At Least She's More Qualified Than Michael Brown...

by hilzoy

As I said earlier, I would probably have voted to confirm John Roberts, on the grounds that almost anyone this President nominated to the Supreme Court would probably be worse. Unfortunately, today we see what worse would look like: Harriet Miers. Conservatives are, for the most part, upset. Bill Kristol is "disappointed, depressed, and demoralized". David Frum:

"In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met. She served Bush well, but she is not the person to lead the court in new directions - or to stand up under the criticism that a conservative justice must expect."

Andrew Sullivan:

"Think of her as a very capable indentured servant of the Bush family. (...) I think they've found someone whose personal loyalty to Bush exceeds even Gonzales'. And in some ways, I see this very personal, very crony appointment to be a response to being told he couldn't pick his main man, Alberto."

John Podhoretz (before the pick was announced):

"I am going to assume that this is a classic Bush head-fake gambit. If I'm wrong, I will spend the weekend banging my head against a concrete wall. This is the Supreme Court we're talking about! It's not a job for a political functionary!"

Mark Levin:

"But, in truth, we already know what's going on here, and that the president, despite a magnificent farm team from which to choose a solid nominee, chose otherwise. Miers was chosen for two reasons and two reasons alone: 1. she's a she; 2. she's a long-time Bush friend. Otherwise, there's nothing to distinguish her from thousands of other lawyers."

Todd Zywicki:

"At the time, of course, I had assumed that some minimum degree of luminescence would be required, in addition to Presidential trust. Little did I know that being close to the President would turn out to be the sole criteria for nomination to the Supreme Court. (...) I haven't double-checked the transcript from the press conference, but is everyone sure that he said "Supreme Court" and not "Secretary of Transportation"? The latter certainly seems somewhat more plausible..."

Krempasky at RedState:

"Mr. President, you've got some explaining to do. And please remember - we've been defending you these five years because of this moment."

And Erick:

"Me, the sources, everyone it seems was wrong. We've all heard the rumors, but not a one could believe the President would do that. (...) I think I'll let the President fight this battle himself, for now."

And just check out the comments on ConfirmThem.com. "Howls of anguish" doesn't begin to describe it.

(The always reliable Hugh Hewitt, by contrast, writes: "The president is a poker player in a long game. He's decided to take a sure win with a good sized pot. I trust him. So should his supporters." But even he has, essentially, to rely on faith.)

Reaction from the left is best summarized by Matt Yglesias at TAPPED:

"it's tempting to conclude that anyone whom the wingnuts dislike must be a good thing on some level. But au contraire! One of Bush's truly unique abilities is to undertake major initiatives (farm bill, medicare reform, steel tariffs) that conservatives don't like but which simultaneously don't do anything to please liberals. This may be another such case."

Yep. This is a nomination that shows us, once again, how little Bush cares about little things like a person's qualifications to hold a job, and his lack of respect for the Supreme Court. That should not please anyone, and apparently it hasn't.

Comments

[rilkefan]

"... and apparently it won't", perhaps?

The other day at TalkLeft there was a list of consensus great conservative candidates, and reading it I thought, well, these people are impeccably qualified, if Bush picked one we'd have to shut up and smile and suffer their conservative rulings in silence. Instead it's cronyism and a mess. I so don't understand why the latter is preferable to Bush.

[Jeff]

This might help explain the pick

Senate Democratic Leader Harry Reid was complimentary, issuing a statement that said he likes Miers and adding "the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer."

At the same time, he said he looked forward to the "process which will help the American people learn more about Harriet Miers, and help the Senate determine whether she deserves a lifetime seat on the Supreme Court."

Reid had personally recommended that Bush consider Miers for nomination, according to several sources familiar with the president's consultations with individual senators. Of equal importance as the White House maps its confirmation campaign is that the Nevada Democrat had warned Bush that the selection of any of several other contenders could trigger a bruising partisan struggle.

So if Bush wanted to pick a candidate the Democratic Senate could accept, seems like Meirs was one he could pick. All the other women were too partisan.

[Ugh]

This is Bush's big "f*** you" to everyone on both sides. He's the President and you're not. He's gonna pick whoever the f*** he wants and there's nothing you can do about it.

He's acting (unsurprisingly) like a spoiled child who's been told he can't do something (i.e. all the talk about how he would have to nominate someone more conservative to satiate the base, "the hell I do" was what I'm sure he was thinking).

[Jeff]

Oops, forgot the URL

http://news.yahoo.com/s/ap/20051003/ap_on_go_pr_wh/bush_scotus

[Jeff]

If Bush was going to give a f*** you, he would have picked Gonzalez.

[Ugh]

If Bush was going to give a f*** you, he would have picked Gonzalez.

True. There's always the possibility that Stevens will retire.

[bob mcmanus]

It just pleases me mighty fine, thank you, but I am one nasty SOB. Bout time anybody who thought we remained in normal or even disastrous political circumstances got a wake-up call. We are in catastrophic circumstances.

The Red-Staters will have their loyalty tested, and be further implicated in the corruption and have their own survival inextricably dependent on the survival of their masters.

All in, all the time.

[rilkefan]

Just deleted from Frum's blog:
"I mentioned last week that she told me that the president was the most brilliant man she had ever met. To flatter on such a scale a person must either be an unscrupulous dissembler, which Miers most certainly is not, or a natural follower. And natural followers do not belong on the Supreme Court of the United States."

via Atrios

[Jesurgislac]

Jeff: If Bush was going to give a f*** you, he would have picked Gonzalez.

