Patterico's Pontifications

10/10/2005

Randy Barnett on a Dobson Subpoena

Filed under: Judiciary — Patterico @ 10:55 pm

Randy Barnett asks whether Dobson can be subpoenaed. Though he does not offer a firm opinion, his instinct sounds similar to my position. He has thrown the question open for discussion in the comments to his post.

Remember Who Your Friends Are — It’s Good Advice for Both Sides

Filed under: Judiciary — Patterico @ 10:12 pm

In the debate over Miers, it’s distressing to see how personal some of the attacks have been among pundits and bloggers. Some of my favorite bloggers and I have been both victims and perpetrators of this — on both sides. No wonder lefties like Kevin Drum are tempted to “get out the popcorn and cheer the prospect of conservatives tearing each other apart.”

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Miers Meltdown? Or a Big Nothing?

Filed under: Judiciary — Patterico @ 8:59 pm

Polipundit, a former Miers supporter, now opposes her nomination:

Harriet Miers is Alberto Gonzales in a dress. I would not support the confirmation of Gonzales; so why should I support the confirmation of Miers?

Tom Maguire said today, I believe for the first time, that he is against Miers:

For myself, my support foundered on the cronyism question. If Hillary nominated her best friend from college, I would not care what her qualifications were, and I feel the same way about Miers. I don’t want a merely a reliable vote – I want a solid conservative judge who can articulate the issues and do us proud.

Bostonian, a frequent commenter on the blogs, has decided to oppose Miers:

Over the weekend, I’ve decided that I don’t support the Miers choice. It sounds like she hides her own opinions and tries to get along with everyone. We don’t need a baby-splitter on the Supreme Court.

I found this especially important because Bostonian is 1) a fierce Bush supporter who still believes his nomination was well-intentioned; 2) a former liberal — often those are the staunchest of conservatives; and 3) not a blogger, but rather an reader — a genuine member of the informed public, and the type of person we are trying to reach. She is not someone with a distrust of Bush to begin with, and I think her change of opinion is significant.

It’s a limited sample. It’s an unrepresentative sample. But is it reflective of something bigger? Perhaps.

At the Corner, John Podhoretz says:

It’s getting worse. The White House needs to know this. Really. It’s getting worse. Trust me.

And Instapundit wonders about a “Miers meltdown.”

It will be interesting to see the polls in the coming days, to see whether there is really something going on out there, or not. One factor: whether the possible problems described by John Fund in this interview will be seen as meaningful.

I still have a hard time believing that the nomination will be withdrawn or defeated. But we can hope.

UPDATE: Add Dinocrat to the list, and I am more pleased than I can say that Dinocrat has credited an argument of mine with changing his mind. That’s how you do it, folks: one person at a time. That fact alone makes my 35 36 posts on the issue seem worthwhile.

Now, if I could just convince a Senator . . .

UPDATE x2: Also, there is this news that 27 Republican Senators either “have publicly expressed specific doubts about Miss Miers or said they must withhold any support whatsoever for her nomination until after the hearings.”

John Fund Changes His Mind on Miers

Filed under: Judiciary — Patterico @ 2:31 pm

John Fund has changed his mind about Harriet Miers. His piece reinforces everything I have been saying here for days. His article is too good to excerpt with justice, so read it all. But I’ll put my favorite parts in the extended entry, to whet your appetite.

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Analyzing Paul Mirengoff’s Piece — and Announcing My Position on Miers

Filed under: Judiciary — Patterico @ 2:23 pm

As you know, I’ve been looking for a convincing argument that I should support Harriet Miers, or at least withhold judgment. And I keep coming up empty. Virtually every brief for Miers I have read so far contains off-putting arguments that have me shaking my head right away.

Until now.

With Paul Mirengoff’s op-ed in the Weekly Standard, titled Holding Our Fire–And Our Breath, I have finally found an argument that is worth serious consideration.

Am I convinced? As I began to write this post, I wasn’t sure. I am now.

In the extended entry, I walk you through the piece, sharing my reactions as I go. By the end, you’ll know how I feel about whether the Miers nomination — as flawed as it clearly is — should be supported or rejected by conservatives.

This is a bit of a long post, but I think it’s worth your time. Mirengoff’s piece is something you need to read anyway. It’s really excellent. And I think my thoughts in reaction to it are worth sharing. If I didn’t, I wouldn’t have spent so much time typing them up.

