Miers This and Miers That

Thursday, October 06, 2005
I'll begin by admitting that I am not a Supreme Court nominee or confirmation process aficionado. The Miers nomination has piqued my interest far beyond what it has ever been.

As I wander about the blogoshpere listening to the catfight over the Miers nomination I hear several recurring themes.

One is, for lack of any better term leaping to mind, "betrayal". Apparently some folks who consider themselves "conservative" view this nomination as a betrayal of all they hold dearest. Those who feel this way are threatening to drop out. They'll never again lend their support or vote to any candidate anywhere on the right side of the spectrum. Since they can't have a President of Supreme Court Justice who fits their definition of a "conservative" the way a custom made glove would fit their hand, they are taking their ball and going home, never to darken the conservative movement's doorway again.

My mom, in my younger days, was fond of reminding me not to cut off my nose to spite my face. For those who believe the best way to move our nation in the proper direction is to leave the field to those who would gladly move in the opposite direction I can only say, good-riddance, you're too high-maintenance to suffer your lack of commitment for whatever gain you bring to the "conservative movement".

Another, somewhat stronger, theme is "we coulda had a contendah!" I'm not a big user of sports analogies but sometimes they are apropos. Those spouting this theme strike me as the sorts of football fans who would want their favorite team running nothing but deep strike pass routes. Go for the touchdown, always, all the time. Five yards on first down is not good enough. Moving the chains is not good enough. Holding a lead is not good enough. They want the jugular, the thrill of victory or the agony of defeat, the smell of napalm in the morning or the quiet repose of the cemetary. No half measures for them.

These folks call to mind a coach from younger days who was fond of telling us that none of us could hit a grand slam unless three others of us managed to get on base first. And there is no such thing as a five-run homer.

Is the "conservative movement", whatever that is, really so weak, so socially tenuous, that it cannot weather some screaming at one another? Are teammates really going to quit the team if the next play isn't the one they'd call?

And speaking of calling plays, why do so many view this nomination as the key opportunity within the two-minute drill? It isn't that at all. It's a play being called during timeout while the wide-recievers are sucking on oxygen bottles. And we aren't in the final two minutes of the game - we're smack in the middle of a game with no clock that expires. It's a running play designed to get six yards, maybe a first down. If you're gonna quit over it, good-bye. If what you want is more points on the board then calm down and exercise some patience.


chuck said...

I am coming to the conclusion that Miers will turn out to be pretty moderate on a lot of topics. Apparently she did much to bring woman into the law in Texas. I think that she also has good people management skills and she seems to rise relentlessly wherever she is. An interesting person, I think, and not one who is going to toe a conventional line. Perhaps the "base" are right to be scared, then again, I don't know that she will be a bad choice from my point of view. Possible negatives? Her writing and speaking skills. I am going to wait and see how she does in the hearings.

David Thomson said...

Employing the term “betrayal” regarding the Harriet Miers nomination is absurd. It is a corruption of language. Does anyone really believe that President Bush would deliberately betray his own values? Too many conservatives are purists. They enjoy a good fight---even when it is easily avoidable. I personally do not have any time for such immature behavior. Is it possible that the President is making an error in judgment? Of course, but that is not a moral failing.

I am increasingly being persuaded that Miers is a very good choice. My gut instinct is that she will be a reliable vote for the originalist position. As I said before, we will ultimately find out sometime early in 2006. Miers will be easily approved by the U.S. Senate. She will get a minimum of eighty votes. There will also be no dissenters within the Republican ranks.

Knucklehead said...

I'm glad I'm not the only one coming to the (admittedly early) conclusion that she is an interesting and viable candidate. I suggest that Rove put somebody on the job to scribble down every criticism of her resume that the Dems toss out - it'll be fun to replay them when St. Hillary runs for POTUS. Compare the two resumes, especially the "fiercely brilliant woman lawyer" parts, and I think Harriet wins over Hillary.

Anybody remember when Mario Cuomo was being touted as a potential nominee if Clinton were to get another nomination opportunity? Mario hasn't sat a bench since he stopped playing minor league ball? (I never knew he'd been whacked in the noggin' - that 'splains a few things).

The point, of course, is that the more one looks into SCOTUS nominations and the names bandied about, the more obvious it becomes that prior experience as a judge is rarely seen as particularly essential.

And as for being a "con-law expert", notfuhnuttin' but aren't a fair number of those engaged in some of the more egregious torturing of the constitution?