There's always the possibility that he was advised it might be unwise* to pick Gonzalez.

*Which is probably as strongly as anyone who works for Bush would dare phrase "Are you nuts, Mr President? The Abu Ghraib photographs go public in three weeks and you want to nominate a pro-torture candidate for the Supreme Court?"

[Slartibartfast]

My initial reaction consisted pretty much of: "who?". My second reaction was that this has got to be a joke. I haven't gotten around to one that's better thought out yet because it's an even more bleary Monday morning than usual.

I think I heard Reid on NPR this morning saying that she was actually a good choice, and some other people praising the selection, too. But none of that really means anything to me.

Hey, at least it wasn't the COB of Halliburton.

[Jesurgislac]

Slarti, cheer up: just think who Kerry might have picked! ;-)

[Slartibartfast]

Al Gore?

[bob mcmanus]

Let the Red-Staters quote this nugget as insanity from the left.

This woman has been sitting next to the President for the beginning. I think the whole crew, certainly Miers included, should be in the Hague on trial. If there is corruption in this WH, if there is criminality, if there is a lack of ethics or honour, Harriet Miers is at its heart.

She is filthy, covered and dripping with slime, exuding swamp gas from every orifice. She is excrement. Yet the Senate Dems will look aside, and grant her the greatest appointed honor this country can bestow. Bush and Cheney and Rove will be laughing.

Power is being demonstrated. Surrender, Dorothy.

[hilzoy]

Cruising the blogs, here's more: Michelle Malkin:

"What Julie Myers is to the Department of Homeland Security, Harriet Miers is to the Supreme Court. (Video of the announcement here via NYT).) It's not just that Miers has zero judicial experience. It's that she's so transparently a crony/"diversity" pick while so many other vastly more qualified and impressive candidates went to waste. If this is President Bush's bright idea to buck up his sagging popularity--among conservatives as well as the nation at large--one wonders whom he would have picked in rosier times. Shudder."

Right Wing News:

"To merely describe Miers as a terrible pick is to underestimate her sheer awfulness as a selection."

Feddie at Southern Appeal:

"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? (...)

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."

Via Wonkette, a profile from 2004:

"One former White House official familiar with both the counsel's office and Miers is more blunt.

"She failed in Card's office for two reasons," the official says. "First, because she can't make a decision, and second, because she can't delegate, she can't let anything go. And having failed for those two reasons, they move her to be the counsel for the president, which requires exactly those two talents." "

On the ConfirmThem link in the main post, someone describes her as "Abe Fortas in a dress", prompting someone else to defend Abe Fortas as a vastly better choice. You could not make this up.

[Jeff]

If she's so horrible and unqualfied, Why is Harry Reid saying she's a good choice?

[rilkefan]

If you told me yesterday Bush would pick someone recommended by Reid, I would have said, "That's how the system should work. Good on Bush". So, uhh, guess I have to say good on Bush.

[hilzoy]

rilkefan: Personally, I'm saying 'bad on Harry Reid.'

[hilzoy]

And Jeff: I don't know that she's horrible, exactly. That she has no discernible qualifications, that her main distinguishing characteristic seems to be fealty to Bush, that since there is no shortage of genuinely distinguished jurists this choice is a travesty: sure. But I know nothing about her substantive views.

[Slartibartfast]

[Ackbar]

IT'S A TRAP!

[/Ackbar]

Anyone have a better explanation?

[hilzoy]

Slarti: you laugh, but there's a serious school of thought on the right-wing blogs that says: this must be part of a very clever scheme by Bush, whose details are alas not yet clear to us. The phrase 'rope-a-dope' comes up a lot. Check out the Anchoress, for one.

[Edward_]

Freakin Finally!

"Mr. President, you've got some explaining to do. And please remember - we've been defending you these five years because of this moment."

That has been the only way I have been able to explain to myself the loyalty to Bush these long years. This restores my faith in the sanity, if not the wisdom, of the opposition.

[Slartibartfast]

You know, hilzoy, I take stuff like that with every bit as large of a grain of salt (ca. 1 meter on a side) as I would, for instance, a claim that George Bush is a long-term plant of the DNC for the express purpose of discrediting the Republican Party.

But Uncle Karl is in charge, so anything could happen.

[Jeff]

My problem is people are assuming this is all about cronyism. And are ignoring the fact that Bush might have picked her because she seems on the surface at least to be a more consensus nominee, if the Democratic majority leader recommended her.

People are making it out to be that Bush had many other viable political options. I'm not sure that's the case, given his weak political standing.

[Paul]

Can the Democrats just abstain from voting on Miers and let the Republican senators choose to put her on the court or not? I think I'd like to watch that spectacle.

I'm always delighted by the various 'rope-a-dope' theories of the Bush administration's behavior that get advanced by his supporters. There's something very medieval about those exercises in political theodicy.

[Slartibartfast]

Cass Sunstein understates:

A reasonable conclusion is that this nomination should be viewed with uncertainty and puzzlement. A silver lining: The uncertainty and puzzlement should not divide people along political lines.

[hilzoy]

Ah, Mark Schmitt weighs in:

"The reaction from the right to the Miers nomination should be a reminder of just why the Rove strategy of playing to the hard-right base is such a dangerous and unwise political choice: There's no turning back from it. It's like a Ponzi scheme, you have to continually borrow new money/enthusiasm to pay off the old, and you can never turn back.

