Patterico's Pontifications

10/19/2005

Bork Slams Miers Nomination (Again)

Filed under: Judiciary — Patterico @ 6:38 am



Robert Bork, who had previously called the Miers nomination a “disaster,” sets forth his reasoning in a scathing critique of Miers in the WSJ. Unsurprisingly, I agree with many of the sentiments he expresses in it. It opens:

With a single stroke–the nomination of Harriet Miers–the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement. That’s not a bad day’s work–for liberals.

He notes her poor writing skills:

There is, to say the least, a heavy presumption that Ms. Miers, though undoubtedly possessed of many sterling qualities, is not qualified to be on the Supreme Court. It is not just that she has no known experience with constitutional law and no known opinions on judicial philosophy. It is worse than that. As president of the Texas Bar Association, she wrote columns for the association’s journal. David Brooks of the New York Times examined those columns. He reports, with supporting examples, that the quality of her thought and writing demonstrates absolutely no “ability to write clearly and argue incisively.”

He echoes The Angry Clam’s recent complaint that the nomination sends the message to conservatives to hide your views:

By passing over the many clearly qualified persons, male and female, to pick a stealth candidate, George W. Bush has sent a message to aspiring young originalists that it is better not to say anything remotely controversial, a sort of “Don’t ask, don’t tell” admonition to would-be judges. It is a blow in particular to the Federalist Society, [which] performs the invaluable function of making law students, in the heavily left-leaning schools, aware that there are respectable perspectives on law other than liberal activism. Yet the society has been defamed in McCarthyite fashion by liberals; and it appears to have been important to the White House that neither the new chief justice nor Ms. Miers had much to do with the Federalists.

And he concludes by noting that the nomination has split conservatives:

Finally, this nomination has split the fragile conservative coalition on social issues into those appalled by the administration’s cynicism and those still anxious, for a variety of reasons, to support or at least placate the president. The wars in Afghanistan and Iraq aside, George W. Bush has not governed as a conservative (amnesty for illegal immigrants, reckless spending that will ultimately undo his tax cuts, signing a campaign finance bill even while maintaining its unconstitutionality). This George Bush, like his father, is showing himself to be indifferent, if not actively hostile, to conservative values.

Good points all.

The knee-jerk response to any proclamation from Bork is to note how many votes he has cast on the Supreme Court (answer to that trivia question: none) — as if it was Bork’s fault that his opponents lied shamefully about his record and got away with it. But his defeat — at the hands of a Democrat-controlled Senate, I’ll remind you — did send the message that conservative candidates should eschew two things: 1) a wacky beard, and 2) excessive honesty about one’s views. A quality, tight-lipped, clean-shaven nominee like Mike Luttig was in my view unlikely to be Borked in a Senate with 55 Republican votes.

Bork’s voice has authority. Conservatives supporting Miers mock him at their peril.

26 Responses to “Bork Slams Miers Nomination (Again)”

  1. Bring it on:

    GWB should pull the Miers nomination and send up Bork’s name for confirmation. Seems to me Bork’s among the best candidates out there.

    Black Jack (ee9fe2)

  2. He’s pretty old, though, and the last time I saw him, he didn’t look to be in the best of health.

    It would cause the Senate to go into convulsions, though.

    Angry Clam (fa7fff)

  3. Clam,

    You are correct, he is a bit too long in the tooth, but perhaps it was that “convulsions” part which seemed so darned attractive.

    Black Jack (ee9fe2)

  4. Black Jack, I hate to be constantly agreeing with you and the angry clamster, but “me too.”

    Bork gets it right again. He would have been a supreme … court justice.

    Harry Arthur (40c0a6)

  5. Hugh mocked him in his response to the op-ed.

    It is…weak.
    (plug)

    I suppose when all of Constitutional Law can be reduced to “Roe Roe Roe!” as Hugh does, then one can say with fair confidence, as Hugh did, that Con Law isn’t that hard.

    Christopher Cross (354863)

  6. Only three of Bork’s four pts cited in this post seem valid: Unless there’s more that I haven’t read (busy morn), the comment on her writing skills appears to be based on hearsay, which in turn was itself based on writings intended to be a journal article, not a legal opinion/analysis. Puh-leez, Mr. Bork, I really do think you’re smarter than that.