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Miers: A Loner Lacking in People Skills

Filed under: Judiciary — Patterico @ 2:00 pm

Miers supporters have been defending her lack of overwhelming intellectual firepower by arguing that the Court needs more Justices with people skills. For example, Beldar says:

Dealing with partner-level lawyers requires tact, creativity, flexibility, judgment, listening and communication skills, the learned or intuitive ability to broker compromises, and finally (but not least importantly) a backbone of steel and the ability to display and occasionally use one’s own teeth and claws. The “people skills” expected of a managing partner, while perhaps particularly important for a Chief Justice in the context of the Supreme Court, are not unimportant for other Justices. The Chief Justice, simply put, has but one vote, and he is not always himself in the majority.

Defenders argue that the Court has been too splintered on too many decisions in recent years. What the Court needs, the argument goes, is a non-scholar with people skills, to bring everyone together.

The problem with this argument is that Miers hasn’t demonstrated much in the way of “people skills,” if you actually listen to people who have dealt with her on a professional level.

Here is a Dallas Morning News profile of Miers from July 1991, when she was serving on the Dallas City Council. It opens:

Depending on who is talking, there seem to be three women named Harriet Miers in Dallas.

One is the hard-nosed career lawyer, a partner in the Dallas firm of Locke Purnell Rain Harrell, who has just become the first woman president-elect of the State Bar of Texas. This Harriet Miers is a commercial litigator with a reputation for being tough, smart and shrewd. She is a tireless champion of the law, one who yearns to set society’s wrongs aright.

Another Harriet Miers is finishing her two-year term as an at-large member of the Dallas City Council. To her colleagues, she often comes across as dour, cold, uncompromising and uncommunicative — a maverick and a cipher.

And then there is the Harriet Miers her friends and family know, the one who seldom reveals herself to fellow council members. This one is warm, sensitive, humorous, loyal, the favorite aunt of everyone’s children. She is a model of self-sacrifice, a woman whose moral code will not allow her to act against her conscience.

Which is the real Harriet Miers?

The answer appears to be: it depends on the context. But in the work environment of the City Council, the quotes are not encouraging:

The vast difference in perception is most marked when Ms. Miers’ council career is the subject.

“I know her less today than I did the day after she was elected (in 1989),” says Jerry Bartos, a City Council colleague who frequently has been Ms. Miers’ opponent. “I’d say she is the consummate loner.”

“She’s independent. She’s a thinker, not a clone,” counters council member Al Lipscomb, who also has had run-ins with Ms. Miers.

“She’s a very independent thinker,” echoes Mayor Annette Strauss. But, in acknowledging Ms. Miers’ “loner” status, the mayor gives a Zen-like answer: “It is difficult — because the right answer is not right for everybody.”

. . . .

To some, however, she seemed to play the role of devil’s advocate. “There was no communication, no coalition,” Mr. Bartos says, citing Ms. Miers’ coolness toward fellow council members. “In politics, you have to build coalitions, and you have to communicate.” His blunt assessment of her effectiveness on the council: “Zero.”

Mr. Lipscomb says, more diplomatically, that Ms. Miers’ “toughness might have repulsed some of the men” on City Council. “She picks up on details. Nothing gets past her,” he says. “She’s not a person that you can predict — but that is her right.”

Sure, some of these people evidently were on the opposite side of the issues from her — but isn’t that when “people skills” become most important? The idea is to avoid alienating those people, so that you can persuade them to vote with you in the future, when your interests might line up.

Nobody would have called Bill Brennan a loner — not even his ideological opponents. Conversely, even the prickly Nino Scalia gets along fine with Thomas most of the time — but what good does that do?

The unpredictability mentioned by Mr. Lipscomb appears to have translated into indecisiveness and wavering:

Ms. Miers has a reputation for studying issues carefully before she votes. But she has switched her stance on some crucial issues, and council insiders perceived her moves as indecisiveness. Such key votes included the city’s stand on the Wright amendment; the public-housing desegregation lawsuit settlement; and Dallas’ recent, bitter redistricting battles.