You can never decide to turn your Ponzi scheme into an ordinary business, because you're in too deep. And that's exactly what's happening on the right: they have been continually promised that the big payoff would come with a Supreme Court nominee to replace O'Connor, and instead they get a giant, "Trust me, it'll work out," at just the moment when "trust me" won't work anymore.

And like any Ponzi scheme, when it collapses, the collapse is total, and absolute."

(His views on the nomination itself: "Miers is Fortas without qualifications -- a very bad model for the Court.")

And Ed Kilgore:

"If, as I've said, this appointment represents the giant balloon payment at the end of a 30-year mortgage the GOP has taken out with the Cultural Right, then Bush seems to be asking for yet another refinancing.

You have to remember that THIS IS THE MOMENT social conservatives have anticipated for decades: a pro-choice Justice steps down, and a conservative president gets the chance to send a name up to a Republican-controlled Senate. This is total cookies-on-the-line-time, and Bush offers up a personal retainer whose views are far more of a mystery than those of John Roberts."

[Jon H]

"If, as I've said, this appointment represents the giant balloon payment at the end of a 30-year mortgage the GOP has taken out with the Cultural Right, then Bush seems to be asking for yet another refinancing."

Bush found another deficit he can run up up up.

[CharleyCarp]

Just like with Roberts, the litmus test isn't Roe/Casey, it's Padilla and Hamdan. And you can bet Ms. Miers passes the real test with flying colors. Pres. H. Clinton will wield executive powers undreamed of by her husband.*

Actually, her http://www.legalreforminthenews.com/leaders/Miers/Miers_bio.html>bio isn't anything like Brownie's: this seems to have been a real law practice, and I'd be interested to know what exactly she did for Microsoft and Disney.

It's too soon to tell, of course, but this may be the best imperical test of Judge Silberman's thesis of a Greenhouse Effect we'd ever get from this Admin.

* And we all know what the President's response would be if you asked him what happens if all that executive power he's added to the position gets into the hands of someone with whom he has profound policy disagreements: 'ain't gonna happen.'

[st]

Does this remind anyone else of the process for picking VP Cheney in 2000? "I have consulted with my closest circle of personal advisors, and we agree that the best choice out of everyone in the whole entire country is one of my closest circle of personal advisors." How fortunate for Bush to be served and attended by such a retinue of the very greatest leaders and thinkers the nation has to offer! How fortunate, indeed, for us all!

[Captain Sunshine]

Bush found another deficit he can run up up up.

I wonder how long his supporters will keep voting to raise his personal debt limit? We might find out (but alas, probably not).

CS

[Cassini]

I have been searching to see where it says that President Bush can and will only nominate persons to the USSC that have been
"approved by" conservative right wing republicans. Can anyone help me with this?

[CharleyCarp]

Cassini, you might want to start with the President's campaign speeches.

[bob mcmanus]

Olasky

Marvin thinks she is ok;she will be fine on social issues. I trust Marvin.

[hilzoy]

Levin at The Corner: "I am actually hoping there are no more vacancies during this presidency."

-- well, so am I, but I wasn't expecting anyone at NRO to agree with me.

[Gromit]

Paul: Can the Democrats just abstain from voting on Miers and let the Republican senators choose to put her on the court or not? I think I'd like to watch that spectacle.

I'd think the last thing we need right now is for the Democrats to be less engaged.

[CharleyCarp]

Not very many reported decisions out there. She lost the class certification issue in the reported decision in the Microsoft case, and won the personal jurisdiction argument in the reported Disney case. Both in Texas' intermediate appellate court. Won a case for Bush in 2000 on standing grounds, lost her removal of another a couple of years back in the federal court.

There's nothing wrong with having someone who's actually worked these kinds of procedural issues sitting on the SC.

[hilzoy]

Sorry: collecting reactions is just too much fun, and I need all the fun I can get just now, since the rest of the news is too awful.

Joel Aschenbach at WaPo:

"Bush Nominates Totally Random Person for Court

The president carefully and deliberately selected as his nominee for the vacant Supreme Court position the first person he ran into in the hallway this morning. He has been up front about this technique all along, what he called "the dartboard approach." It could have been anyone -- an usher, a steward, a dog-walker, the guy carrying the nuclear codes. Liberals will rejoice that it wasn't Rove."

Originalisms (Yale Federalist Society):

"A terrible, terrible pick. Cronyism at its worst. It's one thing to staff the executive branch with loyal incompetents - they'll disappear when the Bush Administration does. But to try to cram one onto the Supreme Court - to put the country under this woman's thumb for 10, 15, 20 years - that's inexcusable. Bush had an incredibly deep bench to pick from this time; even if he wanted to limit himself to just female candidates, there are at least a dozen who are all genuinely qualified. Instead he picks Miers, who's astonishingly undistinguished and who's spent the last decade as a Bush apparatchnik.

This isn't about ideology. I frankly don't give a rat's ass who she gave money to when. She could be a Clarence Thomas clone - she could be the second coming of George-f***ing-Sutherland for all I care - and it would still be wrong for the President to treat the Supreme Court as just another patronage position into which he can put "his" people."

Legal Theory quotes the Federalist Papers:

"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."

And the always delightful Article III Groupie:

"From the perspective of style, A3G is even more distraught. Although White House Counsel Miers was looking sharp at this morning's Oval Office announcement, in a navy suit and nicely contrasting electric blue blouse, photographs of her on the internet reveal that she has had a succession of truly awful hairstyles over the years. Let's just say that Harriet Miers is not nearly as stylish as her fellow female short-listers -- such as Consuelo Callahan, Karen Williams, or Edith Brown Clement -- and leave it at that."

