Patterico's Pontifications


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.

Paul builds credibility for his ultimate conclusion by rejecting the unconvincing argument that we should simply trust Bush’s judgment:

THE DISAPPOINTMENT many conservatives feel over the nomination of Harriet Miers to the Supreme Court will not vanish unless and until Miers begins writing solid conservative Supreme Court opinions. In the absence of such opinions, there is little reason to believe that the Miers nomination fulfills President Bush’s stated desire to nominate Justices in the mold of Scalia and Thomas. In fact, we cannot even be highly confident that Bush has nominated a reliably conservative vote, as opposed a swing vote in the O’Connor or Kennedy style.

Some dispute the latter proposition. They argue that Bush is in the best position to know what kind of Justice Miers will be, so that if he assures us that Miers is a judicial conservative, we have no reason to doubt his word.

This argument fails to instill great confidence. A president usually deals with his White Counsel at a very high level. It’s not likely that Bush (a non-lawyer) and Miers have had in-depth discussions about constitutional law. Thus, while Bush might be in a position to know very generally that Miers is a conservative as opposed to a liberal or a centrist, he’s not likely to know whether she has a solid conservative judicial philosophy of constitutional adjudication, much less what she thinks about specific constitutional issues. It’s also disconcerting that Bush has defended Alberto Gonzales, Miers’ predecessor as White House counsel, from conservative critics, apparently including him among those who “will strictly interpret the Constitution and not use the bench to legislate from”–essentially the same endorsement he now has given Miers. Given Gonzales’s record, few conservatives regard him as a reliable vote over the long haul.

Precisely. Bush forfeited any valid claim to blind trust in his pick with his serious consideration of Gonzales. Paul builds further credibility by acknowledging that Bush could have done better:

In any case, conservatives justifiably feel disappointed that they should have to rely solely on the president’s legal and psychological acumen as they try to become comfortable with his nominee. There were at least two dozen candidates, including women, African-Americans, and Hispanics, whose conservative bona fides would have been apparent to the naked eye. Bush’s rejection of these candidates in favor of Miers feels like cronyism or political weakness.

Try both.

Paul next moves to the question: now that Bush has stuck us with this problem, what do we do about it? That, after all, is the real issue. He begins by noting his opinion that there is a real possibility Miers could be defeated:

AS THE CONFIRMATION PROCESS UNFOLDS, however, the issue for conservatives no longer will be whether we are disappointed, but rather whether Miers should be confirmed. The question is more than academic–for it is possible that without the support of conservative Senators the nomination will fail. To be sure, some Democrats, including Minority Leader Reid, have made favorable utterances about Miers. However, at her confirmation hearings, Miers almost certainly will not give the sort of assurances on Roe v. Wade that Democrats will demand. And unlike with Roberts, Democrats will not feel constrained by public opinion to vote for Miers–she lacks both Roberts’ record and his charisma. The only pressure Democrats will feel to vote for Miers is the sense that Bush might nominate someone worse from their perspective. But the opportunity to deal Bush a huge defeat, coupled with pressure from the abortion lobby, may prove irresistible. Thus, a coalition of Democrats and conservative Republicans could possibly sink this nomination in what could be the oddest confirmation battle in memory.

I find it implausible that Miers could be defeated, but I suppose it’s a possibility, however unlikely. Paul now says:

On the currently available information, conservative Republican Senators shouldn’t go there.

Since Paul has made such a compelling and credible case up until this point, I find myself interested. I’m sitting up in my chair and paying attention. So far, everything Paul has said is spot-on. Yet he still says we should support the nomination. I’m interested — aren’t you?

Two questions control the confirmation issue: Is Miers qualified and should she be rejected on ideological grounds? At this juncture, neither question strikes me as very close. Miers has achieved just about everything a lawyer can accomplish–head of a substantial law firm, head of the state bar association, and top legal adviser to the president. She also has a background in local politics. Only by insisting that a Supreme Court nominee possess either judicial experience or a portfolio of scholarly writings can one pronounce Miers unqualified. But this has never been the standard, and it’s not clear why (ideological considerations aside) Republicans should invent a new standard with which to deal a blow to a Republican president.

On the merits, moreover, judicial experience or legal scholarship should not be a requirement for the Supreme Court Justice position. This background may well be highly desirable, and not just for purposes of intelligence gathering about a nominee. Yet some knowledgeable commentators think it’s highly desirable for some justices to possess a more practical, less rarified background. Reasonable minds can differ, which suggests that the president should have the option of appointing outstanding lawyers with no judicial or scholarly experience.

This isn’t a bad argument. Miers’s qualifications are in many ways comparable to those of some other Justices who have served on the Court. Many have argued in recent days that it would be a breath of fresh air to have someone on the Court who is a less academic type. According to the often-suspect Newsmax (h/t Big Lizards), even Justice Scalia has recently said so.

In light of this history, let me give an answer to the question: why should Republicans apply a “new standard” on qualifications?

First, understand where I’m coming from. I just don’t think we can afford to take chances any more. Republicans keep winning elections, and keep getting erratic results on our Justices. For every Scalia, we get a Kennedy. For every Thomas, we get a Souter. We can’t continue going down this road.

With that understanding, when I look back at the Justices we’ve had, I’m looking at the characteristics that separate the good from the bad. And I’m unable to find a Republican-nominated judge who was a strong and principled judicial conservative who was as lacking as Miers is in familiarity with issues of constitutional law.

So, while Paul separates the issue of qualifications from that of ideology, I see them as connected, to a degree.

I don’t want to overstate the case. This is not to say that you have to have been a judge for years, and it’s not to say that those who have been will be conservative. Being highly qualified in an academic or intellectual sense doesn’t make you a judicial conservative. And the connection I’m making is not crystal-clear.

But look at the history.

Most of the Justices from the past few decades have been quite poor, in my opinion. Scalia and Thomas are the major exceptions, and they were judges on the D.C. Circuit before taking their seats on the Supreme Court. Rehnquist, while not as solid as those two, was probably the third best. He was not a judge before joining the Court, but he had some relevant experience and qualifications: he was first in his class at Stanford Law School, and clerked for Justice Jackson on the Supreme Court.