    His fourth pt looks a bit like the conflation of other plaints into this one, too, tho he does tie it together into something more valid by noting that it’s ripping a seam in the Big Tent. Fair enough.

    Bush is modestly more conservative than his Dad, tho not nearly as conservative as he should be, but before he went stealth he’d been a superstar at judicial picks, which should tell us something about his real leanings on this particular issue. In spite of making some very good pts, Bork’s commentary fails to address the central prob for the change: what if you felt you could simply not beat the fb? Would you then go Squish or Stealth?

    BTW, the closer the hearings get, and the more the pressure, such as this comment by Bork, builds, the better the chance we’ll see a gambit – I hope! – whereby HM talks so tough the D’s are forced into a doomed fb. Or, if they spot the trap and refuse to fb, her comments then set the bar for the next nominee w-a-y over to avowed conservatism.

    Will Bush/HM try to force a doomed fb? All it’ll take now is a few choice comments on her part, after she clears committee. No guarantees, but it’s the kind of opening Bush has usually favored in the past. I still bet against it, overall, but I guess we’ll see.

    Patterico,

    You understand that, if I’m right that Bush nominated HM as a stealth conservative, this means you were completely right in your prior oppo to the G14 deal? That’s the deal that brought us stealth. So where is your pressure on the Senate over all this?

    ras (f9de13)

  7. I’m pretty conservative; still Bork scares me, because he felt comfortable describing the Ninth Amendment US Constitution as a meaningless “ink blot.” That remark tells me Bork is more dedicated to his dogmatic Textualist theory than to the text of the Constitution itself.

    Mark G@lliher (805000)

  8. Flap had the opportunity to meet Judge Bork over at Pat Buchanan’s house in MacLean.

    Nice fellow and extremely (to say the least) bright.

    Flap cannot help but think there are some “SOUR GRAPES” going on here.

    If Bork is and was so non-plussed about the President then he should have supported a more conservative challenger in 2004 like he did when Buchanan ran against G HW Bush in 1992.

    Bork and some other movement folks need to tone down their intemperate and inappropriate personal attacks.

    Flap (d699e0)

  9. Ras,

    I think you’re giving Bush too much credit for his appeals court picks. I like the guy, but I don’t think for a minute that he was heavily involved in the process of picking his various appeals court nominees beyond getting a list which his advisers vouched for and saying “run with it.”

    Christopher Cross (354863)

  10. I’m shocked no one has pulled any briefs authored by her.

    Bork (maybe justifiably) sounds more than a bit bitter.

    Balasubramani (a42239)

  11. "Slouching Towards Miers"

    Robert Bork, on the nomination of Harriet Miers -- and Bush's "conservatism" -- in today's WSJ "Opinion Journal":With a single stroke -- the nomination of Harriet Miers -- the president has …

    protein wisdom (c0db44)

  12. The re-nomination of Robert Bork is a good idea whose time is long overdue.

    Mark, the 9th amendment as ink blot doesn’t bother me one bit, at least if that statement comes from the Judicial Branch. The application of IX and X is political, not judicial and therefore not justiciable in any event. The 9th and 10th are a nod to the Declaration and the concept of “the people” (not individual persons) being sovereign or having the sole power to convey legitimacy on a government. They tell us that the processes of republican government contemplated by the constitution (and required by it) are how the people determine which rights are to be protected. No penumbras emanate from IX or X. They don’t bind the states and they themselves don’t limit the power of the national government — that’s already done in the Articles of the Constitution and amendments I through VIII. It’s only when you start misconceiving the national government as one of general powers and “the people” as meaning individual persons do IX or X appear to limit or enhance state power. And for the living constitution fabricationists who really believe the incorporation mumbo jumbo, IX and X might as well be ink blots, since there’s nothing at left of state sovereignty after they’ve stood the notion of a union of states on its head and rendered the states mere subdivisions of an all powerful federal government.

    TNugent (6128b4)

  13. Christopher Cross,

    but I don’t think for a minute that he was heavily involved in the process of picking his various appeals court nominees beyond getting a list which his advisers vouched for and saying “run with it.”