[Jesurgislac]

Maybe Reid recommended Miers because whoever else was on the possible pick list was worse?

(I mean, if she's that much of a nonentity, I do find it kind of hard to believe that if Reid had been asked "pick someone to be the next Supreme Court justice" he thought hard and out of all the possible nominees in the US.... picked Miers. OTOH, I can well believe he was given a list of half a dozen possibilities and told to say which one of those he would recommend.)

[Slartibartfast]

Here's a few more, hilzoy.

[hilzoy]

From Slarti's last link: a not-ObWi-safe reaction to Hugh Hewitt's leap of faith. Very, very funny (though it's worth glancing at Hewitt's post first.)

[Paul]

"Bush Nominates Totally Random Person for Court"

Wasn't it William F. Buckley who remarked that he'd prefer to be governed by random persons picked from the phone book than any of the members of the faculty of Harvard University? Well, I suppose now he's gotten his wish.

[JP]

Hmm. Well, if the mediocre deserve a little representation, I suppose the same could be said of the below-average.

The good news, and the reason why this doesn't bother me too much is that she's already 60. So my reaction in a nutshell is: "She's bad. But she'll die. So I like it."

[Slartibartfast]

Yes, I'm liking Hubris, but I keep forgetting it's out there. This, especially, caught my fancy. Rated R for language, G for visuals.

[bob mcmanus]

"She's bad. But she'll die. So I like it."

She takes care of her 93 yr old mother.

[Slartibartfast]

But her grandmother spells her so she can go on free-climbing expeditions.

[Jesurgislac]

She favors gay adoption, apparently, which should give the Anchoress a few moments pause once that sinks in. (The Anchoress is a Catholic lady who appears able to combine a perfect faith in God and the Catholic church with an absolutely terrifying faith in George W. Bush as God's representative on Earth.)

[hilzoy]

Yep: she submitted this report, which includes not just this: "Supports the enactment of laws and public policy which provide that sexual orientation shall not be a bar to adoption when the adoption is determined to be in the best interest of the child." -- but also this: "Recommends the development and establishment of an International Criminal Court."

Heh.

[Phil]

Yeah, but the Catch-22 there is that, in the jurisdictions where it matters, adoption by a homosexual or gay couple is per se not in the best interests of the child.

[Phil]

Er . . . to be clear, that's not what I think, it's what gay-adoption opponents think.

[Jesurgislac]

Anything's an improvement on a blanket ban, Phil.

Though I admit I was thinking mainly of the Anchoress's horrified state of mind as she has to choose between "Bush can do no wrong" and "Gay adoption is EVIL". I suspect she'll fall down on her own personal side of the fence, which will probably be something like "Bush was sadly deceived in a wicked woman". It's sad, and rather horrid of me, but I do find the Anchoress amusing in a terrifying kind of way.

[Slartibartfast]

Now, if you can use the ICC to coerce China into allowing adoption of its many (many, MANY) orphans by gays...

[bob mcmanus]

Yglesias makes a point about early Democratic affiliations in the 70's and 80's showing opportunism.

But the one I like is about her schmoozing.
(I have no doubts as to her conservatism) Bush has appointed a tag-team to the court. Roberts can work on the other justices intellectually, while Miers flatters and flirts and cajoles and works on them emotionally. Uhh, this is not meant to be sexist, but it does appear that Miers largest qualifications seem to be in the political, networking, manipulative area. Another great legal intellectual ego might just be competition to Scalia and insecurity for Thomas, that is, resented and resisted.

I could see a very powerful team here.

[hilzoy]

Jes: I find people like her amusing in novels. In real life, they scare me. Consider Christine Maggiore (the HIV+ AIDS denier whose kid died of AIDS-related pneumonia): the capacity for belief not guided by facts scares me in the real world, where it has consequences.

[Jackmormon]

What might be somewhat amusing is watching the Administration try to assure the base about this woman's conservatism while keeping information from the public and the Congress.

[freelunch]

"I'll take Big Business Republicans for $200, Alex."

"The answer is:

"Will vote for traditional big business values and doesn't really care about the political desires of religious zealots."

"Uh, who is Chief Justice John Roberts?"

"No, I'm sorry, it's 'Who is Supreme Court nominee Harriet Miers?' "

[SomeCallMeTim]

I'm (unfortunately) with Bob. I think we just got rolled again. In the best case, Reid made a deal with the WH and gave away something important. In the worst case, we just got a truly imperial Presidency.

And worry less about her competence - she'll have clerks to tell her which way to vote. In the last years on the Court, apparently Marshall didn't focus too much on the work.

[Anderson]

Hilzoy: there's a serious school of thought on the right-wing blogs that says: this must be part of a very clever scheme by Bush, whose details are alas not yet clear to us.

You know, this thought pattern comes up often enough that we should give it a name:

The "Intelligent President" theory, or IP for short.

Many decisions by the White House, such as the invasion of Iraq, made no sense at the time and even less afterwards. Republicans are therefore forced to believe in a higher entity to whom all these missteps are actually cunning moves towards a higher purpose. And that entity is George W. Bush.

Remember, Harriet Miers says he's the most brilliant man she's ever met.

The lack of evidence for IP shouldn't trouble you, because it's that very lack of evidence that makes the IP theory necessary and, evidently, plausible (to the Right, anyway).