If someone could show me a recent example of a great Supreme Court Justice with no judicial background and no background clerking for the Supreme Court, I might feel differently. But you can’t.

Some may argue that Clarence Thomas wasn’t on the D.C. Circuit for that long. Indeed, that is the best argument against my position. The unqualified success of the Thomas nomination is one of the best arguments that Miers supporters have for their hopeful outlook. But my response to that is: put Harriet Miers on the D.C. Circuit for a year, and let’s look at her opinions then. At least we’d have some kind of track record, albeit a limited one.

Without that background, Miers is a candidate whose background is like that of Lewis Powell, Byron White, or Sandra Day O’Connor. I consider Powell and O’Connor to have been weak Justices, overly fond of multi-part balancing tests and splitting the baby. And White was too erratic, and far too prone to making decisions based upon personal views rather than based on a consistent view of the law. Granted, he was one of only two dissenting votes in the original Roe decision. While I respect that fact about White, he is nevertheless not my idea of the ideal Justice.

Again: I just don’t think we can afford to take chances any more. We’ve been burned too many times.

So: even if Miers-style qualifications were enough in the past, there is a reason to change that now: because something has to change.

But my argument has strayed into questions of ideology, and Paul hasn’t addressed those yet. He does in the next paragraph:

The argument that conservatives should reject Miers because she doesn’t seem to be the right kind of conservative, and may not be a conservative at all, seems problematic as well.

Ah . . . the meat of the argument! Why is that?

For the past four years, conservatives have argued that ideology does not constitute a proper basis for voting against a president’s qualified nominees. We have deplored Democrats who voted against qualified mainstream conservatives. We would have become apoplectic had Sen. Arlen Specter not supported a conservative nominated by his party’s president. On what principled basis, then, can conservatives now vote down a nominee who is either a moderate or, more likely, some sort of a conservative? Miers plainly is not “outside the mainstream.”

As some have put the same argument: how can a Senate Republican who voted for Ginsburg possibly vote against Miers because he thinks that she’s not conservative enough?

That argument has superficial appeal — which evaporates the moment you stop and think about how utterly insane it is. Are you telling me that if George W. Bush were to nominate someone as liberal as Ruth Bader Ginsburg to the Court, conservatives would have to vote for that person?

Conservatives voted for Ginsburg because they recognized that elections have consequences. When the public votes for a President, everyone understands that one of the things they are doing is voting for Supreme Court nominations. To oppose a nominee because their ideology lines up with the President’s, but not with yours, is to deny the effect of the voters’ choice.

It’s a far different issue when a President promises to choose someone with a particular judicial philosophy, and then nominates someone who shows no sign of being such a person. Voting against such an individual would not be denying the effect of the voters’ choice. Senators owe an independent duty to their own constituents as well as to the voters of the country as a whole. If they believe the voters’ message is not being heard by the President, and the Constitution gives them a role in helping that voice be heard, they do not step out of line by voting against the President’s pick.

Say you’re a Senator. If the President ran for office on the strength of a promise not to raise taxes, and now urges Congress to pass a tax hike, do you owe that decision unquestioning deference because he’s the President, and he got elected? No, for two reasons: 1) that’s not what the voters voted for, and 2) you owe a duty to the people you represent as well.

In the context of judicial nominations, I believe the President deserves substantial deference in such matters. The choice is his to make. But it is also the Senate’s to accept or reject, and Senators should not feel constrained in the slightest by the fact that they voted for someone like Justice Ginsburg, when a Democrat President was in the White House.

However, the shrewdest conservative legal thinkers have eschewed the “mainstream” test. They tend to ask not whether a nominee is outside the political mainstream but whether she is faithful to the Constitution as written. Since judging should be about fealty to the law, not substantive political outcomes, this formulation is sound in theory. And it has the added virtue of enabling conservatives to maintain a principled opposition to mainstream liberal, moderate, and maybe even insufficiently conservative nominees.

This is how I feel, which lines me up with the “shrewdest conservative legal thinkers” — even if I’m not one of them.

But avoiding a political phraseology is not the same thing as avoiding politics. And the politics of the confirmation process tell us that a standard under which conservative senators vote against nominees in, say, the Sandra Day O’Connor mold, is a standard that might well lead non-conservative senators (that is to say a majority) to vote against the next Antonin Scalia.

Here, Paul is saying that, even though there is a genuine distinction between political ideology and the ideology of judicial conservatism, the public isn’t going to understand this distinction. As a result, voting down Miers will provide a precedent for rejecting conservatives in the future on the basis of political ideology.

This strikes me as naive. Does Paul think that Democrats are going to vote for the next Antonin Scalia? The halcyon days of someone like Scalia sailing through the Senate with overwhelming majority support are over, my friend. That all ended with the defeat of Robert Bork in 1987. The idea that we need to cave on this nomination now because fighting it would set a bad precedent is reminiscent of the arguments used by those who supported the Gang of 14 deal.

I don’t find this a convincing argument. True conservatives should not be afraid of their own shadows. We are not pursuing political ends, and we shouldn’t surrender our principles now on the fear that Democrats are going to twist our position in the future and use it to vote against staunch judicial conservatives. They’re going to do that anyway. Let’s get the good people in now, while we have a chance.

Unfortunately, Paul’s piece is drawing to an end, and it is even less convincing there:

In the case of Harriet Miers, though, we are not even talking about someone in the O’Connor mold–we are talking about someone who might be another O’Connor but is just as likely to vote with Scalia in the vast majority of big cases. In this situation, it seems imprudent to blow up the confirmation process—and possibly the Bush presidency and the Republican party–to block her nomination. Thus, conservative senators should be prepared, barring new and damning information, to vote in favor of Miers. The rest of us should be prepared to hold our breath until we start seeing what she writes.

There are too many unsupported assertions in this paragraph. We have no way of knowing whether Miers really will vote with Scalia in the big cases. And it is pure speculation to posit that blocking her nomination will “blow up” the Bush presidency and the Republican party. If Senators reject Miers as someone not supremely qualified for the position, and demand someone who is truly top-notch, it may be a setback for Bush — but it could actually strengthen the standing of Senators in the eyes of a public that is wondering whether Miers got the nomination because she is close with Bush.

