As everyone knows by now, President Bush has nominated Harriet Miers, the White House counsel, to fill Sandra Day O’Connors slot on the Supreme Court.
I’m willing to assume, for the moment, that she is a solid conservative and will be an acceptable justice. It still seems that this was a politically foolish pick, one which will allow the Democrats to continue their cronyism line of attacks, while at the same time failing to rally Bush’s base to his side.
52 comments:
If Bush were running again, I would agree with you 100%. I think his first objective is getting someone confirmed who he can trust. I am pretty sure that objective will be achieved.
His second objective is probably to set the table favorably for any other nominations he may want to make. I think this nomination fills the bill for this objective as well.
vnjagvet
I suppose that by the time the 2006 elections come around, we will have some idea of what type of justices Roberts and Miers will be.
If even one of them turns out to be a disappointment than it's quite possible that the GOP will lose the Senate majority.
Regardless of that consideration, this pick seems to make no sense in the immediate term. It will encourage the Democrats and discourage the conservative base. It just appears to be a politically tone deaf move. Since the votes were there for a Luttig or Alito, I’m really failing to see what was gained by this pick.
I can't speak to Miers' qualifications, beyond echoing what others have said about the appearance of cronyism, somewhat mitigated by the fact that she doesn't seem to be exactly an unknown.
I can speak for myself, however, and I know I wanted a fight. Which makes me a bit leery of my judgement in the case.
What is the potential impact on the next presidential race? I think many conservatives were open to the idea of a “social liberal” like Giuliani because of the assumption that Bush would have sorted out the courts. If the Supreme Court is as big a mess in 2008 as it is at present, then that no longer applies. The necessity will be for a more conservative president.
David
Some conservatives are starting to hope that he does not get to make any more picks.
I am going to bet that Miers will be attacked on her membership in an evangelical church and that there will also be sly attempts to out her as a lesbian because she is never married. I think there will be a fight, after all, if not in the Senate, then with the Democrats' left wing. This will no doubt rally the Republican base. Some information here.
I know nothing about Miers whatsoever and this is not my fight. But one thing is clear to me: the Democrats are itching for a fight. They don't believe they lost; the battle must go on.
Chuck, check Wonkette
And if membership in an evangelical church becomes an issue, abortion can't be far behind. I'm beginning to think Miers is a stealth candidate in more ways than one.
I supported Al Gore back in the old days, so did Zell Miller.
I don't know who I get more disgusted with, the knee jerk left or the reflexive right.
On one hand Miers will be attacked for being an envangelical and on the other for not being conservative enough.
It is like listening to Glenn Reynolds complain about pork while he talks up funding for embryonic stem cell research.
It ain't all about us. It is about the Constitution.
Yes, this might be rope a dope, it might be a decoy or....it just might be that Bush is impressed with her skills as a lawyer and her belief in the court's role as interpreter and not creator of the law.
It seems to me I remember a lot of the same kind of whining and crying from the right and left when Roberts was nominated.
The Supreme Court is no place for an idealogue.
Ok, having had time to think it over, I've come to my own conclusions. This was a dreadful pick.
I don't have any Republican Senators, but I have donated in the past to Republicans in other states. I'll be in touch with them and let them know that I expect them to oppose this nomination.
flenser:
Fine, I am sure Shumer will appreciate the assistance.
The US is a big country, it has almost 300 million people in it. Not all of them think the same, but all of them are bound by rulings of the Supreme Court and all of them deserve to represented.
I really appreciate how the Republicans liked it when people like me voted for their guys.
People who used to vote for and give support to Democrats. People who do not always agree with all the nuances of conservative thought..but when someone gets nominated for the court who [gasp] can not prove she has perfect conservative credentials, well to hell with her.
I know this is a radical thought, but how about giving her a chance?
I think a lot of people were geared up for a fight and ready to rumble. All that excess adrenaline has to express itself someway.
As to Miers' qualifications, I think it clear that she is no Roberts. On the other hand, everyone on the right is ready to dismiss her without, IMHO, knowing anything about her. In particular, I think folks like Reynolds are overly biased towards academic and scholarly credentials. So I am going to hold my fire until more information comes out.
Terry,
How do we know that she is not an ideologue?
I agree with Vnjagvet concerning putting an experienced litigator on the court. I'm happier with a litigator than I would be with most law profs. I don't care, particularly, what clients she worked for in business law or what side she was arguing. Litigators are hired for their skills in advocacy and most of their work is not susceptible to a 'good' or 'bad' label.