Look for your local school board to mandate the teaching of IP in your district.

[freelunch]

"Remember, Harriet Miers says [Bush]'s the most brilliant man she's ever met."

Maybe it's just a really nasty bit of feminist sexism, she's only telling us that she's never met a smart man.

[Anderson]

I thought of that, freelunch, particularly since you can't be an unmarried adult any more without raising queries, so to speak.

(A Miers-Souter love match comes to mind; I think everyone at RedState would swallow their collective tongues and choke.)

But I'm very much afraid that she's not that interesting.

[cleek]

Many decisions by the White House, such as the invasion of Iraq, made no sense at the time and even less afterwards. Republicans are therefore forced to believe in a higher entity to whom all these missteps are actually cunning moves towards a higher purpose. And that entity is George W. Bush.

earlier, during a "criticim = aid and comfort" discussion, i came across a corollary to your theory: to the True Believer, it is a given that someone who criticizes Bush is wrong; thus the True Believer's task is merely to find out why that person is wrong.

[Anderson]

Excellent addendum, Cleek. Look for a great Republican mind to give us the Summa Republica, comprehensively demonstrating the rightness of Republican presidents in all their deeds ... Hugh Hewett seems to be a likely author.

Actually, now I feel bad, as if I've slandered the ghost of Aquinas. More of a Pio Nono figure is needed, for a declaration of (Republican) Presidential Infallibility.

[Fledermaus]

"In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met.

And that, simply, is why she was nominated. Obviously if she can recognize the amazing brillance of Bush, she is clearly qualified for the SCOUS in Bushworld.

Against prohibitions on gay adoption, donations to Al Gore, raising taxes in Dallas to pay for education. This is going to be fun - I hope Hewitt has a large supply of that kool-aid he's drinking, it seems that many on the right are going to need a refill.

[hilzoy]

Via Billmon, from the American Spectator's blog:

"Just spoke with a staffer for a conservative member of the Judiciary Committee whose boss is extremely unhappy about the nomination of Harriet Miers.

"We heard her name. We made it clear that she was unacceptable as a nominee on the basis of qualifications and her views, which we simply don't know anything about," says the staffer. "We worked with her on policy issues, though, before she was elevated to White House counsel and let's just say we were underwhelmed."

There is now talk of among some conservatives about a filibuster of the Miers nomination. Never mind the Al Gore donations or the money that was floated to the DNC when Miers was a managing partner in a law firm, those can be explained away as "good for the business of the firm."

Unfortunately, given the level of support Miers appears to be generating among Democrats, such a move appears impossible, though admirable.

According to several White House sources, few inside the building took the possibility of a Miers nomination seriously. Now that it's a reality, they are stunned. "We passed up Gonzales for this?" was one conservative staffer's reaction. "I don't know much about Gonzales, but I think I know enough that he's more of a conservative than Harriet is." "

[dmbeaster]

Instead it's cronyism and a mess. I so don't understand why the latter is preferable to Bush.

Because Bush's sole ideology is cronyism. This pick proves that more than anything.

[Fledermaus]

There is now talk of among some conservatives about a filibuster of the Miers nomination.

I don't think it has a chance of happening, but never the less my irony meter just exploded.

[Jesurgislac]

Vardibidian">http://kith.org/vardibidian/journal/show-entry.php?Entry_ID=10004">Vardibidian asks:

Apropos of nothing at all, if a President of the United States had committed crimes, possibly impeachable crimes, possibly not impeachable, and was perhaps under grand jury investigation, and had siphoned off the nation’s treasure into the pockets of cronies, and had gained election (twice) through questionable methods, and had allies under indictment and investigation, and was generally as corrupt as it is possible to imagine the President of the United States being…

...wouldn’t he nominate his own personal attorney to the Supreme Court?

[Anderson]

I would hope the Dems would get their opposition motors into gear, esp. given Miers's anti-choice efforts re: the ABA.

Politicians are unfortunately very poor at following the rule that, when you don't know what to say, you say nothing.

[Slartibartfast]

No. What on Earth would SCOTUS possibly have to do with impeachment?

[Gary Farber]

"That she has no discernible qualifications,"

I knew it was a good idea to finally post this, rather than keep repeating myself.

Since George W. Bush nominated Miers, my presumption is that she's a choice I'll hate. So, setting aside discussion of Ms. Miers, myself, for the moment, I have to point out that the "qualifications" for the Supreme Court are, basically, wisdom, and ability to write. Nothing more, nothing less.

If we're rejecting people because of lack of "qualification," "qualification" being defined as "experience as a lower court judge, which only resembles being on SCOTUS at all insofar as it's an appellate position," then we must, to be consistent, reject and retroactively object to Earl Warren, Abe Fortas, Byron White, Tom Clark, Robert F. Jackson, James F. Byrnes, Wiliam O. Douglas, Felix Frankfurter, Stanley Reed, Owen J. Roberts, Charles E. Hughes, Pierce Butler, George Sutherland, Louis D. Brandeis, James C. McReynolds, and William H. Moody, for starters. And damn that unqualified Hugo Black.

I absolutely hate the idea that the SCOTUS should consist of only appellate justices. It's never ever been that. It shouldn't be that. That's not the job. It's an absurd technocratic misconception to reduce the job of the Supreme Court of the United States to being a glorified appellate judge. Appellate judges must follow what the Supreme Court thinks and says. The Supreme Court must follow their conscience and intellect.

These, it turns out, are different skills entirely.

