Monday, October 03, 2005

The Miers Miscalculation

So, the nominee is Harriet Miers, who is without a doubt very qualified--just not for this job. As so often is the case, my views parallel Legal Fiction: I'll listen to what she has to say--but this sounds remarkably like a judicial version of Michael Brown.

So, whereas my summary judgment on Roberts was "Could Be Worse", on Miers it's "Can't be a Crony." I don't like cronies, especially Bush cronies, and Miers fits that bill a bit too neatly.

But if you think I'm upset, you should hear what they're saying on the right. Orin Kerr has a round-up, and they are livid. I think there is a lot of pent up anger pouring out here.

Southern Appeal in general is apoplectic, but this post by Steve Dillard is maybe the best of the lot:
I am done with President Bush: Harriet Miers? Are you freakin' kidding me?!

Can someone--anyone--make the case for Justice Miers on the merits? Seriously, this is the best the president could do?

And what really sticks in my craw is the president's unwillingness to have a national debate about the proper method of interpreting the Constitution. I suppose I should have seen this coming when White House staffers freaked out over Chief Justice Roberts's ties to the Federalist Society.

Thanks for nothing, Mr. President. You had better pray that Justice Miers is a staunch judicial conservative, because if she turns out to be another O'Connor then the Republican Party is in for a world of hurt.


Oh, and if any of you RNC staffers are reading, you can take my name off the mailing list. I am not giving the national Republican Party another dime.

That about sums up the right-wing response. They are pissed. And they'll be more so now that Democrats are playing the happy-dance. For example, DKos says this is a victory for the left, and drops the hint that she'll become another Souter--the right's worst nightmare.

But I'd tread softly if I were them. In a way, Miers is a very smart pick (in the "pure political motivation" sense that defines this administration). For one, I don't think she will become a Souter or Kennedy? Why? Because she'll want to prove herself to all of her "allies" who attacked her. If many justices drift left to please the Times and Post, then this one may tack right to please Powerline and Malkin.

Second, there will be the temptation to oppose her on qualification grounds--indeed, Paul Horwitz advises Democrats to take precisely this option. It certainly does mesh well with the Michael Brown/Julie Myers story line floating about (and croynism has a mental link to corruption too!). But I'm inclined to agree with Hillel Levin on this. Suppose Democrats team up with disaffected Republicans and say "no, Miers is not qualified for this job." Then Bush comes back and nominates a hyper-conservative with impeccable credentials. Democrats would be caught--I don't think they'd be able to make the shift from "credentials are key" to "ideology is key" convincingly. This wouldn't be bad if the nominee was someone like Michael W. McConnell, but if it's a Janice Brown Rogers then we got trouble (Charging RINO also offers up this scenario). Of course, confirming Miers legitimizes the whole notion of appointing poorly qualified cronies to high offices. It's lose-lose.

So to be honest, I'm not thrilled at all. I think conservative anger will fade once she starts voting with the Scalia bloc (they say they'll still be upset, because this was a missed opportunity to break from the "stealth nominee" trend, but since when does the right care about strong qualifications from the evil liberal universities, academy, and judiciary anyway?). Liberals are going to depressed once they realize they've been played, and put a pure hack on the Court. And if by some miracle Senate Republicans grow a backbone, oppose the President, and reject her--we'll just get a bona fide right wing ideologue rather than one in disguise.

Woohoo. (And as always, TMV has a stellar round-up. Woohoo!).

MORE: James Joyner at Outside the Beltway has a terse but tremendous take-down of Hugh Hewiit (one of the very few bloggers defending the Miers pick). Hewitt argues that she's a good choice because she's been inside the administratio and thus knows the true nature of the war on terror:
Consider that none of the Justices, not even the new Chief, has seen the battlefield in the GWOT from the perspective or with the depth of knowledge as has the soon to be Justice Miers. The Counsel to the President has seen it all, and knows what the President knows, the Secretaries of State and Defense, the Joint Chiefs and the Attorney General.

I suspect that the President thinks first and foremost about the GWOT each morning, and that this choice for SCOTUS brings to that bench another Article II inclined justice with the sort of experience that no one inside the Court will have.

Joyner responds:
Of course, Article III judges are supposed to have an independent perspective. I prefer a judge who will read and apply the Constitution, not factor in their career experience.

Spot on.

YET AGAIN: Protein Wisdom has some shocking info, if true. Did Miers really recommend that we stop discriminating against homosexuals in adoption decisions? Shouldn't be that controversial, but it does conflict with the 10th Circuit precedent on the matter--and probably won't thrill social conservatives. And TalkLeft says that Miers actually is an okay gal:
didn't get to know her well, but we sat next to each other for several hours at the last meeting she attended and I liked her. We only talked law, not politics, but she won me over - and I was pre-disposed not to like her, that being the year that Bush was running for President and knowing she was his personal lawyer.

The other members of that Board at that time, at least four of whom are former ABA Presidents (including Martha Barnett who is quite progressive on women's and social issues)know Ms. Miers from her ABA work and spoke very highly of her.

My opinion could change should additional information surface that she is a Thomas or Scalia, but I don't think that will be the case. Compared to some of those under consideration he might have chosen, like the ultra-conservative 4th Circuit judges or Priscilla Owen or Janice Rogers Brown, Ms. Miers is a far better choice.

Very interesting....

1 comment:

N.S.T said...

You know one doesn't have to be a God to be appointed to the SCOTUS. And lest we forget Rehnquist was a Nixon crony with no judicial experience when he was nommed, and he did ok for himself...