I find the choice very puzzling from a political perspective because loss of a majority in either house will make it much more difficult for the President to further his agenda. It may be that his political advisors have determined that such a loss has such a low probability that he need not be concerned but even if that is so I cannot judge this as a "best possible" pick. Not because Ms. Miers is unacceptable from a conservative viewpoint but because there is nothing clearly superior concerning her background or previous work.
Rick,
How do you know anybody who gets picked isn't an ideologue? For that matter, how do you really know anything at all in advance about what they will do?
The truth is, you don't.
It reminds me of a remark by Wittgenstein. If you find a man painting "1"'s on a sidewalk, and if you count and find that he has written one thousand "1"'s, can you predict what he will paint next? Of course you can't.
The truth is that you pick up a lot about a person through face to face contact on a daily basis that is meaningful and important, even if you can't actually express in English what it is you have learned. That's why business continues to rely on air travel in this precarious age: there just isn't any substitute for face-to-face. The bandwidth of face-to-face far exceeds anything available otherwise. So it's no wonder that all presidents tend to pick people with whom they are already familiar.
I don't see Bush as an ideologue. Nor was Clinton for that matter, but that's an aside. Bush is pretty much what he has shown us he is, a competent, principled, professional manager. He probably wants supreme court people who are familiar, competent, and reasonable. Why is that so wrong?
Rick:
She is the president's pick and he knows her.
We did not know Roberts either.
And you are right, we don't know for sure if she is an ideologue. Nor do we know what her favorite song is, or her favorite movie or her favorit color.
And the fact that people who are upset are mostly upset because of the politics of it all tells you something.
This is the Supreme Court. It is not supposed to be about politics.
Otherwise it will be given that whoever controls the Senate controls the court.
And that is not good.
The court is supposed to be independent.
You either believe that the law in the US is made by the people through their representatives, or you believe that it is made by the courts.
There is no "moderate" middle ground between those positions, any more than you can claim to be against both the US and the Islamofacists.
We can either appoint justices who make it clear that their role is to apply the law as written, or justices who see their role as creating the law as neccessary. The idea that there is some hypothetical "moderate" position which eschews the "ideological" extremes of "left" and "right" does not seem to have any basis in fact.
But if anyone would care to discuss the issue, I'm game.
You either believe that the law in the US is made by the people through their representatives, or you believe that it is made by the courts.
Is there room for the Constitution in there somewhere? I don't see it. And I resent being told that I must belong to one of these two categories. And how does this apply to Miers? Do you even know? Seems to me that much law is just nuts and bolts decisions. As it should be. A state of permanent revolution strikes me as undesireable.
As I recall, the Constitution was and is made by the people, through their representatives.
At least, that is the way it is supposed to work. Isn't it?
As I recall, the Constitution was and is made by the people, through their representatives.
And it changes every legislative session? I don't think so. It is hard to amend the Constitution, that is why it works. It is more a binding contract than a product of popular fashion.
Geesh. I didn't say I wanted an ideologue, I said there is nothing in her CV that elevates her to the level of clearly superior. Now, it may become apparent through questioning or through the reasoning exposed when she writes opinions that she is, indeed, clearly superior. It just isn't apparent right now.
"It is clear to me that there have been, and likely will be, laws written that violate the constitution."
The Constitution itself is the law. It is not some otherworldly construct that stands outside the law.
What was needed, and what this nomination offered an opportunity for, was a frank discussion of exactly these issues. Instead it was punted.
Sooner or later, and sooner is a lot better than later, the people in this country are going to have to figure out what kind of system they wish to live under. Actually, I think they have already figured that out. They just need some way to get it applied in practice.
"And it changes every legislative session?"
No, it changes every SC session.
"It is hard to amend the Constitution, that is why it works. It is more a binding contract than a product of popular fashion."
This is supposed to be true, but it is not true at present. The Constitution is trivial to amend - simply get five SC justices to agree on a particular position.
Of course, the Constitution, as written, was in fact a reflection of "popular fashion", if you want to use that term.
"It seems to me that the Constitution is a framework upon which our laws are built and within which they must function."
It's not. The Constitution is a collection of laws, written by Americans. Is is in some ways supposed to be a different type of law, one which is more directly in the control of the people, rather than less.
That is why Constitutional amendment is theoretically only possible with the consent of a super-majority of the people themselves.
In practice, the end-run around this restriction is to appoint people who will read into the Constitution whatever is desired.
"I don't quite understand why each SCOTUS nomination is now some giant national catfight but I also don't see how this nomination "punts" anything?"