In the long run, turning the Supreme Court into a self-perpetuating body of florified former SCOTUS clerks is a horrible idea, in my view. It's a perversion of the political nature of the court, and of our tripartite system of government. The Supreme Court of the United States of America is, and must be, far larger than a set of super law clerks. It must stand for justice.

And appellate courts are not the only source of justice in the land.

Now let's get back to savaging Ms. Miers, and keep an open mind about the right of the next Democratic President to appoint a non-appellate choice to SCOTUS, shall we? Heaven forfend President Bill Clinton had appointed that "unqualified" Mario Cuoma, after all. Or that sleazeball crony, George Mitchell.

[LizardBreath]

I'd like to take responsibility for misspelling "Cuomo" in that last post.

[Gary Farber]

"What on Earth would SCOTUS possibly have to do with impeachment?"

Rather obviously, in a direct sense, nothing more than providing a Chief Justice to preside, and indirectly, presumably someone is expecting something along the lines of a case that requires the President to surrender tapes -- not literally, but a decision that the President must comply with the law, that sort of thing.

One can compare one's seer-like visions of the future with another's, but the question doesn't seem to have a mysterious answer.

[Gary Farber]

"And appellate courts are not the only source of justice in the land."

Before I have to in response to someone, I should have preemptively noted that appellate experience isn't bad, and I certainly wouldn't want it unrepresented on SCOTUS. I just want it balanced with other perspectives.

And it should be obvious that I'm not arguing that all non-appellate nominees are equally good, nor that there shouldn't be some reason to believe the nominee is indeed wise. I'm not, therefore, discussing, at the moment, Ms. Miers at all. I'll be very pleasantly surprised should she turn out to be a choice I'm at least as comfortable with as Anthony Kennedy, say.

[Slartibartfast]

Oh, sorry, I should have asked what all this might have to do with Meirs being appointed.

[Gary Farber]

"Olasky."

Seems to mostly boil down mostly to saying that "she totally committed her life to Jesus."

"I'd like to take responsibility for misspelling 'Cuomo' in that last post."

As well you should! I merely wound up with a post with a typo. Clearly someone else is to blame. If not you, I would have pointed at Mayor Nagin and Parish President Broussard.

[Bernard Yomtov]

Well, if it gets John Podhoretz banging his head against concrete, and hence unable to write any columns for a while, it's not all bad.

[liberal japonicus]

I tell you, if were on the right, it seems that the third way of 'why is this bad? It's only one seat on the Supreme Court' for dealing with this nomination is the one I would go with.

[DaveL]

So, setting aside discussion of Ms. Miers, myself, for the moment, I have to point out that the "qualifications" for the Supreme Court are, basically, wisdom, and ability to write. Nothing more, nothing less.

While I agree with the general point that experience as an appellate judge shouldn't be a prerequisite to appointment to the Supreme Court, I think you're overstating the case a bit. There is a craft to lawyering. I'd be perfectly happy with someone who had a distinguished record as a litigator--preferably with significant federal court and constitutional law background--and ecstatic if that person also had a term or two in Congress or a state legislature. Miers doesn't have that. Her resume as a lawyer is no more impressive than many, many others', and the distinctions she's achieved appear to be in areas that reward networking and close-quarters politicking more than legal excellence. It's perfectly possible to conclude that she's unqualified (at least in the sense of "not demonstrably qualified," which ought to be the standard here) without relying on her lack of judicial experience.

[Gary Farber]

"Because Bush's sole ideology is cronyism. This pick proves that more than anything."

How did Roberts prove that?

[hilzoy]

Gary: I agree that 'qualifications' should not be read as 'appellate court experience'. Personally, I think Miers is unqualified under a much broader definition. She's not a particularly distinguished lawyer, or for that matter a particularly distinguished anything, and as far as wisdom goes, thinking GWB is the most brilliant man she has ever met more or less rules out her possessing much of it, in my book.

[Ugh]

She's not a particularly distinguished lawyer, or for that matter a particularly distinguished anything, and as far as wisdom goes, thinking GWB is the most brilliant man she has ever met more or less rules out her possessing much of it, in my book.

Twice elected President of the United States; appointed two Supreme Court Justices (including the chief, so far); invaded and overthrew the Taliban and Saddam Hussein (so far); passed massive tax cuts; presided over republican rule in the house and senate; and does whatever the f*** he wants.

He's got "winner" stamped all over him, or maybe "tyrant."

[Sebastian Holsclaw]

"There is a craft to lawyering. I'd be perfectly happy with someone who had a distinguished record as a litigator--preferably with significant federal court and constitutional law background--and ecstatic if that person also had a term or two in Congress or a state legislature."

I don't like what I see of Miers, but O'Connor wasn't a very good Supreme Court Justice and she fulfills your criteria nicely.

[Jesurgislac]

Hilzoy: and as far as wisdom goes, thinking GWB is the most brilliant man she has ever met more or less rules out her possessing much of it, in my book.

Thinking it would be: saying it - and saying it a lot - is probably very wise, if you work in the Bush White House.

For a given value of "wise", of course.

[Gary Farber]

"He's got 'winner' stamped all over him, or maybe 'tyrant.'"

Generally speaking, the original Greek tyrants gained power via popular support, you know; it wasn't a pejorative word. Analogically, a Miers-equivalent at the time would therefore agree. (Further analogy tends to break down there, unless anyone wishes to argue that we didn't already have democracy, and that recognition of Bush's tyranny will result in later development of greater democracy.)