And so we’re done. I can’t imagine anyone taking a better shot at persuading me than Paul has done in this piece. I am ready to declare my position.

Unless something changes drastically, I will be opposing the Miers nomination.

This position is not set in stone. If something emerges before or during the hearings to persuade me to change my mind, I’ll be open to it. But I think it extremely unlikely that we’re going to learn anything meaningful between now and the time to vote. And I think we need to put pressure on the President (and Miers herself) to withdraw the nomination, to avoid the added embarrassment that would likely be caused by a defeat in committee or on the Senate floor.

I don’t think this is going to make a difference, by the way. I have very little doubt that she will be confirmed. But — absent some unexpected surprise — she’ll have to do it without my help, and indeed in the face of my active opposition.

UPDATE: Ramesh Ponnuru makes a similar point here.

UPDATE x2: Jeff Goldstein has more.

UPDATE x3: Thanks to Instapundit for the link, and welcome to Glenn’s readers! I have been blogging the Miers nomination for the past several days; for more, go to my main page, or consult my judiciary category. Some of my posts are short — I promise! My lead post today elaborates on why it would be a disaster to have another Justice in the mold of Lewis Powell. If you haven’t read The Brethren before, the quotes will stun you.

64 Responses to “Analyzing Paul Mirengoff’s Piece — and Announcing My Position on Miers”

  1. Fine, Patterico–but did you ever find
    out whether Judge Ito is on the 4th
    floor or the 13th floor?

    Justice Frankfurter (2dcd84)

  2. 9th.

    Patterico (4e4b70)

  3. I’ve been arguing much the same thing: why do we fear the debate so much? Make the case that a Justice is supposed to act in a particular way, and that we want proof not of how potential justices will vote, but of rather how they think about matters juridical.

    You’re precisely right to note that Bush gave us the same assurances about Gonzales. And yet, almost NOBODY on the conservative side believed him, because we had enough to go on to know that Bush was, well, mistaken.

    And you’re also right to note a spirited converstation within the conservative movement over the kinds of judges we’d like to see is not likely to cause the death of the Republican Party. After all, when the alternative is Hillary or John Kerry, how many conservatives are likely to cross over — or even stay home, given all that is at stake.

    My biggest concern, should Miers withdraw her selection, is that Bush will put up Gonzales in her place. Then we’ll be having this debate twice.

    Jeff G (302dff)

  4. So basically the short version is “Drink the Kool-Aid”.

    Still, much of that article is simply wrong. At least what we know about her views. Chances are very good she has views towards things like the President. And so it’s pro-affirmative action and pro-Kelo. The only real difference is see seems to be pro-gun, unlike this administration.

    Harriet Miers is just Alberto Gonzales in a dress.

    [You didn’t read it all, did you? Hint: you got my position backwards. — Patterico]

    JeremyR (55e347)

  5. Im unable to find a Republican-nominated judge who was a strong and principled judicial conservative who was as lacking as Miers is in familiarity with issues of constitutional law.

    When did you ditch Edith Jones?

    [I meant Justice, not all federal judges. Supreme Court Justices are the ones with more unfettered power, and are more subject to making result-oriented decisions. — P]

    Beldar (22d2bb)

  6. The common confusion seems to be that Supreme Court justices are something like glorified appeals court judges — all it takes is some legal experience and anybody could do it. Nothing could be farther from the truth. Justices of the Supreme Court cannot avoid bringing a theory of how the American system of govenment should work with them — nor can they avoid applying that theory in their decision making process, no matter how incoherent, un-thought out, or ill-formed that theory of governance might be.

    Law school doesn’t prepare you for this, legal practice doesn’t prepare you for this,and neither much does time spent as a partisan politician. Conservatives believe that a well considered and historicall sound theory of the American system has a place for a Constitution and a Supremem Court only on the assumption that the Constitutional founding give some special legitimacy to the document we govern ourselves by.

    The problem with the Supreme Court of the past decades is that those appointed to the court have lacked competence when it comes to conceiving the role of the Court and the Constitution in the American system. In short, they’ve been legal hacks lacking all Constitutionl understanding.

    The expectation of those opposing the Miers nomination is that Miers has all the makings of a competent appeals court judge, but as a theorist of the American system and the Constitution she is overwhelmingly likely to be just one more legal hack without deep grounding in any well thought out understanding of the principles of the free society given to us by the Constitutional founders.

    PrestoPundit (c8079d)

  7. The halcyon days of someone like Scalia sailing through the Senate with overwhelming majority support are over, my friend. That all ended with the defeat of Robert Bork in 1987.

    Good point, but one that may have undermined another point you made in another thread when you argued that President Reagan should have appointed Robert Bork in 1981 – thereby denying the gig not only to Bork himself (albeit by a narrower margin), but possibly to Scalia, as well.

    Xrlq (6c76c4)

  8. […] in this thoughtful and detailed post. No responses to ‘Patterico comes out against the Miers nomination’. RSS feed for comments and Trackback URI for ‘Patterico comes out against the Miers nomination’. […]

    Confirm Them » Patterico comes out against the Miers nomination (e203ab)

  9. So much hand-wringing, drama and consternation here…

    Well, one of the advantages of being a liberal is recognizing that “I’m not a member of any organized political party, I’m a Democrat!” With that in mind, disagreeing with a Democratic President for me is usually a lot less traumatic. (Of course, that probably helps explain why we lose elections too.)

    Nevertheless, hats off to you putting your principles above your party. It shows that you have integrity.

    Tillman (1cf529)

  10. I think there’s another good arguement for voting against Miers. She appears to be the exact type of crony that the Federalist warned against. All we know about her judicially is that she will vote in a way that the President and Vice-President assure us will be good. Aside from being Bush’s lawyer she would have no hat to peg to hang her hat on (unlike even Gonzalez who actually served on the TX Supreme Court). The crony charge, coupled with her poor committee performance, should be an easy indication that she is an unqualified crony. Hopefully Republicans and Democrats will unite in opposing her because of that.