If you don't understand why each nomination is now a national catfight, does that not suggest that those "frank discussions" are urgently needed? You are a well informed, intellgent, well-read citizen of this country. If you are in the dark as to why these court nominations are a big deal, does that not show clearly why that "frank discussion" is so urgently needed?
Is is in some ways supposed to be a different type of law, one which is more directly in the control of the people, rather than less.
I vote for less. The founders were rightly suspicious of pure democracy, IMHO.
Now I agree about judges making law out of whole cloth, but I fail to see why you immediately think Miers will do this. Sounds like you have some sort of litmus test in mind. Anyway, I will wait and see. If she shows a liking for international law, such as the ICC, then I will likely turn against her. But it will take something on that scale. Nor do I think she lacks a paper trail, it just won't be found in the usual places. She seems to have been more political and involved in day to day law than most recent nominees. I expect more information will be forthcoming.
chuck
I'm mystifed as to what "litmus test" comments you seem to think I have made. Feel free to explain, please.
As a matter of fact I have seen reports that she did recommend the establishment of an International Criminal Court. You think I'm just objecting to her because of ....?
"The founders were rightly suspicious of pure democracy, IMHO."
I guess this is where that frank discussion is needed. Because the only mechanism the founders provided for altering the constitution was a "purely democratic" one.
Which seems like an odd thing for them to do if they were so fearful of democracy.
As a matter of fact I have seen reports that she did recommend the establishment of an International Criminal Court.
Which is why I mentioned it. But it is not clear that she was actually in favor, she merely submitted a list of items that the ABA might consider. Link. Sound to me that she was merely filling her role as an official, not setting the agenda.
As I say, I am reserving judgement. But the reaction in the Republican blogosphere looks all out of proportion at this point.
Chuck, I cannot see why you say the reaction is all out of proportion.
Bush ran in two presidential elections on the basis that his SC picks would be in the mold of Thomas and Scalia.
It certainly appears that that is not what he has delivered.
He could easily have nominated someone else, who would have been much more in that mold. For whatever reason, he did not do so.
How is this any different to his fathers pledge that he would never raise taxes? When you break a pledge which was central to your election, people tend to notice it.
flenser,
We don't *have* a pure democracy. Never have had. We have a republic, which is a totally different animal. The founders had several reasons to avoid a pure democracy, not least of which was that it is completely unwieldy when the enfranchised population reaches several tens of thousands. I have seen this in town meetings in Massachusetts. The best reason, however, was that historical experience showed that pure democracy was short in duration and often led to tyranny and injustice. Thus, checks and balances. Thus a House of Representatives with two year terms balanced by the (formerly) undemocratic Senate with six year terms. Thus a separate executive. So I think we got something better.
Have I ever mentioned that I think the 17'th amendment should be repealed?
Bush ran in two presidential elections on the basis that his SC picks would be in the mold of Thomas and Scalia.
And you are all so sure Miers isn't? No Scalia, for sure, but I don't think Thomas was better qualified.
Bush ran in two presidential elections on the basis that his SC picks would be in the mold of Thomas and Scalia.
It certainly appears that that is not what he has delivered.
On what basis? According to Dana Milbank, Roberts sounded like a strict constructionist in his first day of arguments.
"Having "frank discussions" of the "laws we live under" each time one of nine SC justices is nominated seems, well, unworkable."
Well then, lets not do that. Which I did not suggest in any case.
It does seem like it might be a worthwhile exercise if there was some discussion of what the proper role of the courts is, for example, since it is blindingly obvious that people have lots of different views on that topic. The proper role of what is arguably the most influnetial branch of governemnt is, I like to think, a worthy topic of debate in what is still supposedly a government by, for, and of the people.
That hardly requires a discussion for each justice nominated. It does require at least one though.
Or, we can just say, fuck it. Let those judges and senators figure it out. They are a lot smarter than we are anyway. It's up to them to create the laws - we just do what they tell us.
How would the people be better served by state legislative appointments of senators?
Well, truth to tell, I use it as a conversation starter. But my argument goes that states have lost representation in the Federal Government. Thus the sorry spectacle of governors having their yearly meetings and yapping for attention. It is like a whole level of government cut off at the knees. Having the Senators appointed by the state legislatures would make them far more attentive to state concerns per se.
I think the political ramifications have been very carefully weighed by some pretty sharp folks in the White House. No one has ever said, e.g. Karl Rove is a fool or a closet liberal.