[DaveL]

I don't like what I see of Miers, but O'Connor wasn't a very good Supreme Court Justice and she fulfills your criteria nicely.

I don't know much about O'Connor's private practice experience, so I'm not sure how well she fits that criterion, but I'm also a bit uncomfortable with the idea that O'Connor has been a lousy justice. She's certainly infuriating at times, and maybe if I read more of her opinions I would be convinced of her lousiness. OTOH, there's a lot to be said for having at least one person on the Court who pays close attention to the facts and the practicalities and works at avoiding overreach (in the sense of opining more broadly than necessary to decide the case at hand). My tentative take on O'Connor is basically the same as my take on Scalia: I wouldn't want a whole Court of them, but one isn't necessarily a bad thing.

Having said that, cases in which O'Connor and/or Kennedy are the deciding votes do tend to produce some really ugly opinions.

[Gromit]

84 comments and Katherine hasn't weighed in? Should somebody call to check on her, maybe?

[LizardBreath]

My tentative take on O'Connor is basically the same as my take on Scalia: I wouldn't want a whole Court of them, but one isn't necessarily a bad thing.

On O'Connor, I don't mind the way she votes (I agree sometimes, I don't others), but the opinions she drafts are awful. Pragmatism is one thing, but give the lower courts a chance to figure out what the rules are, okay? (This isn't directly applicable to Miers, who neither seems to be the worst person in the world, nor to have any obvious qualifications for being on the Supreme Court.)

[bob mcmanus]

"Seems to mostly boil down mostly to saying that "she totally committed her life to Jesus."" ...Farber

The strength of the recommendation or at least forbearance of criticism is based on who Marvin Olasky is. A wingnut among the wingnuts. A Texas Christian conservative f the very highest rank.
....
I would oppose Miers on many grounds, but my opposition really doesn't matter. What offends me is not a lack of qualifications; nor a close friendship or association with the President; nor the fact that she worked for the administration. What offends me is just how closely she worked with the administration, how near she was to the decision-making, that for years she vetted every document that crossed his desk.

Was many of our objections to Gonzalez based merely on a paper trail, or on an assumption that that he was closely involved with entire area of questionable and likely unethical if not illegal decisions? It is not "guilt by association" but "guilt by physical proximity" I am certain Harriet Miers saw and heard and read things that the Bush administration would find embarrassing, if not grounds for impeachment. Someone that close to every conversation should be disqualified. I am also certain if I knew what she knows I would call her completely corrupt, if only by acts of omission,

[Jackmormon]

DaveL, that's basically how I've felt about O' Connor as well.

Sebastian, could you explain what you don't like chez Miers? I've forgotten or lost track of where you are on some of the hot-button issues--but of course the cronyism issue and the lack of, um, obvious qualifications would be bright-red distractions. You don't have to explain if you don't like.

[Phil]

Along Gary's lines of argument, and given some of the very complicated issues that often arrive in front of the courts these days, it would delight me to no end to see someone with superlative professional accomplishment in a non-legislative or non-lawyering field on the Supreme Court. Like an MD. Or a PhD economist.

[DaveL]

O'Connor has certainly written some poor opinions, but she's far from alone in that. I'm not a fan of 19-factor balancing tests, but trying to provide clear guidance to lower courts can become a license to distort the facts of the case in order to ride your own favorite doctrinal hobbyhorses (paging Justice Scalia!). Ideally we'd have Justices whose strengths complemented each other and whose weaknesses were balanced by others' strengths. I don't think we've had that in recent years. But an improved version of O'Connor (now with 40% more analytical rigor!) would be a valuable part of my ideal mix.

[Jackmormon]

I just googled the Valley View Christian Church, which, according to Olasky, is the church Miers attends in Texas. Here is the mainpage (link), and here are this fall offerings in the ladies' bible study group--their words, not mine (link). Biblical marriage, I suspect so. There are three options, two of which seem, on their face, perfectly ghastly. The latter, the six-week study of "Joy" through Paul's letter to the Philippians will have a source text four chapters long--five pages, in my edition. Unlike many of Paul's writings, this letter doesn't directly address marriage. The central message seems to me summarized in 2:14-15: "Do all things without murmurings and disputings: That ye may be blameless and harmless, the sons of God, without rebuke, in the midst of a crooked a perverse nation, among whom ye shine as lights in the world[.]" I'm starting to get a sense of what kind of gender politics her chosen church advocates, at the very least.

I really do hope that I'm being unfair to Miers here. However, she is very likely to be more socially and politically conservative than O'Connor was. This administration has been extremely ideological and unusually cloistered, and she's spent, what is it? 10 years?, at the heart of it.

Of course, giving social conservatives any reason to be happy about the Miers pick is probably counterproductive, so I'll be quiet now until the VRWC ropes in the doubters. Then I'll join with McManus in screaming in low, dark tones.

[CaseyL]

It strikes me that appointing dubiously-qualified Justices is a clever tactic if your strategy is to undermine using the Court as a final arbiter/interpreter of Constitutional issues.

For all that conservatives criticize "results-driven Court reasoning," isn't that exactly what they want the SCOTUS to do? Decide ahead of time to overturn Roe, Casey, Lawrence, Hamdi, Miranda and Gideon?

Miers' being pretty much a blank slate so far as legal opinions and reasoning counts for less than her born-again Christianity, which occurred since her contributions to Gore and Benton, and thus negates those long-ago flirtations with moderate politicians.