    Possibly, but what’s changed this time?

    fwiw, I tend to see confirmation of Bush going stealth for two reasons:

    1. Even Roberts was kinda a stealth pick. Less so than HM, but there was still a lot of conservative concern over him, and in some quarters there still is. So bwteen Roberts & HM, I do see a strategic shift to stealth on Bush’s part.

    2. Bush, love or hate what he does (I do both, depending on the issue at hand), does not give up lightly. It seems more probable to me, therefore, that he’s switching tactics to fight the fb, than that he’s caving in to it for all time.

    ras (f9de13)

  14. Ras:

    I think what changed was simply the numbers. It’s easier to look at one nominee closely than several dozen. You have a few dozen appeals court vacancies, it’s less likely that a Prez will look at each one closely.

    As to Roberts, I think you can satisfy conservatives with a “stealth” nominee if that nominee has the track record of a Roberts (what sold Roberts on the base I think were his early legal memos with comments that might’ve been death in the Bork days but now were mainstream-ish legal conservative positions)

    With Roberts it was “look at his record, he is an impeccable legal mind with solid grounding in the Constitution, who also happens to be Catholic”

    With Miers it’s “She’s an evangelical Christian (recently anyway), who really really doesn’t like abortion (maybe), and might be just enough qualified for the Court. Did we mention she goes to church?”

    Stealth is one thing–mute is another.

    Christopher Cross (354863)

  15. CC,

    Well, I disagree that Bush simply made better picks when he had less time. The selection of Roberts contradicts that theory.

    But your last line is excellent:

    Stealth is one thing–mute is another.

    However, if HM is a stealth conservative, we also have to remember she is replacing SDO, which means that, to avoid a fb she has to be even more the Stealthinator than was Roberts.

    So the muteness – it’s been so quiet one would almost suspect it was, er, deliberate – would make sense, at least till she’s thru committee. Right to the last moment, in fact.

    After that, it depends on how Bush is playing this. If he wants the fb fight, we’ll see “give ’em hell harriet” provoking it. If Bush just wants a quiet confirmation, we won’t, tho the correct discerning q’s from a Senator might also lead to that same end.

    But Bush’s judicial-selection pattern switched dramatically after the G14 deal. If it’s a coincidence, it’s one that goes against his core traits, not just for judge-picking but in general. So I strongly suspect there’s something more afoot. An attempt to provoke a doomed fb looks like one possibility, albeit I might just be getting hopeful.

    But if he wasn’t intending that before, he should be now. The biggest downside to it is if there’s no fb and HM simply gets voted down, which is a low risk. But if he wins, he’s rewarded with the end of the fb and the Harry Reid lists.

    Good risk/reward ratio. Excellent, in fact.

    ras (f9de13)

  16. So where is your pressure on the Senate over all this?

    1) That’s what my crusade is primarily about now: persuading Senators. It’s secondarily about persuading Bush (and/or Miers), but I think Bush is probably too stubborn to do the right thing and withdraw the nomination. (I also think Senators are too spineless to vote against her, which is why I think she’ll be confirmed.)

    2) You’re a long-time enough reader to know that I have excoriated the Senate for the Gang of 14 deal. What makes you think I’ve changed my mind?

    I’m making the case against Miers; whoever wants to listen, will. (And whoever doesn’t, won’t.)

    Patterico (1614f6)

  17. Ras:

    Well, I disagree that Bush simply made better picks when he had less time. The selection of Roberts contradicts that theory.

    No, I am saying that his appeals court picks were better because he wasn’t really the one making them.

    How to distinguish the process by which Roberts got the nod vs how Miers got it is something I don’t think either of us has enough inside dirt to convincingly speculate on…

    Christopher Cross (d47f5c)

  18. CC,

    How to distinguish the process by which Roberts got the nod vs how Miers got it is something I don’t think either of us has enough inside dirt to convincingly speculate on…

    I still see the Squish or Stealth arg as dominating the process, but cannot definitively prove nor disprove it. I also see Bush as a strong critter of habit; whatever process he used to select his prior nominees is what he’d use here, too.