    Now on the strategy, I don’t think she’ll withdraw unless Bush tells her to. Reading her quotes from Frum’s diary, it is clear this is the kind of woman who thinks she’s better than us and is looking out only for herself. Why wait until ’88 to change her party affiliation?? True believers in the south were doing that 8 years earlier. Only once she saw the winds change did she jump on the bangwagon. This is the second coming of O’Connor.

    Another blog also said that Condi suggested her because she would uphold affirmative action. And since the Bush administration has been pro-affirmative action, and pro-illegal immigrant, we can only assume that she will continue these trends as well on the court.

    Very bad. Very bad. Bush blew it big time and I hope he can be the big man he thinks he is and make up for his mistake. Unless of course he doesn’t think he blew it, in which case we’re in even more trouble than we realize…has anyone considered that maybe Bush doesn’t want another Scalia on the court?

    Ezra (8dd388)

  11. Unbelivable. I held out hopes for you. I can understand the outrage and opposing the President if it will help you reach your goal. It won’t and most of you refuse to identify the source of the problem.

    The Senate Republicans created this and our own media voices have finished us off. In the real world this is “throwing out the baby with the bathwater”. You all have accomplished what the Democrats could not. We are now split and you will NEVER get your candidates on the court. The only thing we had going for us with our wimpy Senators was the ability to stay together.

    This is the perfect example of Kerry’s “nuance”. Do any of you realize this ceased to be about Miers several days ago. One thing never gets discussed that I think should be pointed out. Many make the argument that Bush broke faith with his base with this nomination. Really. I say we voted for Bush and his base is not just those of you that oppose his choice. Many will not understand why you have decided to stand against the rest of us. The Democrats are cheering. The base decided to split the base.

    owl (7f068a)

  12. Hey owl, we ain’t exactly getting our candidates on the Court now, are we?

    I do not support the Republican Party simply because it is the Republican Party. Political victory is not a value in and of itself. I gain nothing just because the President calls himself an R instead of a D. Politics is a means to an end, and to me, that end is the appointment of good solid strict constructionists to the bench. If the GOP can’t achieve that with a Republican President and fifty-five Republican Senators, what good is the GOP? GOP power is at a high water mark… if right now isn’t a good time to appoint the Luttigs, the Garzas, the Kozinskis, the Browns, when is a good time? Never?

    I’m so so sorry that you’re unhappy that those of us who supported the Republicans because we were dumb enough to believe the President when he said that electing him would give us more Scalias and Thomases are disenchanted with the GOP. But if the GOP ain’t gonna give me what I want, I got no use for the GOP.

    And I’m so so sorry if “many will not understand” why we have decided to stand against the rest of you. If you were paying the least bit of attention, you’d understand.

    And don’t give me this garbage about how now we will NEVER get our candidates on the Court. The Miers nomination makes it less likely that we’ll ever see a real constructionist nominated. See here, near the end.

    Voice of Reason (766133)

  13. No Owl, you don’t understand. If this issue is not worth fighting for than nothing is.

    Besides, the argument that “you split the base” is silly. I could just as easily say that Bush split the base by nominating Miers.

    Finally, I don’t really see non-core Republicans even caring about this issue. The base is not the same as the rank and file. The rank and file falls into line by definition, while the base pulls the party in their direction.

    Ezra (8dd388)

  14. Bravo P.! Not just your conclusion (which I agree with), but your analysis is spot on. This was the best the pro-Miers people have, and although this is one of the few serious agruments I have seen, it is still quite unconvincing.

    Justin Levine (f341b1)

  15. The Senate Republicans created this and our own media voices have finished us off. In the real world this is “throwing out the baby with the bathwater”.

    Ummm…isn’t the “baby” you’re trying to save the GOP majority–which means that you must argue on behalf of those “Senate Republicans [that] created this” in order to keep that majority?

    Christopher Cross (354863)

  16. I’m operating on the theory that the current republican movement is at a high water-mark, and by the time the next opening comes up, we will HAVE to take a moderate like Kennedy. This is our best shot and Miers isn’t it.

    Kevin Murphy (9982dd)

  17. One of the brighter spots of Bush’s Presidency has been the high quality of individuals he has nominated to the federal courts. It comported with his promises while running for office, and was undoubtedly a decisive consideration for a significant number of voters.

    Bush’s nomination of John Roberts, a man of obvious intellect and experience and competence, further solidified my impression that Bush had established a very high standard for filling judicial vacancies. He sought the best nominees possible, confident that their qualities would make it difficult for the Senate to refuse to confirm them. And if the Senate nevertheless refused, the American people would hold Senators responsible, as they did in 2002 and 2004.

    We neither need nor want the Supreme Court to be a super-legislative body consisting of nine life-time members accountable to no one. I just want the Supreme Court to fairly and objectively interpret the law and abide by the clear words of the Constitution. If a Justice truly acts as an “umpire”, and truly applies the Constitution as it is written and was intended without inventing meanings which aren’t in it, then I am happy. Because I’m confident that an honest and intellectually-competent Justice will in most cases arrive at the correct conclusion.

    That’s what makes the Harriet Meirs appointment so disappointing. In one stroke Bush has obliterated his prior record of seeking excellence. He has applied a “result-oriented” standard rather than a quality standard. He has validated the viewpoint that the Supreme Court is indeed a super-legislature, and that the only thing that matters is whether a Justice will “vote right”.

    This is why the Senate should reject the Meirs nomination. The damage to Bush has already been done; no one will ever again believe that his only concern is with quality and that his only desire is to choose the best person possible. But by rejecting Meirs’ nomination, we can at least retain the ideal of a Supreme Court as an objective arbiter rather than a politicized legislature. Bush will be under enormous pressure to replace a rejected Meirs with a top-notch individual whose qualifications are beyond reproach.

    If ever there was an occasion for the Senate to fulfill its Constitutional function of filtering out bad Presidential appointments, this is it.

    Daniel Wiener (0f4830)

  18. “The job of conservatives is to stand athwart history, yelling, stop.”

    William F. Buckley, Jr.

