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.

15 Responses to “More Random Miers Thoughts and Links”

  1. Is it just me or is there a little inconsistency between paragraphs 5 and 6? Personally, I think Bush would have nominated Miers whether the filibuster deal had been done or not. The problem here was not anything the Senate might or might not have done. The problem here is solely the responsibility of Bush 43.

    Steve Bainbridge (e2330b)

  2. It’s an open question what would have happened with the nuclear option. We can’t rule out the possibility that Bush was scared of a fight because he didn’t know if he’d win. But we’ll never know now.

    That doesn’t mean I have respect for the decision he made or the way he went about it.

    Patterico (4e4b70)

  3. Cronyism does not imply stealth candidate.

    Meirs is wrong for all the right reasons–nothing to do with a filibuster or lack therof.

    If Bush was concerned with a filibuster, he could have nominated Clements.

    Paul Deignan (d2fd7b)

  4. re: Bush’s ideal Supreme Court — the guy left out the picture of Bush’s favorite horse.

    PrestoPundit (c8886f)

  5. I was REALLY squeezing for Bush to nominate Janice Rogers Brown or Miguel Estrada (preferably JRB though).

    AMC (08180f)

  6. […] Or as Patterico puts it: 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. […]

    PrestoPundit » Blog Archive » HARRIET MIERS (d881ce)

  7. It’s “not his style” to make this decision intelligently.

    He doesn’t make the decision in the same way a lawyer would. It’s a classic b-school approach, not a law school approach. I’m not convinced, however, that one needs to be a lawyer in order to make important decisions about lawyers. Whatever it was that prompted Dubya to decide to promote Roberts to the CJ spot was some kind of gut instinct. I thought it was a really bad idea from a tactical, political point of view — until I listened to the confirmation hearings, when it began to seem like a really brilliant idea, from both tactical and strategic points of view. I misunderestimated him.

    Dubya doesn’t think lawyers are the most important people in the universe. He doesn’t think he needs to be a lawyer to be President. Enormous as my own ego is, and my pride in our profession, I think he’s probably right about those things.

    Beldar (3ba93f)

  8. Regarding your comment #5 above on Beldar’s post, are you really saying Bush is stupid and lazy?

    transplanted texan (f9bdf6)

  9. A few comments of info, FWIW

    Hugh Hewitt thinks she is a good pick, although he wanted Luttig or McConnell.

    Jay Sekulow thinks she is a good pick, from working with her on various SCOTUS cases.

    But all of the lawyers (and some non-lawyers) who read this blog know more about these things than I do. I would have loved an “In your face” kind of appointment like Estrada Or Edith Miller (which I think would have been anathema to the left- from what I understand).

    But I am not a politician, probably would not be a good one. The Democrats (as a whole, and few give me reason to doubt otherwise) will do what they think is best for themselves, right or wrong, honest or not. The best Bush could do is to either appoint someone (that is “good” by conservative standards) where what the Dems think is best (for them) actually furthers Bush’s cause, or someone that will drive them nuts in a way that is plain to the American people. But they’ve already been nuts about so much stuff it is wearying.

    Perhaps we could all agree with the judge in “Alice’s Restaurant” (but he would be quite old by now).

    MD in Philly (b3202e)

  10. Perhaps the outrage on the right will be strong enough that the Dems will sense she can be defeated.

    If that were the case, my guess is they wouldn’t be able to resist handing the hated ChimpyMcBushieburton a defeat, even though she may be to their liking as a nominee.

    I’ve been trying to like this nomination for 24 hours now and its not working.

    Dwilkers (a1687a)

  11. Obviously, Bush is trying to firmly establish the principle that any nominee is entitled to be confirmed, not just those who are as exceptional as Roberts.

    If Miers is confirmed, its hard to see how any other nominee could be opposed as not being qualified!

    Al (758aaa)

  12. “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.”

    I wonder why people are acting surprised by this. He has been touting his lack of curiousity and intellectual interest. No wonder the current republican party repels academics. Thoughtfulness is vilified!

    actus (ebc508)

  13. Levin says Miers was picked only because she’s a she – and – she’s a long-time Bush friend.

    Not necessarily. Miers’ defenders are probably right when they say she likely shares Bush’s philosophies. (Given their long acquaintance, would she have been picked otherwise?) As you describe that outlook in you point #2, however, that would be a very bad thing.

    Some who disagree with the pick say it was made because Bush is running from a fight with Democrats. They may be wrong about this. Bush may be running from a fight with conservatives. Miers would be a fine bipartisan pick by a GOP president who believes in big-tent Republicanism and therefore needs to defeat his conservative base in a way that delays discovery of what he has done until too late.

    Lastango (f91a59)

  14. “Miers would be a fine bipartisan pick by a GOP president who believes in big-tent Republicanism and therefore needs to defeat his conservative base in a way that delays discovery of what he has done until too late.”

    A non-crony with Miers’ qualifications would be a fine bipartisan pick.

    gs (0cd0ac)


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