Harriet Miers should not be our next Supreme Court justice

Saturday, October 22, 2005
I have changed my mind regarding Harriet Miers. She should not---and will not be confirmed. It is becoming more obvious that the well meaning George W. Bush does not have his act together in this particular instance. Previously, I thought Miers is a convinced legal originalist. This may still be the case. Nonetheless, we shouldn’t take the risk. We are now finding out that she apparently was a gung-ho affirmative action advocate. My fear is that Miers is an intellectual chameleon. She puts her finger into the wind and sees where the wind is blowing. I never held it against Miers that she did not obtain an “elite” education. This actually could be something positive. Unfortunately, it seems that she has done little informal reading of constitutional law after finishing school. Even Republican senators wanting to give her a chance are underwhelmed by her intellect. I presently can’t imagine her nomination getting out of committee.

The recent hullabaloo over Tom DeLay and the vicious attacks on Karl Rove and Scooter Libby should scare us all. In each and every case, we are witnessing a perversion of the legal process. Post modernist interpretations have replaced the original intentions of the lawmakers. There is never a solid guarantee regarding the final outcome of a Supreme Court nominee. Perhaps John Roberts may prove disappointing? Earl Warren and Harry Blackmun certainly were. President Eisenhower considered Warren one of the greatest mistakes of his entire life. It is prudent that we increase the odds in our favor. Harriet Miers is a long shot. President Bush can do a lot better.


Nunzia said...

I agree. This nomination MUST be defeated.

MeaninglessHotAir said...

President Bush can do a lot better.

That's probably true in the abstract.

But down here on Earth, exactly how could he do that? We have a Senate which must pass the nomination, and, contrary to the fondest hopes of most "social conservatives", there is a clear majority which is unwilling to support an openly anti-abortion justice.

There seem to be two groups arguing against Miers before she has even had a chance to open her mouth to defend herself. On the one hand, the spoiled "neo-con" scions of the intellectual upper class who believe she is not quite "top drawer" enough for their tastes and who imagine that anyone cares.
I think we've beaten that horse sufficiently dead.

On the other hand, there are the hard-core anti-abortionists who are living for the day that abortion is completely illegal again.

Surprise! That day isn't coming. Miers was probably the best bet for a "social conservative" who could be slipped past the Senate by Bush. Future candidates will almost surely be even less to the taste of "social conservatives" than is Miers, but it will be too late.

David Thomson said...

“We have a Senate which must pass the nomination, and, contrary to the fondest hopes of most "social conservatives", there is a clear majority which is unwilling to support an openly anti-abortion justice.”

And what does abortion have to do with the price of tea in China? Am I being facetious? No, abortion is not going to be eradicated if Roe vs. Wade is reversed. The matter will merely be decided by our elected representatives---and not nine unelected officials wearing black robes. Both Laurence Silberman and Raoul Berger were personally pro-abortion, and yet adamantly believed that this 1973 judicial decision is a constitutional abomination. The reasoning underpinning Roe vs. Wade is absurd to say the least. It is premised upon those logically unjustifiable “penumbras” and “emanations.” A Michael Luttig or a Miguel Estrada can be readily be confirmed. There are the minimum fifty one votes to overturn any attempt to filibuster the process.

terrye said...


I disagree. My understanding is that whatever history Harriet Miers has had in terms of affirmative action has been within the confines of her law firm.

you know the real world.

Not the world of scholars etc. where it easy to take principled stands when you have tenure.

By the way I was a supporter of affiramtive action for years.

When I was a senior in high school girls could not take senior chemistry in my school. The lab was not large enough and since we girls were all going to grow up and have babies we really did not need chemistry anyway. Theink they could get away with that now?

Hell, no and whether people like to admit it or not it has something to do with affirmative action.

And you know what else? I am tired of people acting as if they own the damn Supreme Court. The last time I looked this is a big damn country and people like me voted just the same as the purists and the top drawer fanatics.

I am sure there are lots of things in all these people's back grounds that could create a false impression of the individual if taken out of context.

I used to think that one thing conservatives had over liberals was the ability to look at things in fair and open minded way without emotion as a guiding force.