Chuck, I'm not overly concerned with her writing skills. I presume the clerks do most of the research and draft work. My experience with "executives" suggests that if they ever had particularly good writing skills they've generally atrophied. Underlings do that bit of heavy lifting, the big boys and girls edit, ensure the big points are hit in the proper order, and publish. I could, of course, be wrong about the role clerks play as I don't actually know a darned thing about them other than that it is apparenlty a highly sought and valued position for legal up and comers.

DT - I've also reached the point of, ummm... impatience.

flenser said...

I don't believe that Bush will betray his own values. But I don't believe that Bush is a conservative of any sort. So that does not get us very far.

As chuck says, Miers will likely be a moderate, much like Kennedy I expect.

The conservative base, a term which seems to puzzle Knucklehead, has been supporting Bush because they see the courts as the biggest domestic issue. For some of them, it is the biggest issue period.

The blame for this debacle does not rest entirely with Bush. It appears that the Seven Drarves decided that any mainstream conservative was "out of the mainstream" as far as they were concerned.

Conservatives have supported Bush with great loyaity, some might say blind loyality, for the past five years. They have done so while he has bent over backwards to win points with the Ted Kennedys of the world, and while he has thrashed everything conservatives stand for, from smaller government to bigger deficts to open borders. They did all this in the expectation that eventually they would get thrown a bone in the form of a couple of SC picks which they would like.

Neither Roberts nor Miers is what the base was looking for.

It may yet turn turn out that Roberts, and Miers if she is confirmed, will prove to be the kind of judges which the membership of the Republican were seeking. I hope very much that they are. Because if they are not, the party is is deep, deep trouble in 2006 and 2008.

Idiotic comments encouraging the base to leave the party are just that, idiotic. Kunckleheaded, even. Some people here really need to grasp the concept of coalition politics. It does not matter if you yourself are not a gun nut/ fiscal conservative/ social conservative/ pro-Israel or whatever. In order to get what you want you have to be willing to make sure that the other members of the coalition get what they want and are kept happy also. We all win, or lose, together.

The people who are unhappy with Roe, with Kelo, with Romer, with the expansive Commerce clause, are not some handful of nuts and extremists who can be safely ignored. They are the backbone of the party.

Please try to understand that.

flenser said...


"My gut instinct is that she will be a reliable vote for the originalist position."

My gut instinct is that she will be a vote for the kinds of policies which the Bush administration has favored.

That is, pro affirmative action, pro CFR, pro big government in general.

David Thomson said...

“That is, pro affirmative action, pro CFR, pro big government in general.”

You do not seem to understand the concept of originalism. It really does not matter what are the views of a particular jurist. This individual is obligated not to legislate from the bench! In other words, someone who is personally “pro-choice” on abortion (like the late Raoul Berger) still believes that the U.S. Supreme court overstepped its bounds in Roe vs. Wade.

There is also no such thing as an absolutely safe pick. They are always something of a pig in a poke. We can only hope for the best.

chuck said...

Here is an endorsement I picked up at Beldar:

"I've had her in court. [She's] very good, very cool, very deliberate, very poised, never gets rattled, very centered and has a very matter-of-fact way of communicating to a jury that's very effective," says 192nd District Judge Merrill L. Hartman.

Her appearance before the Judiciary Committee might change some minds. Especially if someone like Kennedy goes after her.

vnjagvet said...

Good discussion here. After I saw Roberts perform in the Senate Judiciary Committee hearing, I went on record as saying the President hit a home run appointing him as Chief Justice.

There were few questions about his conservative philosophy, although it was clear that his expression of it was not of the "in your face" variety. It was good that it wasn't. Otherwise, he might not have been confirmed.

His intellect was on display for all to see, and it was uniformly judged by all ends of the political spectrum as spectacular. That was consistent with his stellar reputation since his college days.

In addition, his temperament and demeanor were also clearly those of a fair minded, polite, gentleman. Just the type that can be effective leading a collegial court of equals.

Ms. Miers' appearance before the committee is even more important to me than Roberts' was. Her reputation is clearly not as glittering as was Roberts, and the depth of her conservative convictions have not been spread upon the record.

These things will be tested before the Committee. It is apparent that neither side will be necessarily on her side. Her demeanor, skill and intellect will be tested before the committee and before the American people.

The blogosphere's reaction will be, for the first time, of major import.

What could be more fun than that?

MeaninglessHotAir said...