    But damn, you did say “convincingly” speculate, so I guess you got me after all!

    ras (f9de13)

  19. Robert Bork knows what it takes to be a member of the Supreme Court–as long as you confine it to the period JUST BEFORE being asked to give an account of yourself in front of the Judical Committee. From that point Bork has no clue.

    Bob Holmgren (55f656)

  20. Hey folks, seems to me everyone is overlooking a few basic facts; first, GWB and his advisors have been running circles around the democrats for over five yars now, making them look pretty foolish. The Gang of 14 and other members of Congress, on the other hand, continue to look like ameteurs. Here’s a POTUS who has exhibited real backbone (almost to a fault), who knows very well that his appointments to the SCOTUS are going to shape our Nation for decades. Do you really think he wants to see the Court continue in it’s current fashion? I have got to have more faith than that, even though I am not thrilled with some of the other things GWB has done.

    onlyaguy (fe55f6)

  21. Patterico,

    I never thought you had lost your disdain for the G14 deal, and subsequent events have only underscored how correct you were.

    I do however think that by now attacking Bush/HM more (much more) than you attack the Senate, you weaken the one you should be strengthening, and strengthen the ones you should be weakening.

    Make a shortlist of non-filibusterable candidates, then sort those names into any order whatsoever; whoever comes out at the top is still not anyone on a conservative’s shortlist. That’s where Bush is at present.

    I disagree with Bush, and agree with you, in concluding that a fb fight can indeed be won, however many rounds it takes. Bush, however, has fought the fight before and has legit reasons for concluding otherwise, be he right or wrong on that score.

    That single tactical conclusion is behind the HM nomination; everything else flows from it. And given the history of the fb in the Senate, it is not unreasonable to conclude that Bush could have a pt, even as we disagree w/it.

    What to do now? Well, weaken the G7! What else! But compare what they have faced re HM to what Bush has faced so far. Have the G7 faced anywhere near enough pressure to change their ways yet?

    Bush is trying to sneak a stealth conservative onto the court (if he had simply wanted a squish, he had easier choices and still does). But if he felt that he had sufficient support to break the fb, I expect he would try again, if not with HM, then with the next nominee.

    He’s a sometimes conservative: it depends on the issue at hand: with spending or immigration, he’s no conservative at all, but with the WOT or judges, he is. This is why those who have tried to see him as a typical conservative, using the usual set of preferences that go w/the label, have ended up a little bipolar on the man. Ditto for those who try to average it all out and call him an across-the-board moderate, like his Dad. He’s not that, either, not really. Where his Dad would split-the-diff on each issue, Dubya digs in his left heel on one, his right on antoher.

    His preference set is distinctively his own, but – and this is important – on each issue he has been extremely consistent. That includes nominating conservative judges. If he suddenly does something opaque here – HM ain’t my first choice, either – the reason is likely tactical.

    Which is why any argument for a HM withdrawal on the basis of her being a mediocre nominee is gonna go nowhere: in Bush’s mind, given the tactical assumption he’s made, he has already given you the best candidate possible under the circumstances.

    If you want him to act differently, and esp if you want him to withdraw HM, you need to give him reason to believe he can break the fb, once and for all. Till then, he’ll be faced with the Squish or Stealth choice every time.

    ras (f9de13)

  22. Not it

    Today’s dose of NIF – News, Interesting & Funny … Just Wednesday

    NIF (59ce3a)

  23. Excellent ras. I mentioned the Gang of 14 several days ago and P thought I wasn’t familar with his views on them. They become the winners of this mess, with Bush weakened.

    owl (35a359)

  24. I believe you’re right when you say that his arguments mirror those made by the Angry Clam.

    I do not think that is a compliment.

    Beldar (1a5b81)

  25. I think that the particular argument I mentioned — that these stealth nominations send the wrong message to conservatives — is a valid one.

    Patterico (4e4b70)

  26. Indeed, trashing the “elitism” of accomplishment for the truly evil real elitism of association is just what the supporters of Miers do.

    The message is that excellence shouldn’t matter when it comes to the highest court in the land, but any idiot with a law license who can grovel well enough will do.

    Ernest Brown (645009)


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