t believe that at this point in time he gives a squat about gay marriage — just consider his position on the subject during last year’s election campaign. He said he favored a constitutional ammendment. He had to know that it would be damned near impossible to pull it off, but he could always go back to the party’s conservative base and say, “Well, I tried, but we just couldn’t get it through Congress (or get enough states to ratify it.” Being a small-l libertarian myself, I think he took the utilitarian approach of saying what the conservative base wanted to hear, but his true opinion on the subject is that it isn’t the government’s business to get involved.

    As for Roe v. Wade, if the SCOTUS were to overturn it, then what? The “woman’s right to choose” would devolve back to the individual states, and I doubt anything would change once it did.

    The real struggle over the SCOTUS is about the long term conduct of the war. I think that’s the direction Bush is going.

    C-141 Crew Dog (0fc7da)

  77. Bostonian,

    As my appended comment to your comment (that’s the only way I can comment from my Treo) says: you didn’t answer the question in the post.

    I asked: “Placing aside her gender and her connections to Bush, what distinguishes Miers from other potential candidates?”

    Your point about knowledge is apparently a reference to Bush’s knowledge of her — in other words, it’s tied to her connection to him.

    Patterico (4e4b70)


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