But surely she has changed since 1991? It doesn’t sound like it from this August 2005 BusinessWeek profile:

Despite her influence, friends say Miers is shy and uncomfortable with small talk. Several colleagues from her days on the Dallas city council describe her as “a loner.” Democrats complain that Miers did not visit the Senate Judiciary Committee’s top Democrat, Patrick Leahy of Vermont, during her first six months on the job. After learning of the perceived slight, Miers trekked to the Hill in late June to meet Leahy and Senate Minority Leader Harry Reid (D-Nev.).

Folks, if you have signed on to this nomination because you think we finally have a Justice with people skills, I think you’re backing the wrong horse. Her friends apparently like her a lot, but she doesn’t look likely to become the Bill Brennan of the right, forging coalitions and building majorities.

My guess: she’ll become yet another Lewis Powell or Sandra Day O’Connor, finding a “middle ground” full of multi-part tests with subjective factors — test that are fully satisfactory to nobody but herself, but which garner 4 votes for this section and 4 votes for that one.

It’s only a guess. But it’s a guess based on the facts.

Merit vs. Knowing the Boss

Filed under: Judiciary — Patterico @ 10:17 am

Everybody knows the kiss-ass down at the office. He’s the guy who slaps the boss’s back and laughs at his jokes. He goes to lunch with the boss. He goes on fishing trips with him. He’s not as good as Mike, the guy two offices down who always gets his work done and does it better than anyone else. But the kiss-ass gets promoted over Mike every time.

Most people I know and respect would prefer someone like Mike over someone like the kiss-ass. They understand that hard work and merit should be rewarded over proximity to (and good relations with) the boss.

There are plenty of people who take the opposite point of view, of course. There are a lot of aspects to merit, they’ll tell you. Good interpersonal relations are important — and why shouldn’t that be true with the boss as well? Sure, Mike is a hard worker. Sure, he’s never been late once in 28 years. Sure, he keeps his head down and does his job better than anyone else. But that’s not all there is to getting ahead.

When you point out that the kiss-ass would never be promoted were it not for his personal relationship with the boss, and doesn’t do anywhere near a good as job as Mike, it has little effect. The response is usually some variant of: tough luck. Life isn’t fair. It’s the boss’s decision. That’s the way it is.

You’ll find people who tell you things like that. But I tend not to respect these people. Nor do I respect the bosses of this world who pass over the Mikes of this world.

That is part of why I am so annoyed to see similar types of arguments made on behalf of Harriet Miers. We can have confidence in her because the president knows her, we’re told. That’s how we know she won’t be another Souter.

Meanwhile, the Mikes of this world, including the Mike Luttigs and the Mike McConnells — people who have kept their head down and worked to become the best in their fields — those guys are getting screwed. The message to them is clear: you should have found a way to hang out with the boss more.

This is not to compare Harriet Miers to the kiss-ass in my example. By all accounts, she is an extraordinarily hard worker. She is not the kiss-ass down at the office. (Though she did call the president the most brilliant man she has ever met. Maybe she really believes that, which I’d find scarier still. I’m hoping she is just a kiss-ass.) That’s not the point.

The point is not her behavior, but that of Bush in picking her. Bush is the glad-handing boss who picks his lunch pal over the best-qualified people. Sure, these bosses can try to justify such decisions by saying that they know their lunch pals better. But that’s not the way it should be — and observing that that’s the way it is, doesn’t make it right.

Merit should matter. The message sent with the Miers nomination is: it doesn’t. It’s all about who you know. And it’s sad to see how many people are comfortable with that, when they wouldn’t be comfortable seeing it happen to Mike down the hall.

Picking a Fight with Your Own Party is Not Top-Notch Strategy

Filed under: Judiciary,Politics — Patterico @ 8:52 am

This comment by Kevin Murphy deserves its own post:

So, let me get this straight: Bush wanted to avoid a fight with Democrats, so he picked one with Republicans?

I keep hearing that Bush made a good move by dodging a fight with Senate Democrats. Those making this claim need to open their eyes and look at the fight he picked with major elements of his own party.

This wasn’t great strategic thinking any more than Harriet Miers is the best pick for the Court.

UPDATE: Black Jack notes in the comments that it would be more accurate to say that Bush “blundered” into this fight. While I wouldn’t put it past him to deliberately choose alienating his base (which always forgives him) over provoking Democrats, I do tend to think that this was a blunder. I didn’t mean to suggest otherwise in the post. The point of the post is to respond to those who think it was a brilliant strategic move.


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