Bush has shown in the past that he listens to many sides, but always goes his own way. That is one thing that simply drives his opponents wild.
He is no ideologue, and never has been. But he is religious. He doesn't hide it, but doesn't flaunt it as his immediate predecessor did. He also lives it as his immediate predecessor did not. That drives most all secularists, humanists and some scientists and scholars wild.
He is pragmatic. He is ambitious. He is mindful of his legacy. He is loyal to his friends. He does what he says he is going to do.
He listens to and respects his wife. She does not make decisions for him, but he trusts her reading of people close to them.
These character traits persuade me he will not knowingly populate the Supreme Court with a weak person who is malleable to the fashions of the day, and who does not have a firm grasp of a reasonably coherent conservative judicial philosophy.
I personally do not want another ideologue on the court. We have at least four. Ginsburg and Breyer on the left and Thomas and Scalia on the right.
What I want is the folks in the middle to be smart, pragmatic, and possessed of an internal sense of the real meaning of the Constitution, its history and its impact on how this nation is governed to meet the goals the Constitution and its antecedent the Declaration of Independence anticipated. If Harriet Miers is that type of person, I will be satisfied.
chuck
Since i have nowhere argued for a pure democracy, I don't see what you are responding to.
The point I made, which still stands, was that the Constitution was not handed down on stone tablets from a cloud. It was written by the elected representatives of the American people. In a democratic fashion, in fact.
Those same founders provided a mechanism for changing the constitution. Again, that mechanism involves the people, acting in a democratic fashion. Rather notably, they did not chose to give that power to some council of elders, either in the form of the Senate or in the form of Supreme Court justices.
The first three words of the constitution are "We the people..". The Bill of Rights is peppered with references to the people. The notion that the founders were deeply suspicious of the people just does not hold up to historical examination. They were far more concerned that the government itself would slip free of its leash.
Charlie
Dana Milbank? The WaPo reporter?
Lastly - am I sure Miers is not a Thomas? No, I'm not 100% sure. You can ask the same question and get the same answer for any nominee. But the probability is that she is, at best, another O'Connor.
The proper question is, why are we guessing. Bush could have selected somebody more like Roberts, meaning a Luttig or Alito.
vnjagvet
What is your definition of an "ideologue", specifically as it applies to SC justices?
What is your definition of a "moderate"? What was the "moderate" position on Kelo, to pick just one example, and by what reasoning is that position arrived at?
What makes Bryer an ideologue? What makes Thomas one?
The notion that the founders were deeply suspicious of the people just does not hold up to historical examination.
Ah, but they were deeply suspicious of human nature, nor did they assume that the people en masse were somehow exempt. It it one of the reasons I hold them in far higher esteem than I do the various utopian designers whose creations failed in the most predictable fashion. But as an example of their attention to the natural inclination to corruption, we have:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
But I think that my impression of a suspicion of unchecked popular democracy comes more from the Federalist Papers than from the Constitution itself. The Federalist Papers make the argument as to *why* the Constitution is what it is.
I hadn't seen Beldar's views until a few minutes ago. I am glad I peeked. We normally have had similar views on these matters in the past. We still do.
Flenser:
To me an ideologue is someone who tends to give the benefit of the doubt to the side they generally favor in society.
The ideologue from the left generally favors the "underdog" or the "oppressed". The ideologue from the right generally favors the "establishment" or the "government".
Dick Durbin's questioning of Chief Justice Roberts regarding his representation of an HMO and asserting a position which might have resulted in a large number of people lacking medical coverage were his position to prevail. Durbin implied he should have turned the case down beause it would have hurt the little guy. Durbin took the leftist ideological position on that issue. Roberts took the non-ideological position that every party deserves excellent legal representation.
I hope that helps.
flenser:
I listened to the lady this morning when she accepted the nomintion.
She made a point of saying she would uphold the laws set forth by the founding fathers in the Constitution. Now maybe that does not mean anything to the right, but I am willing to take her at her word.
I think the convservative blogosphere has over reacted. Just like they did when Roberts was nominated, only more extreme.
There may well be more nominations for Bush to make but I find this notion on the right that he "owes" them a particular nominee to be very disquieting.
I think Bush is mindful of his legacy and many times he has shown political courage when it costs him. The willingness of the right to jump on this without good cause makes me wonder how much respect they have for anyone who disagrees with them.
terrye
I have a great deal of respect for anyone who disagrees with me, who is able to present solid arguments for their disagreement.