    Elizabetty (2567c1)

  19. She appears to be the exact type of crony that the Federalist warned against.

    Nope. Hamilton had no problem with presidents appointing cronies – it was assumed that they would do exactly that, and that was how it was supposed to be. He worried about presidents appointing cronies who were incompetent, or just plain crooks, and that is what the requirement for senate confirmation is supposed to prevent. Fortas was an example of the first line of defense (presidents won’t nominate crooked cronies in the first place) failed, but the second line (senates won’t confirm them) succeeded.

    Miers is neither incompetent nor a crook, and the president has nominated her. Therefore, in my opinion, the senate ought to confirm her, no matter how much of a disappointment she is to us. And yes, Patterico, if Bush were to nominate Lawrence Tribe, God forbid, I think the senate ought to consent. (But not Ramsey Clark; I think he’s crazy enough to count as incompetent.)

    Milhouse (3f7ff6)

  20. Excellent analysis. I have arrived at the same conclusion although through a different route.

    Kathy (59cee4)

  21. Those conservatives who oppose the Miers nomination live in a world of delusion. (And yes, I’m including you, Patterico.) They think they can win a knock-down drag-out fight in the Senate when in truth, they will lose. It’s really that simple.

    You only need look at the Senate reticence to cut spending to fund Katrina relief to understand, these are not men and women of principle, and when push comes to shove, they will abandon you like they abandon their lovers. If you want to see the filibuster, force Bush (as if you could) to nominate a Luttig and see how fast the gang of 14 sticks it to you.

    Fix the Senate first. Then you can have your Court. Until then, you’re living in fantasy land if you think you can win in the Senate. You’ve already lost there and you don’t even know it.

    antimedia (e989c7)

  22. When did I say we can win? I keep saying I doubt we can? While you were typing that up, I was busy typing up another post that concluded by saying I don’t think we can win.

    Perhaps you think it’s delusional even to hope. But sometimes you have to fight the good fight, even when you think you’re going to lose. God knows I never thought Proposition 66 would be defeated, but I blogged like a maniac about that anyway. And (for reasons having nothing to do with me) it was defeated.

    So you never know for sure.

    But I’m not optimistic.

    Patterico (4e4b70)

  23. And don’t tell me I haven’t been vocal on the Senate. Take your complaint to the Steve Bainbridges alone; I don’t need the lecture.

    Patterico (4e4b70)

  24. I still believe that Bush knows that he will lose all the RINOs for any candidate acceptable to the vocal Right. He decided, for his own reasons, not to do battle on that now.

    And the cronyism stuff is nonsense. Every president brings his own group of kitchen cabinet members with him, including Reagan.

    So, we’ll see how it plays out. Obviously, if Miers passes through and then turns into Madame Souter, Bush will have earned what he will get. There’s a 40% chance this will rutn out all right; with less screaming by the conservative partisans, the chance was more like 55%.

    Kurmudge (1e7cdf)

  25. And the cronyism stuff is nonsense. Every president brings his own group of kitchen cabinet members with him, including Reagan.

    Not generally for the Supreme Court, they don’t.

    Patterico (4e4b70)

  26. […] We began the Miers affair sitting it out, then sought to understand the President’s decision process. Often, in important matters, the most important thing is to figure out which variable in the overall equation is the most critical. We think that we have arrived at a conclusion, courtesy of Patterico: [U]nderstand where I’m coming from. I just don’t think we can afford to take chances any more. Republicans keep winning elections, and keep getting erratic results on our Justices. For every Scalia, we get a Kennedy. For every Thomas, we get a Souter. We can’t continue going down this road. […]

    Dinocrat » Blog Archive » 90% becomes 99% on Miers, courtesy of Patterico (ea6a9d)

  27. I’m glad you joined the Rebel Alliance. But. The last time the Senate nearly filibustered a Supreme Court nominee was Abe Fortas, whose nomination was derailed by a threatened filibuster by an alliance of the most liberal and the most conservative senators. Thanks to the Gang of 14 deal, which you opposed and I supported, and for which you’ve given me a lot of grief, there is still a slim chance that an unlikely combination (Kennedy and Brownback?) could likewise derail Miers.

    Steve Bainbridge (e2330b)

  28. I’m not sure I follow your reasoning, but you gotta face up to the fact that just about everybody says the Gang of 14 deal probably played a large role in this nomination. We’ll never know for sure, but there’s a lot of evidence out there saying so.

    Patterico (4e4b70)

  29. Precisely. Bush forfeited any valid claim to blind trust in his pick with his serious consideration of Gonzales.

    Ah, so now ‘serious consideration’ is proof of heresy? Is that some sort of thought crime? Look, realistically unless you build a cyborg, you can never be ‘100% sure’ about someone. Conservatives asked Bush for someone _he_ was sure about. He gave them someone _he_ was sure about, and able to make it through the senate without a meltdown to boot. If you didnt trust the man you shouldnt have reelected him, because you should darn well have known he and Karl Rove werent going to send Pat Buchanon up to the Senate. Either this is a brilliant stealth candidate or Bush has been sandbagging conservatives all along, so you were either fools then or fools now. Its a bit late in the day for jumping ship.

    Mark Buehner (836c85)

  30. Don’t you get it? It’s all part of an ingenious Rove plot.
    1) Take the heat off Bush in the blistering light of the current liberal media frenzy (Katrina, Iraq, etc.). Essentially lull them into a sense of comfort that they have finally impacted on the feable Bush mind which has succumbed to their power of reason (completed).
    2) Get the conservative base all exercised and active (in progress). When it’s all said and done, Miers will be rejected and Bush will be “forced” to follow-up with a “respected” jurist such as Luttig. Said jurist will have to be accepted by the just-revealed rejectionists.
    Lose the battle and win the war!
    Are they good, or what?

    marvls (8363a6)

  31. We don’t need someone who will just stop the bleeding, we need someone who will effectively contend for the originalist view. What do you call a justice that isn’t an activist? There must be a better word for it than “non-activist.” If President Bush can persuade me that Miers is the one for the job, I will ill no more forever.