Her probable decisions on Roe et al. can be inferred from that. The legal reasoning she'll present for overturning those decisions is irrelevant, something her clerks can do.

[Bernard Yomtov]

thinking GWB is the most brilliant man she has ever met more or less rules out her possessing much of it, in my book.

Let's not be hasty, hilzoy. She seems to have spent much of her life in Texas.

[Gary Farber]

"...it would delight me to no end to see someone with superlative professional accomplishment in a non-legislative or non-lawyering field on the Supreme Court. Like an MD. Or a PhD economist."

I have mixed feelings. I wasn't trying to suggest that knowledge of the law, and most importantly, its methodology less than its substance, was either irrelevant or unhelpful. I do feel that diversity in life experience, in American cultural experience, and in knowledge of different fields, is helpful on SCOTUS.

I don't want to go so far as to suggest that I want a majority of SCOTUS to lack legal training, though. While I wouldn't be close-minded about having a couple of non-lawyers entirely on SCOTUS, I doubt I'd want many more, and I'd want to think carefully about each, although obviously one thinks carefully about the qualification of each nominee. But there certainly is a distinction between the SCOTUS and a 9-member superlegislature, and I'm not such a caricature of a liberal as to desire SCOTUS to be the latter.

In other words, I'd be much quicker to be comfortable with an economist with legal training, or a lawyer-economist, or just one on the SCOTUS, than I would be with a SCOTUS that was majority non-lawyer-at-all. Diversity on the Court should include appellate and legal experience, as well as political experience, and personal diversity, in my view.

Frankly, trying to pick only 9 human beings to be both wise, and not only from one small segment of society, is an almost impossible task to do by any consistent or sensible criteria that winds one up with a consistent result, it seems to me. The whole endeavor is bound with arbitrariness, although that's also no excuse for justifying Roman Hruska's "even the mediocre deserve representation" line of thought regarding Nixon's nomination of Carswell, or any given nominee.

Part of the reason for focusing on "qualifications" and appellate experience is to try to bring some rationality to the system, and it's entirely understandable. It's something of a chimera, because ultimately there will be no such consistent and full rationality, and because trying to strain all the potential candidates through such an exclusion winds up excluding too many good people while guaranteeing nothing but that only one category of people will be on SCOTUS, but the truth is that there's no real way to determine if someone is properly "qualified" for SCOTUS save through hindsight. The rest is just guesswork, or picking only one very narrow type of candidate.

[J. Michael Neal]

With regards to Harry Reid's place in all of this, I don't know what sort of deal he may have cut, or even whether he's cut any. However, all of the quotes of public praise that I've found indicate that he called her the girl with a great personality. For a Supreme Court nominee the praise was extremely faint.

[Gary Farber]

It's probably obvious, but what disturbs me about Olasky's assurances about Miers to the faithful (and, yes, Bob, I'm mildly familiar with Olasky), is the, well, obvious: that Christian conservatives should find it reassuring to hear that a candidate about whose legal positions they know little is One Of Our Kind Of Fundamentalist Christians are being assured, in essence, that legal philosophy and the law matter far less in the choice of this nominee than the notion that her Properly Moral Christian Beliefs will steer her to being The Right Kind Of Justice.

Regardless of any specifics, the notion that that's a respectable line of argument in our system is, to say the least, distressing. (I doubt I'll find much argument here, but if anyone would like to, just try switching "Christian" for "Satanist" or "Hindu" or "Shi'ite," and see if you still want to make the argument.)

Obviously, surprise that anyone would make that argument is the furthest thing from my mind. But what I have to work on fathoming is how people can actually justify that sort of reasoning in their own heads. "The law should be determined according to how it matches with Christian principles"?

I mean, how does Olasky's line of assurance actually play out in the heads of those he seeks to reassure? "Adherence to Christ trumps law"? "The more Christian law is, the more just it is"? "A good Christian couldn't vote for immoral law"?

Anyone want to help me out here? Ideally, a supporter of Miers and Olasky would answer far more interestingly and helpfully than an opponent, but an articulate one is unlikely to respond here, odds are.

[liberal japonicus]

I don't mean to go out on a limb, Gary, but I think that Bob's Olasky line is meant to be ironic. If it's not, the Rapture is at hand.

The Reid endorsement is the thing that I find most bizarre. Here is I think the most complete account of it.

[Katherine]

I have a job these days...started last week. No comments during the working day.

I don't know a damn thing about Miers.

If she stonewalls at the hearings, as I fully expect her to, I am really going to start to get annoyed. Ciphers can work out well--Souter's my favorite current justice--but I don't like it when the administration knows someone very well and we don't know anything about them.

I'm not real sure what he's thinking politically here. Wouldn't someone like McConnell or Glendon seem both much better qualified and harder for the Democrats to attack in good conscience, and MUCH more congenial to the right? Though they would not be safe choices for Bush if executive power is the real litmus test.

[Gary Farber]

"I don't mean to go out on a limb, Gary, but I think that Bob's Olasky line is meant to be ironic."

Obviously Bob was conveying his impression of what Olasky and like-minded folks think. Um, I'm not sure what else to say, save that if that wasn't obvious, well, I really don't know what we're talking about, beyond what degrees of obviousness might be. Which is to say that I don't know what we're now talking about, I'm afraid.

[idook]

I heard Reid on the radio. He was enjoying himself, I think, praising Miers as a "trial lawyer", with emphasis. I think he may have caused a run on blood pressure meds in right wing circles...