The attitude being exhibited by the "conservatives" having fits over Mier reminds me oddly of the attitude being exhibited by the "left" over the Islamofascists. In both cases, there's a believe that they can go home and the problem will go away. Because Bush isn't sufficiently pure, in either his domestic policy on the one hand or his dealings in Afghanistan and Iraq on the other, we must reject him entire and then everything will be wonderful.

Flenser, you may believe that you have a choice between a small-government close-the-borders type of guy and Bush. You don't. Your choice is between a state-worshiper like Hillary who wants to nationalize the entire health industry and many other industries so that government runs at least 50% of everything, like Sweden, and Bush. Bush wouldn't have expanded the Medicare benefits if people hadn't demanded it. People in this country want their benefits. Somebody (the mayor?) of San Francisco yesterday said that wireless access is a fundamental human right (!). Allow me to translate: government will now be in the business of providing wireless access to all and sundry, at any cost, to be paid for by "the wealthy". They're evil you know.

If we cut and run in Iraq, the repercussions will be more bombings in OKC by twisted young Muslims. If we cut and run from the Republican party, the repercussions will be a far bigger government than you can even imagine at this time.

flenser said...


I understand the concept of originalism perfectly. I doubt that Miers is one, which is a different point entirely.


Given that all you say about Robers is true, it seems more and more peculiar that a similar pick was not made this time. There is a deep bench, to use the sports metaphor, of Roberts-like judges. McConnell, Luttig and Alito come quickly to mind. McConnell is even an evangelical, if that is really important.

There is an abortion case on the SC list for the end of November. So by next spring we will have a better idea of what kinds of judges Miers and Roberts are.


If the choice offered is between liberalism under the Republicans or liberalism under the Democrats, most people are going to say we should go with the Democrats. They are better at it.

I take it that you are a pro-war liberal, like most people from Rogers place. I think that all the different elements of the Republican coaliton need to be kept happy. The pro-war liberals are getting what they want, and that is well and good. But there is much more to the party than that. Telling other people that they should give time, money and effort to a party on the basis that it is bad, but not as bad as the alternative, is not going to fly. You have to give people something, anything, so that they can justify their support.

Bush has been infuriating fiscal conservatives for some time. Rather than take steps to rectify this, the WH has seemingly decided to pick a fight with other parts of the base.

I've been pointing out for a long time, as long as I was on Rogers, that this WH is politically inept, and that this ineptness has real life policy consequences. This is a case in point. Either deliberately or carelessly, they have started a fight within their own party. Either way, they look bad.

Knucklehead said...


I am puzzled by the whole notion of a "conservative base". As far as I can tell anyone who would self-label as a "conservative" and a member of some particular bloc believes themselves part of the "conservative base".

But, politically speaking, "conservative" is a badly ill-defined term and the blocs are hardly universal in their views.

As an outlier "conservative" it is pretty clear to me that there is more than one group which views itself as the "conservative base" and, along with the likes of Terrye, I'm a bit peeved with the whole lot at the moment.

flenser said...


"I am puzzled by the whole notion of a "conservative base"."

This seems to say that you do not understand the concept of the "conservative base", and perhaps in general, of the "base" for any politcal party.

"As As an outlier "conservative" .. I'm a bit peeved with the whole lot at the moment."

This seems to suggest that you do understand the concept of the conservative base. You simply don't like it.

I'm not sure which of the above is true, so I'm not sure which to address. Lets take the first one, since it is easier and shorter. The base of a party is made up of those politically engaged folks who care very much about their issue(s) and are willing to spend time and money in trying to get what they see as the correct policy decisions implemented.

Typically the "base" is not monolithic. For the GOP it contains several single issue groups (guns, abortion, lower taxes, etc) as well as those who have incorporated many issues into a more general governing philsophy.

The base is important because it makes up those people who are willing to spend some of their own vacation days walking door to door in the rain distributing fliers, or working the phone banks. It provides the foot soldiers for any party. When the morale of your foot soldiers starts to fall, electorial defeat is not far behind. They have to be kept happy and motivated. Or angry at the other side and motivated. But empathically NOT angry at their own party.

Success in the war on terror depends on success in the political war here in America. They are not two completely independent things. They are two fronts in the same war.

The quality of the generalship on the home front is in desperate need of improvement. Yelling at the demoralized troops to shut up and fight harder will lead to a revolt or a collapse, not a victory.

vnjagvet said...