    Douglas (ad72b8)

  32. Folks wrangle about whether Miers’ resume is good enough. I say, it’s as good as Thomas’ and O’Connor’s and Powell’s were. But the only real issue is Miers’ reliability as a constitutional conservative. If she had published a non-scholarly magazine article bashing racial quotas, Roe, and the “right to privacy,” most of her conservative critics (well, not George Will) would fall in line. When people say they want “another Scalia,” they don’t mean someone with Ivy League credentials — Breyer has those. They mean someone who has a solid body of writings that demonstrate the “right” conservative views. (An aside — Scalia, Thomas and Rehnquist disagreed in a fair number of cases: what is the “right” view of those disputes we should demand of the new nominee?)

    The conventional wisdom is that either (1) “another Scalia” would not be confirmed in the Senate or (2) the confirmation battle would be Pyrrhic, damaging the President’s ability to pursue the rest of his agenda, and perhaps damaging the electoral prospects of other Republicans in 2006 and 2008. If that assessment is correct, then the President should not be faulted for practicing “the art of the possible,” and choosing a nominee who is likely to provide the vote against Roe demanded by the social conservative right, but comes without a paper trail.

    Do you disagree? Do you think that there are 51 Republican Senators who are as eager for a good fight as you are? The presence of 7 R. members on the Gang of 14 suggests otherwise.

    My bottom line: if we really want “another Scalia,” the only way to get there is via another stealth candidacy, with all its uncertainties. If you insist on a truly clear track record, you are going to disqualify the Janice Browns and end up with someone more “moderate.” If I am right, and those are our options, I say go with the stealth candidate over the one with a ‘moderate’ track record. The stealth candidate will at worst turn out to be a moderate, and (unlike the proven moderate) presents some hope of turning out to be the Scalia-ite vote folks are clamoring for.

    Some folks seem to be advocating only for another Roberts. But from his track record, I can’t guess whether Roberts is the next Scalia or the next Stevens/Blackmun. Can you? I say, on the issues we care about, Roberts is as much a stealth candidate as Miers. The only difference is that the President is more likely to know Miers’ real views than he is Roberts’. And in my book Roberts is less likely than Miers to show the intellectual independence that Thomas has.

    Mark G (91d5b4)

  33. Yes Mark Buehner, you make my point. One year later they all decide they are willing to weaken Bush and to what end? If this much energy had been directed at the Senate again, it could have made a real difference. The _result_ is that you gave power to even the Lotts(they each have their own petty grudge against Bush). If you knock down Miers, what will change? I know Bush wants to change the courts. Proven fact. This is horribly common of me, but I voted Bush because he was _result_ oriented.

    owl (07ea01)

  34. To all the weak sisters,

    Conservative critics of the Miers nomination don’t want to weaken President Bush, we want to strengthen him and the Supreme Court. We also want to confront Senate Republicans with the clear reality that either they start upholding the principles and promises made during the campaign, or we will withhold our support in 2006.

    In short, we want the fruits of our victory now, and if the GOP can’t or won’t deliver, then in 2006 we will vote for those who will. Plain and simple, either deliver on your promises or go home and plant roses.

    Also, we don’t care one bit if it takes kicking the Dems sorry rear ends to get our agenda front and center. If there’s to be a fight, then so be it, and the sooner the better. It’s time to take off the gloves and get down to the heavy lifting.

    Black Jack (ee9fe2)

  35. Patterico, excellent analysis. But the thing that bothers me the most, is–what about excellence? This appointment seems like the glorification of the average, the exhaltation of the mediocre. Everyone seems to be saying that her quals are are sort of minimal.
    I believe in excellence.

    matoko (276006)

  36. Re 34 — So, when the weak sister Republican Senators let us down, we are going to punish them by throwing our support to Alan Keyes-ites; who will lead us on to . . . electoral oblivion. Face it, a crucial key to the Republican electoral advances has been presenting candidates who are conservative, but yet percieved as not in thrall to the Buchananites and Moral Majoritarians.

    I’m no expert on electoral politics. But is there reason to believe that a party that gained power by watering down its ideological purity will improve its success by purging the RINO’s? Are there folks in the know who agree with this strategy?

    Mark G (805000)

  37. Black Jack’s arithmatic has worked real well for the liberals i might add. Cast off the moderates at your peril. You want to go somewhere else in 06 and 08? Fine, see you in Ralph Nader land. Buchanon almost managed to put Al Gore in the White House once, looks like he may have his chance again. It doesnt take Karl Rove to realize pounding Janice Rodgers Brown into the SCOTUS doesnt do you a whit of good if President Hillary gets to nominate 3 more Ginsbergs. The religious right is having a temper tantrum because Bush has given them what they need instead of what they want.

    Mark Buehner (836c85)

  38. I would have less of a problem with Bush (still hate it, but less of hate it), if he would just come clean and say that he picked a moderate. But this whole lack of truth thing blows. Bush reminds me of the corporate CEO with strong personality and leadership drive who is a great leader but poor thinker who leads the company down a McKinsey rathole.

    I gave Bush a bone on Gulf War Dos. Trusted him on that and volunteered for recall to active duty. He gets one bone. Not two. And this is not a war/foreign policy situation, where we need to support the exec (I did same for Clinton with Bosnia btw). This is domestic politics crap. I say, rip him and Harry to shreds.

    TCO (b85fd9)

  39. Mark G,

    The Rebel Alliance seems to me fairly widespread, lacking a leader, and currently composed of several elements, each with it’s own motivation for resisting GOP intransigence.

    General objection to the Miers nomination has provided a focal point for birds of a feather to gather and consider what opportunities GWB and Fortuna have generously bestowed upon the faithful.

    Our motto is carpe diem, and our guiding principles are listed in the Declaration of Independence. Go forth with courage and know the confidence which comes with the strength of many.

    Dice are rolling, and the knives are out.

    Black Jack (ee9fe2)

  40. Re 39 To quote from The Princess Bride, “Bye, boys! Have fun storming the castle!”

    Like I said, I am no expert; maybe attacking this nominee will turn out to be the best strategy.

    As a practical matter, it seems to me that blocking confirmation in the Senate, or persuading the President or Miers to withdraw this nomination, are very long shots unless some dirt on Miers comes to light. If that does not happen, do Kristol and the rest end up like Ted Kennedy — raising hell in what they know is a lost cause?