Bush does in fact "owe" the people who elected him some things. He has an obligation to attempt to do the things he said he would do if elected.
If he had pulled completely out of Iraq and Afghanistan in Janurary 2005, would you still say that he had no obligation to follow through on his promises to his supporters?
He, and the Republican majority in the Senate, were elected on the basis that they would reform our screwed up judicial system. They have taken some good steps in that direction. But at the biggest step of all, the nomination of new Supreme Court justices, there appears to have been a loss of nerve. Understandably, people are upset.
If you have a basis for disagreement, lay it out and we can discuss it. But to suggest that people from across the spectrum, from libertarians to social conservatives to centerists, are all some kind of "right wing ideologues", is name calling rather than disagreement.
None of which is to deny that there are some very ill-mannered people at ConfirmThem and other sites. But being jerks does not make them wrong all the time.
vnjagvet
That seems to be avoiding the question. Can you offer any evidence that the positions taken by Scalia and Thomas really "favor the establishment", moreso than those taken by Bryer and Ginsberg? I don't think you can. I think I could make a good case that the reverse is true.
In any case, that sounds like outcome based jurisprudence. I don't want a judge who seeks to favor either the individual or the establishment. I want ones who make rulings based on the written law. Thats all. Let sombody else write the law.
You must know of and have opinions on the question of how the constitution and other laws should be read - the "textualsts", "constructionists", and so on. Whats your take on this?
Flenser:
I voted for him too.
But that does not matter does it?
I tell you what, lets change the Constitution.
We will take the right to nominate the Supreme Court Justice away from the president and will give it to a special group of elite bloggers.
That way we can be sure we satisfy the spectrum.
Bush was elected to be the president, he was not elected to pick certain judges from a list compiled by certain conservatives who are bound and determined to attack anyone not on the list.
It seems to me that she is a qualified conservative. Now let the process begin.
terrye
The difference here is that I am not telling you that you are not entitled to your opinion. You certainly seem to be telling all those crazy "right-wingers" that they are not entitled to theirs. For reasons which you cannot spell out.
I don't see where you get that power.
The process will of course begin. And Bush and the Republican party have of course inflicted a good deal of damage on themselves in the public mind, for no very clear reason. I don't see how anyone who supports the President can consider that a good thing.
flenser:
Oh for heavens sake.
I am not telling anyone they don't have a right to their opinion.
I am just saying that I find this piling on to be hysterical.
And as for my comments about right wingers, I guess it comes from all the conservatives I have seen threatening to abandon Bush for not picking the "right" candidate.
Sorry if that offends you but I do.
flenser, if you want to know the truth I think the reaction of a lot of people has inflected some damage on the people doing the ranting..
terrye, I guess ranting is in the eye of the beholder, like so many other things in life. One persons "disagreement" is anothers "ranting". I'm sure some people might use one or the other of those words to describe you.
I'm not sure how anyone can abandon Bush, since he will not be up for election again. I'm not going to support someone I consider a poor candidate. If that makes me a traitor to the cause, then I guess I can deal with it.
flenser:
I'm not going to support someone I consider a poor candidate.
Neither will I. I just don't see how folks can be so sure so early that Miers *is* a poor candidate. I am going to wait before passing judgement.
flenser:
I just got an email today from a lady who had never voted for a Republican before Bush.
She told me that after seeing the hysterical way some people in the self anointed base were behaving she was wondering whether she would vote for a Republican again.
That is what I mean by ranting.
I prefer to wait until I know more before I condemn Bush or Miers. I am saddened by the fact so many other people could not do the same.
Who knows in a few days it might look different. I remember a lot of people reacting badly to Roberts too.
chuck
I don't know. I'm sure you have read all the stuff I have and if you take something different away from it, so be it.
CQ has a post up which sums up my feelings, My Grudging Support, Such As It Is.
I'm done with the topic for a day or two anyway.
terrye
I really don't know what you mean. The behavior I have seen by Republicans on this was vastly better than you see from Democrats on anything. On anything.
Send your friend to DU or atrios or some of the left wing sites if she thinks what she saw today was hysterical ranting. She needs to get out more.
Flenser:
Re Scalia's outcome determinative jurisprudence:
All of his opinions in the area of ERISA preemption have favored the managed care industry. Some of his reading of the common law background, legislative intent, statutory interpretation and legislative history of ERISA is simply wrong. That is not strict constructionism in my book.
While I like and respect him, Nino is not always right.
I am not as familiar with Thomas' juridprudence, but I am reasonably sure I could come up with a similar example.
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