I guess I was wrong.

I hope the president does not withdraw Ms. Miers but I would understand if she withdrew herself.

But I will never feel the same way about certain people on the right.

I know they think that if they can bully Bush and terrorize and prejudge Miers well enough and long enough to get what they think they want...then everything will just be peachy keen.

kiss and make up.

Well forget it. I am truly disappointed in a lot people.

Let the woman speak.

terrye said...


I don't think Estrada or Luttig could get enough votes when push came to shove. I don't think they could get cloture.

Hell, they could not even get Bolton through...and that was back in the days when conservatives were saying things like the president deserves his nominee and the nominee deserves an up or down vote. That did not last long.

Did it ever occur to anyone that Bush may know more about this than the shrieking ninnies at the Corner?

It could be the above mentioned people do not even want it. After all when the antiMiers camp gets done savaging the nominee there may be a lot of qualified people that just plain pass on the process.

It is called biting off your nose to spite yhour face.

vnjagvet said...

Thus far, I have confined my blogs and comments on this subject to predictions and commentary on some of what I considered to be ill-founded arguments against this nomination. My primary argument has been, "let's see how she performs in the hearing".

As I noted the other day, I was a bit put off by the nominee's less than stellar response to the Senate questionnaire, but still thought she could resurrect her chances with a first class performance in her hearing.

I am not sure now whether she will even have a chance to be heard. There is a certain momentum to this type of process that becomes more and more difficult to counteract.

Orin Kerr on Volokh has been keeping tabs on a "tipping point". If one has been reached, I believe it is against the nomination. That does not make me happy because I would like to see a practicing business litigator on the Supreme Court. It's looking less and less like that will happen.

But I still think she should be heard.

David Thomson said...

I have long argued for affirmative action remedies based upon the minority candidate getting the nod when everything else is equal. My position irritates both liberals and conservatives. At this moment, Harriet Miers may drop out due to the possible embarrassment of not being able to hold her own with the Republican senators. Some of these individuals are more than willing to give Miers a chance to prove herself. Regrettably, it appears that she does not possess the sufficient intellectual depth to impress the total body of senators. What if I’m jumping to an invalid conclusion? If that is indeed the case, then Miers will be easily confirmed. At this moment, little is expected of her. The bar has been set very low---and she may easily surpass all expectations.

terrye said...

The other day I was looking at powerline and one of the posters, [I think it was Paul], pointed out that some people were calling the woman an idiot because of some supposed mistake she made on a question that had to do with proportional representation.

Well it turns out she was right, within the original constext of her statement. The problem was people were piling on so fast they did bother to get their facts straight.

The same seems to be true with the affirmative action action in that the state bar has certain requirements. According to someone who knows her, Judge Echon, she has reservations about the concept. But once again the lynch mob is hard at work and we only get part of the story.

The same is true with the whole thing about the Lottery and her firm's dealings with Bush in the past, whether it be in politics or the Guard Controversy or whatever. If Bush does not think he did anything wrong, then he may not take the criticisms concerning these issues seriously. After all people always bitch and Miers has spent years in the real legal world where things get messy.

She should be allowed to answer questions on any and all of these subjects.

Even serial killers are given a chance to defend themselves.

But she may back out and if she does I hope the lynch mob is proud of itself.

But the Democrats will be busy digging up dirt on any other nominees and my guess is they will feel that just about anything is fair game. Why shouldn't they? And some of these people the pundits are so enamored with might have some embarassing things in their own background as well. Most people do.

terrye said...


At this moment more is expected of her than any nominee I have ever seen put before the Senate.

Intellectual capacity? How much intellectual capacity does it take to impress a Senator?

Syl said...

I'm with Terrye on this one.

All the way.

terrye said...


George Will is threatening death and destruction to all who defy him.

What a pompous bafoon.

What is it they say about pride and a fall?

When I look at the headlines I can see the joy with which the journailists are reporting a low in the presidents's approval rating.

Well if the NRO and Krauthaamer etc don't accomplish anything else, they will have managed to do the opposition's work for them.

With friends like that Bush does not need enemies.