    Mark G@lliher (805000)

  41. Buehner,

    Forgive me, but you sound like Peter Jennings after GWB won the election. He said the voters had a temper tantrum.

    Well, that’s not quite what happened then, and your similar characterization is also somewhat wide of the mark. Conservatives are angry over the Miers nomination because it isn’t what we were promised, she’s not an acceptable candidate for SCOTUS.

    We had a contract, albeit verbal, but a contract no less, and we fully expect GWB and Senate Republicans to live up to their end of the bargin. If they renege, and the Miers nomination is clearly an effort to renege, we aren’t going to take it, and we will vote against those who cross us.

    It’s vitally important to us, and this is our line in the sand. For us, it is a matter of principle, and we put principle above party.

    Don’t mistake our resolve. We’re not like our Democrat friends who time and again got on their knees for Bill Clinton. Conservatives are not going to shut up and acquiesce in this travesty.

    The GOP can wake up and deal forthrightly with Conservatives, or they can take their chances at the polls. The ball is in their court. Conservatives hold all the moral high ground here.

    Think it over, join the Rebel Alliance. You might even get to fly an X-wing fighter.

    Black Jack (ee9fe2)

  42. I agree that Republican Senators should torpedo Miers. But they are a bunch of wusses, so they won’t.

    Half Sigma (7b3fba)

  43. Right on the mark Patterico. I think what is surprising many, especially the Administration, is this apparently ‘sudden’ uprising in the ranks. It seems pretty clear that they don’t understand where all this comes from, how they got to the point where seemingly out of the blue the Base stood up and said “NO”.

    Dissatisfaction has been building quietly for some time, as government grows out of control under the very people we elected. Harriet Miers is the proverbial last straw, albiet a very large one. In a move similar to his father’s, this President seems to now be breaking one of the primary promises that got him elected twice. Only this is much, much worse than a mere incremental tax increase.

    DeepKeel (3ff91d)

  44. I still remember that God-damned tax raise. It was not nescessary for the government. Was poor politics with both liberals and conservatives. And all the “compromise” parts of the deal get written off by execuitive order when Clinton came into power. I’m STILL pissed at that.

    TCO (b85fd9)

  45. I recall the deal with Dems was that they were to cut spending by an amount equal to the tax increase.

    However, once the tax legislation was in place, and the President Bush, the elder, was defenseless, Dems reneged on their end of the bargain and not only left George H.W. Bush, holding the bag, but also then viscously turned on him and, with unabashed hypocrisy and in cold blood, attacked the man for saying one thing and doing another. It put Bill Clinton in the White House, and now you know the rest of the story.

    That told me all I ever need to know about Dems.

    Black Jack (ee9fe2)

  46. Join me in supporting Harriet Miers . . . for Fed Chairman! [] Then, let’s bring on Janice Rogers Brown!

    Dennis Foster (6f2127)

  47. Black Jack, you can be upset with the way Bush I was treated. Meanwhile, I’m still having to deal with Dumbya’s “I’m a uniter, not a divider” whopper.

    Both sides lie sometimes, and both sides are hypocritical sometimes.

    Tillman (1cf529)

  48. Tillman,

    I reject your attempt to draw moral equivalencies.

    President George W Bush has tried over and over to reach out to Dems and each and every time the Jackass Party kicked him in the head for his efforts.

    It’s exactly the same sort of crap Dems pulled on his father. And, it’s the Donkey Team which has used every issue, even 9/11 and Hurricane Katrina, to divide this country. Democrats and their allies in MSM are even willing to get into bed with International Terrorism to bash GWB. What anti-American low life Socialist scum.

    Just because Conservatives are presently engaged in a dispute over the Miers nomination doesn’t mean we’ve forgotten who and what the Left really is.

    Black Jack (ee9fe2)

  49. BJ, Bush has tried to “reach out” to Dems? On the contrary as you are finding out, Bush doesn’t compromise unless he is forced to. He’s a glorified hard-headed hillbilly.

    Tillman (1cf529)

  50. Tillman,

    Wrong again, I’m a hardheaded hillbilly, and it takes one to know one. GWB doesn’t have the bona fides for membership in the honorable ranks of natural born ridge-runners. But, he’s surely welcome to drop by anytime and spit on the pot belly stove. Hell, we might even fry up some catfish and hush puppies.

    Black Jack (ee9fe2)

  51. Did or did not Bush cowrite his education bill with Teddy Kennedy? Did or did not Bush go back to the UN in 2002 after Democrats demanded more time for diplomacy over Iraq? Did or did not Bush just nominate 2 justices the Dems seem able to live with?
    How many democrats voted for his tax reform package? How many for his budgets? How many for the war?

    Mark Buehner (836c85)

  52. Well BJ, if Bush ain’t a hardheaded hillbilly, then he plays one good on the TV.

    Actually, to be fair, I have to admit that a D doesn’t compromise with an R either unless they’re forced to or a deal is made. I believe that Dubya does however, perceive compromise as a sign of weakness.

    Tillman (1cf529)

  53. Patterico’s whole logical train depends on this postulate from the Mirengoff piece – “It’s not likely that Bush (a non-lawyer) and Miers have had in-depth discussions about constitutional law.” I consider it inconceivable that he didn’t have such discussions. If so, then the nomination makes perfect sense – Bush appoints the person he wants, someone who agrees with him on the various Supreme crises of the day. What exactly Bush wants remains a mystery, now that we know he isn’t simply a pushbutton puppet of our more reactionary conservatives. But I’m fiarly certain that whatever Bush wants, Miers is it. He could never gain similar assurance from an interview or two with the more obvious candidates.

    big dirigible (feaa10)

  54. The conventional wisdom is that either (1) “another Scalia” would not be confirmed in the Senate or (2) the confirmation battle would be Pyrrhic, damaging the President’s ability to pursue the rest of his agenda, and perhaps damaging the electoral prospects of other Republicans in 2006 and 2008.

