Thursday, October 06, 2005


Everyone knows by now that many prominent conservatives (variously called "movement conservatives", "hard-core conservatives" or "sanctimonious conservative purists") are at best disappointed and in many cases outraged by Bush's nomination of White House counsel, Harriet Miers to replace Sandra Day O'Connor on the Supreme Court. There are also many equally prominent conservatives that are leaping to defend Bush and his nominee (I can't quite tell how the numbers work here, but my sense is that the angry faction is larger.) As is becoming depressingly usual with conservatives, however, neither the objections nor the defenses seem terribly principled. Here are some comments that I think miss the mark:

Negative comments first:

Michelle Malkin:

What Julie Myers is to the Department of Homeland Security, Harriet Miers is to the Supreme Court. [...] 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.
The aspersions cast on her qualifications seem more like the words of a Democrat. We would do well to remember that Clarence Thomas was also accused of lacking experience. The cronyism business is irrelevant. If we knew that she was a good candidate, we wouldn't care that she was close to Bush. In any event, neither of these criticisms has anything to do with Constitutional concerns.

  1. She's 60. There were lots of highly qualified younger candidates out there who would have sat on the court for decades.
  2. She has no judicial experience.
  3. She has no public track record of proven conservative judicial values (what happened to Bush's 2000 promise to appoint people in the old of Scalia and Thomas?). How do we know she won't be another Souter? or Kennedy?
  4. She's a Bush crony, which is an unfortunate choice for an administration that has been fairly charged with excessive cronyism (anybody remember ex-FEMA head Mike Brown?).
  5. Her resume pales in comparison to those of some of the other leading candidates.
  6. Why is the leader of a party that is supposedly against affirmative action making an appointment that can only be explained as an affirmative action choice?
  7. And if Bush was bound and determined to make an affirmative action choice, why not go with a more experienced and qualified woman like Edith Jones or minority like Emilio Garza?

Here we see the charges of inexperience and cronyism again, with quite a few more added. He has a good point about the lack of paper trail, about which I will have more to say later, but what are we to make of the first charge? The suggestion that her age disqualifies her because we need someone whose influence will extend "for decades" is a blatant power grab. And how does this mesh with the call for someone more experienced? Add that to the embarrassing and unwarranted suggestion of affirmative action, and this is easily the most disappointing criticism I have read. I am usually in agreement with Bainbridge, so I expected better.

This is actually a complicated post by both John Hinderaker and Paul Mirengoff and since it is mixed negative and positive, I am not sure which category to put it in. But several of the above points are reiterated, including the issues of age, gender and lack of qualifications. But the chief point seems to be that she wasn't some other conservative judge, which isn't very substantive:
But the bottom line is that he had a number of great candidates to choose from, and instead of picking one of them--Luttig, McConnell, Brown, or a number of others--he nominated someone whose only obvious qualification is her relationship with him.
Since the PowerLine post combines the typical criticisms with the typical defenses, I will use that as a segue into the positive comments, mostly by Hugh Hewitt and his disciples.

Hugh Hewitt:
He seems to have a single point, which he expresses in a number of different forms: we ought to trust the president. First he quotes approvingly this passage from Douglas Kmiec's Washington Post article:
But, it is claimed, she is so unlike John Roberts. In fact, though, Miers is exactly like Roberts in one crucial aspect: They are both steadfast adherents to a judicial ethic of no personally imposed points of view. The cognoscenti snicker when the president reaffirms his criterion of judges who will shun legislating from the bench, since to legal realists, it is inconceivable and to political ideologues it is a missed opportunity. They all do, they all will, goes the refrain. To which Roberts repeatedly answered: No, not this umpire. The same answer can be expected from Miers as she makes her bid to join the officiating crew.
He then criticizes Ramesh Ponnuru for not addressing this central argument in his (admittedly snarky and irrelevant) response. But there is no central argument here, only an assertion that Miers is a strict constructionist. While that may be true, no facts are offered in support of it, merely speculation. (Hewitt, in an update, says this is not an "assertion" but it is a "fair assumption". The distinction is lost on me.)

Hewitt more recently posted an excerpt from an interview with "Noel Francisco, Scalia clerk, Luttig clerk, former Associate White House Counsel, Federalist Society member" in which the latter asserted:
I think the world of Harriet Miers. I think that Harriet is the fulfillment of the president's promise, yet again, to put forward individuals who are going to strictly apply the laws, and not make it up as they go along.
Fine, but once again, this is not evidence merely an appeal to authority.

Carol Platt Liebau: Here was an early post that irritated me:
Biblical fundamentalism is, in a sense, analogous to strict construction, insofar as the idea is that the words of a given text say what they mean, and mean what they say. Almost literally.

If Ms. Miers' approach to jurisprudence is similar to her approach to religion, conservatives may be in fine shape, indeed.
This is really just more speculation, and in fact misguided, since many fundamentalists are only selectively literalist. They routinely ignore much of the Old Testament, for instance and tend to interpret the New in light of certain eschatological assumptions.

Liebau also makes the argument that we need to choose who to trust:
And if that's the case, then it's just a matter of conservatives deciding whom (President Bush or the conservatives opposed to his choice) they will trust on this nomination. On the one hand, President Bush (and VP Cheney) are assuring people that her judicial philosophy is consistent with theirs. On the other are a lot of disappointed people saying, "But how do we know that?" and pointing to statements or writings from candidates they would have preferred more.

Well, we don't know. And it's unsettling, to be sure. But it's worth remembering that no one -- no one -- can predict with absolute certainty how any nominee will vote once he/she is on the bench. While his/her existing body of work provides hints and clues, nothing says that the views can't or won't change. And other than that, all we have are the assurances of well-placed conservative opinion leaders who "know" the potential nominees, just as President Bush and VP Cheney say they "know" Harriet Miers.
It is true that past performance doesn't necessarily guarantee future performance. But we need some data on which to base a judgment and past opinions are at least an indication of what type of thinking the individual is inclined to pursue.

But, Ms. Liebau has more recently come to her senses and is saying precisely this:Here for instance, but especially here:
It's time for the Bush Administration to start giving conservatives some more information about Harriet Miers. Of course, one political calculus would be that anything making the Miers nomination more palatable to conservatives would "upset" the liberals.

Well, so be it. At this point, the President has bigger problems with his base than he does with the Democrats. Chances are that even if a fair amount of very favorable information (from a conservative perspective) comes out, the Dems aren't going to complain about it -- because they aren't going to want to gamble that the President would choose another nominee more to their liking. And in the meantime, there would be more criteria for assessing the quality of the nomination.
The power of the Supreme Court is such that giving the President the benefit of the doubt is not the most rational course. We need to be assured that this will not prove to be a long-term mistake, and the only time for that assurance is now -- before the appointment becomes irreversible.

Update: Bainbridge makes that same point I do in regard to Hewitt's take on the Ponnuru/Kmiec debate:
Wrong, wrong, wrong. The problem is that people like Hewitt and Kmiec want us to take on faith the proposition that Harriet Miers will "shun legislating from the bench." Yet, neither Hugh nor Kmiec marshall any evidence from Miers' record to support that proposition. Hugh's repeated card - and its the only one he has to play, in my view - is to ask us to trust Bush.
He then goes on to list several reasons he opposes Mier's nomination. Some of them are good points and worth reading, but he does reiterate some of the same lame arguments I mention above. But at least his argument seems to be coming into focus.

Update: Whoops! It looks like my line "there is no central argument here, only an assertion" has already been said. Ponnuru made it here, in response to Hewitt's criticism. This is probably what prompted Hewitt's update. I evidently missed a page in this hymnal.

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