Otto von Bismarck said, "Politics is the art of the possible".

John Kenneth Galbraith took it another step whebn he said, "Politics is not the art of the possible. It consists in choosing between the disastrous and the unpalatable".

I never much cared for Galbraith who is somewhat of a pro-european elitist who has socialistic tendencies. But he has a point which is instructive to this thread.

Bush is nothing if not a politician. He would not be President were he not. He makes decisions. Those decisions have consequences. All decisions have good and bad consequences in the real world. Bush is no Adlai Stephenson type. He is not a theoretician (sp?).

Those kind of people blog and write for National Review, Slate, The Nation, and opinion pieces at the NYT an WAPO. They do not win elections. They do not have coat tails. Bush won elections and had coat tails. So did Ronald Reagan, but his coat tails were not as big.

Bush has an Harvard MBA. He earned it. He governs like he earned an Harvard MBA. True believing pundits from both ends of the spectrum hate it.

But I respect it.

Please do not forget that Bush now has appointed a cadre of Federal District and Circuit Court Judges who are have great conservative and intellectual credentials. McConnell, Luttig, Brown, Pryor, Roberts (before his elevation) are but a few.

These judges and their colleagues appointed by Clinton, Bush 41, Reagan, Carter, Ford and Nixon do 99.99 percent of the work of the Federal Courts. The Bush appointees will change how that system works.

The Supreme Court is important, but nominees must be confirmed. Watch how it is done.

Knucklehead said...

The base of a party is made up of those politically engaged folks who care very much about their issue(s) and are willing to spend time and money in trying to get what they see as the correct policy decisions implemented.

OK, now, would that be pro-life+ sensible gun control conservatives, or pro-choice+getcher hands off my armory conservatives, or small-government conservatives, or "I don't care what it costs, just get the heck out there and kick the crap out of the people who are trying to kill us" conservatives, or lock down the borders and pull up the sidewalks conservatives, or free and open trade and borders conservatives, or get rid of the stupid war on drugs conservatives, or lock up all the junkies conservatives...

chuck said...

Those kind of people blog and write for National Review, Slate, The Nation, and opinion pieces at the NYT an WAPO.

Heh. You make me wonder if Miers problem is that her real accomplishments in the real world render her overqualified.

Rick Ballard said...


Hear, hear.

The art of the possible presented to us by the Seven Spineless Dwarves and their Spectoral sidekick. All firm believers in the magical majority to be found in the undifferentiated muddle who vacillate between not voting at all and voting their stomachs or their wallets.

It is very idle speculation to suppose that W would be unaware of the friction that would be generated by the selection of Ms. Mier. Would the friction be greater or lesser among those who pontificate if a Luttig or McDonnell were appointed - and then not confirmed because of the jellyfish masquerading as Senators?

As the hearings progress the friction among Republicans is very likely to be overshadowed by the friction between the hard core left and the DLC. The DLC really can't afford to fight this appointment and the lefties can't afford not to.

Knucklehead said...

Thank you, DJ Drummond.

MeaninglessHotAir said...


"choosing between the disastrous and the unpalatable". Works for me. Excellent points.


As Knucklehead points out with far greater wit than I could ever muster, the words "conservative" and "liberal" are just too dang confused to make any sense these days. Why are you so eager to label me? I'm pro-abortion rights, yes. But I also agree totally with thibaud that Roe v. Wade is an abortion of a decision. In a just world, the states would vote on this issue, like they always did in the olden days. So what does that make me, "liberal" or "conservative"? The question is ridiculous.

Vnjagvet is spot on. Bush's appointments have done more for the "conservative base" in the courts than any of those other presidents could ever manage, and the reason is that he is a smart politician who realized that people wanted a medicare drug benefit for seniors, wanted a pork highway bill, wanted his apology for hurricane Katrina, and he bent in the wind.

"Success in the war on terror depends on success in the political war here in America." I agree with this completely. But what, praytell, does the War on Islamofascism have to do with whether women have the right to an abortion? With the right to bear arms? Whether we should have capital punishment? Are you just like all those DUers who believe they should get their way on every single issue and if they have to lose the War on Islamofascism in order to get Amerikkka, it's worth it? You can't have your way on every issue. Pick your battles.

In the Miers battle, looks to me like Bush cleverly found a way to slip a social "conservative" past the Democrats. You would be cheering him if you had the courage of your convictions.

Knucklehead said...