    What rest of the agenda? The rest of the agenda is a giveaway to the left, in return for which we were promised more Thomases and Scalias. If we’re not getting those, then what exactly are we getting out of this administration? What’s the point of electing Republicans in 2006 or 2008, if we’re not making headway toward bringing the constitution back from exile? If this is the best they can do, we may as well have the Ds back in charge. The point of having policies isn’t to get elected, the point of getting elected is to implement the right policies. If we don’t do that, so as not to endanger re-election, then we’re like the person who spends his entire life earning money, but never spends any of it, thus turning all his effort into a complete waste.

    Milhouse (3f7ff6)

  55. This is what the likes of Chuck “the scmuck” Shummer and Ted “MaryJo dead” Kennedy (and their friend like Raplh Neas) has given us. Appointments that are empty of anything that can be analyzed.

    This even makes “Trust but Verify” hard.

    One can only hope that someone will “bitch-slap” these two twits.

    Neo (47991a)

  56. If we’re not getting those, then what exactly are we getting out of this administration? What’s the point of electing Republicans in 2006 or 2008, if we’re not making headway toward bringing the constitution back from exile

    A war on terror instead of a police action, a stable democratic Iraq instead of RVN-style abandonment, permanent tax cuts, a heck of a lot of conservatice judges in fact. You really think there is no difference wait until President Hillary plops in half a court of Ginsbergs and we’ll see. There is just so much ‘i’ll take my ball and go home’ talk its getting irritating. As a libertarian, I have no stomach for another liberal president like Hillary or Gore will be, and i’m going to go out on a limb and suppose the far right is going to be quite a bit unhappier indeed. And again, this is a Bush protege. If Bush is a closet lib you made that mistake a year ago, not now. If not all this crying is just because you either didnt get your fight in the Senate or you want what you want now instead of opening your present on Christmas Day (that being the first court decisions with Miers and Roberts).

    Mark Buehner (836c85)

  57. Re 54 — So, you are confident that the RINO Senators would have voted to confirm Janice Brown or Michael Luttig or Priscilla Owen? I don’t see why: does anyone in the know share that confidence? Or do you just think the President should go down with the ship rather than go the stealth route? But what good does that do anyone?

    The best we could have hoped for is another Roberts. And Roberts makes me about as nervous as Miers does. I am hoping that both of them make me happy as this term progresses.

    Mark G@lliher (805000)

  58. Results. All I care about, why I voted for W twice, but do not expect all my dreams to come true tomorrow. He is not God and it seems he has a big wide world to fight besides us.

    HHewitt has an interview up with Professor Graglia. Great explanation. Results. I have already lived the Perot route. Results=Losers.

    owl (912a68)

  59. A Note to Nervous Nelly:

    Relax! The Rebel Alliance poses no threat to your fantasies. We pride ourselves on a realistic approach to political realities, and are pleased to reassure you, our interests don’t conflict with yours. The sky isn’t falling.

    In 2006, Conservatives opposed to the Miers nomination can signal their specific displeasure during the Primary Elections by voting against any incumbent who approved Miers. It isn’t clear that such an initiative will necessarily result in political catastrophe.

    The relative, dynamic, evolution of political change will continue to achieve ever greater levels of direct citizen participation, and that’s a good thing, wouldn’t you agree?

    Black Jack (ee9fe2)

  60. Its absurd and it wont happen. If the Conservative Right is so powerful why cant it muster 60 Senators? Or even guarantee 50 to push the Nuclear Option? I have a feeling John McCain and most of his 6 brethren will have their jobs over the next 6 years and more.

    Somebody on Hugh made an astoundingly concise point: why should the president produce a nominee the Right can be 100% about when the right cant produce 50 senators they are 100% about?

    Mark Buehner (f663c2)

  61. Mark B and I are not alone: Stanley Kurtz on the Corner (“It’s the Senate, Stupid”) seems to agree that the votes aren’t there for a Janice Brown. Like Black Jack, he wants to fight; but he recognizes that the R Senators should be getting the brunt of the fire now being aimed at the President.

    Mark G@lliher (805000)

  62. Those who are decrying the RINOs making it impossible to reach 50 votes (not 51) to confirm a strict constructionist are forgetting about the DINOs. Conrad and Nelson (NE) know that filibustering a good Supreme Court nominee may cost them their seats. They breathed sighs of relief after Hoeven on the one hand and Osborne and Johanns on the other declined to challenge them, but they’re not out of the woods yet… and a decision not to run isn’t final until the filing deadline passes. Would they really be willing to stand with their parties on a judicial filibuster? Forcing them to choose would be win-win for the GOP: either we get good Justices or we get at least two more Senate seats. Instead, the opportunity has been missed.

    Voice of Reason (d427f3)

  63. Re: #60 & 61,

    Conservatives are not all powerful, and we never claimed to be so, nor do we expect to dictate our preferences to either GWB or to Senate Republicans, much less to Congress as a whole.

    However, we are not without some modest levels of personal and collective influence, included among which are the political, economic, and intellectual. We fully intend to use our resources in order to advance our political agenda, which is really not very much unlike the way every other interest group in American politics operates.

    Conservatives take sharp notice when our friends and allies give our concerns short shrift. We object to unfair characterizations and to cheap rhetorical tricks designed to slap us into silent acquiesce of agenda initiatives which conflict with our expectations. It isn’t what we are about, and it causes Conservatives to lose respect for those who engage in such underhanded nonsense, and to question the basis for our alliance with them.

    Conservatives have our own fish to fry, and we are capable of deciding for ourselves what is in our best interests. Others are invited to do likewise, and they can take their “astoundingly concise point” for whatever they think it’s worth. However, consider well that Conservatives are, by and large, unpersuaded by such fuzzy headed nostrums, and feel decidedly uncomfortable in the company of those who insult us.

    Black Jack (ee9fe2)

  64. The President is not absolved of his duty to pick good judges, or of his Honor in living up to his pledge in BOTH elections for office to appoint judges clearly in the mold of Scalia and Thomas. Failure to do so and thus present the Senate with its serious duty, and any resulting battle, is political cowardice. Some things are worth fighting for, and if this isn’t one of them then nothing is.

    DeepKeel (3ff91d)

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