Thanks for the help. I am struggling with what's behind this current catfight. Some of it, I fear, is some idea that if they can't win the battle then at least go down like honorable kamikazes.

There is apparently some ongoing speculation that the Senate Repbulican leadership clearly signaled Bush that they had no stomach for a knock-down, drag-out fight (see Mark Levin at NRO) and yet somehow the "base" wants Bush to perform some rain dance for them.

terrye said...

I have taken care of people who called themselves fiscal conservatives while at the same time they were bitching and moaning about their social security check not being large enough or the fact that they could not get their quadrapalegic son better and more benefits.

That is the problem with fiscal conservatives. It ain't welfare when it is you or your family.

As for Miers I was outraged by the mean spirited and obnoxious comments by many pundits and by socalled conservatives who were whining they had been betrayed because [shock] they did not expect the cafeteria lady and attacking anyone who dared say something outrageous like "Give her a chance".

No, they were just plain mean. As one guy on polipundit put it, bork the bitch.

That is real high class and no doubt when she does come before the Senate there will be all kinds of snooty east coasters making fun of her accent. You just know it. she will have to walk on water to please these people.

And then there is David Frum saying that even if Harriet Miers makes all the right decisions she will never be good enough. never.

And of course there is the wealthy and priviliged and white not to mention Ivy Leaguer Ann Coulter pointing out that this person was just not the right kind. You know the Ivy Leaguer kind who can duke it out with the big bad liberals.

It is nice for the trashy people to come and vote for Coulter's picks every other November, but let's keep them in their place.

She sounded like a Democrat talking about African Americans.

This is coming from a woman who probably does not even do her own laundry.

Guess what? That means that according to Frum and Coulter Ronald Reagan and Abraham Lincoln were not the right sort.

And then comes along the ever pompous and self important George Will ripping Bush for being unable to even pick a judge. sheesh.

The truth is Bush promised an originalist and he delivered.

The fact that a bunch of self anointed conservative leaders were out there pretending to be in a position of authority while they worked up the prolifers for Battle Royale did not help.

I have seen a side to many of these people I had not noticed before and so has America.

and it ain't pretty.

terrye said...

I just sent Brit Hume an email about this and told him just how I felt. I guess most of the emails he has been getting are from outraged conservatives who want to lynch Harriet Miers.

Bill Kristol has asked that she withdraw her nomination. Outrageous.

The neocon is not happy.

And just how much crap has Bush endured to stand by the neocons?

flenser said...


"In the Miers battle, looks to me like Bush cleverly found a way to slip a social "conservative" past the Democrats. You would be cheering him if you had the courage of your convictions."

The courage of my convictions? I don't have a clue what you are trying to say here. What do you imagine my convictions to be?

I spelled out my opinion on Miers very clearly. She may or may not be a good judge. She was a poor political pick. That seems unarguable at this point.

The people up in arms about her are the conservative base, not some bunch of "elite snobs". Go over to RedState and read the threads there if you think otherwise.

I initially laughed at Jamie when he worried that this place would become an echo chamber. Plainly, I was wrong. Most people here are urban liberals who support the War, but are indifferent at best to the conservative wing of the party. That is what leads to this bizarre tone-deafness on Miers.

"But what, praytell, does the War on Islamofascism have to do with whether women have the right to an abortion? With the right to bear arms? "

This may somehow have escaped your notice, but in large measure, the people who fall on one side of the questions you pose are those in favor of fighting the GWOT. The people who fall on the other side favor not fighting it. Those two sides are usually labelled "conservative" and liberal". The "liberal" states, including NY, went heavily against Bush. The "conservative" states were the ones who elected him.

There are some exceptions, true. You and most posters here and at Rogers are more "liberal", while there are some conservatives who are against the war.

But the block of people who are in favor of fighting this war are also a block which is heavily against abortion, against gay marriage, for gun rights, and so on. So like it or not, the war and these issues are linked. Because we need these people to fight it.

Winning the war involves defeating not just the Islamists. It requires defeating, politically, their supporters and enablers in this country. That is, it means defeating the Democratic party. Defeating the Democratic party, in turn, requies energising those on our own side. And doing that requires a little bit more than telling people "There is a war on." It requires assembling a majority coalition of people, some of whom consider the war important, but not to the exclusion of all else.

The domestic enemy is liberalism.
This point was made repeatedly at Rogers, by a great many people, so I'm at a loss as to why people act is if they are hearing it for the first time.