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Monday, October 03, 2005

The Miers nomination: a safe play from Dubya's standpoint who actually will bring needed "diversity" to the Court

Harriet Miers may be virtually unknown to you. But she isn't to Dubya — and that's the main point of her nomination.

With even a half-hour's worth of hindsight, I declare myself unsurprised that the President chose Ms. Miers. It's absolutely consistent with his appointment style for other positions going back to his days as governor of Texas: George W. Bush has consistently preferred those who are well known to him, of proven qualities and proven loyalty, over perhaps bolder or more popular choices with flashier résumés.

Those who think public opinion polls are crucially important to this and every other White House — I'm not among their number, as I think they're almost worthless and indeed pernicious and destructive of good governance because they put a premium on exactly the wrong things — will say that Dubya's "low numbers" caused him to deliberately refrain from picking one of the darlings of the Right. Far more intense opposition would have coalesced against a nominee like Fifth Circuit Judge Edith Jones, for example, even (and for essentially the same reasons) as such a nominee would have generated more applause from Dubya's "base." Many will view Ms. Miers as a "compromise choice" — an attempt to bunt for a single rather than to swing for the fences, a safe play dictated by circumstances.

I think Ms. Miers' nomination is, comparatively, a safe play, but I don't think it's the product of Dubya's standing in recent, or any, public opinion polls. I think it's mostly a product of two factors. The first factor — the one that became logically precedent to, albeit not more important than, the other key factor — was the unique-to-this-slot "need" to pick another woman to follow Sandra Day O'Connor. The first attribute used to narrow the field was thus whether a potential nominee had a Y chromosome, although being first didn't make an XX pair the most important criterion. No, the second and ultimately determinative factor can be completely summarized in three words: "No more Souters."

To you, me, the Senate, and the public, Harriet Miers may seem as much of a blank slate as David Souter was when Bush-41 nominated him. "Another 'stealth' candidate," many will say, "another blank slate about whom we know too little to make confident predictions!" That's already the official party line of the Dems, and it's something being muttered less loudly among puzzled Republicans as well.

But that is emphatically not the case from the perspective of George W. Bush. And the Constitution does, after all, give him the nomination power — not "the White House," not "the Republican Party," nor "conservatives generally," nor even "us'n who put him back into office." And he knows, and he's always known, that the blame for an appointee who turned out to become "another Souter" would likewise be placed on him. It's a responsibility and an opportunity whose benefits and risks he sought, but that he obviously takes very seriously indeed, because from Dubya's perspective, Harriet Miers was the one prospective female nominee about whom he personally felt that he could be most certain in predicting what sort of Justice she will become.

One of the points I made on the same day that John Roberts was originally nominated for this same seat was that his past long service to two Republican administrations — mostly in the role of private counselor rather than public advocate, aside from his actual Supreme Court arguments as Deputy Solicitor General — was absolutely crucial to his selection. The same is true of Harriet Miers, only moreso. When Dubya looks at her, he doesn't think "blank slate, might be a Souter." He thinks: "I know her, she's been my lawyer through thick and thin, and I know things about her judgment and character that nobody else knows about her, but that leave me entirely comfortable about how she'll turn out as a Justice."

As we read more and more of John Roberts' memoranda from his days in the White House counsel's office of the Reagan Administration, many conservatives became increasingly comfortable with his nomination based on the consistency of his approach as a private counselor on issues of huge public importance; in picking Judge Roberts, Dubya had the benefit of that paper trail (and his SG paper trail that we mostly still haven't seen), but he also had the second-hand benefit of first-hand appraisals from many trusted individuals who'd worked with him over his career. For Ms. Miers and Dubya, though, the appraisal is entirely first-hand, and he saw the paper trail as it was generated — in response to his own assignments — in the first place.

We're likely to see another stretch of bitching and moaning from the Democrats on the Judiciary Committee over how essential it is for the Administration to waive attorney-client, work product, and executive privileges and fork over every document that says at its top "To: George W. Bush, From: Harriet E. Miers." Expect the White House to hang very tough on this.

Conservative skeptics, I remind you that even though you haven't seen this stuff, Dubya has, so let your comfort level be in inverse proportion to the sounds of frustration and gnashing of teeth from the liberals. Sen. Brownback, your demand for guarantees as to how this nominee will vote on your key issues is like a fan in the stands insisting that the quarterback's play calling in the huddle be broadcast all over the stadium; whether you approve of the call or not, your team's odds go into the toilet when there's a microphone in the huddle.


About qualifications other than having Dubya's confidence: I heard an NPR reporter (not Nina Totenburg, but someone else) crack wise this morning about how the Dems would be looking at "Harriet Miers' qualifications, or more precisely, the lack thereof." That's more than simply ridiculous. That's elitist, condescending, and stupid.

I'm entirely unpersuaded that the Court needed another female Justice just to maintain its "diversity." But I'm actually quite pleased at other sorts of diversity that Harriet Miers will bring to the Court. For one thing, she's been a practicing lawyer in a high-level but real-world practice for most of her career. And her practice has been 1000 times more "nuts and bolts" than the extremely esoteric and rare appellate practice that Chief Justice Roberts had, for example.

I expect that some of the loudest critics of this nomination will be law professors and "public interest group" lawyers. [Edit: But see this very good post from UCLA Law Prof. Eugene Volokh, who I think has done a better job than his fellow VC bloggers so far in maintaining a historical perspective and thinking outside the snotty law professor/academic box. — Beldar] Well, I'm sorry, but we've already got plenty of representation from those segments of the bar on the Supreme Court's bench. We don't have anyone on the bench now, though, who's had to worry much about recruiting, administering, refereeing, and making payroll for a major law firm while still actually working for ordinary paying clients who have typically real-world legal problems.

Moreover, being not just a partner, but the co-managing partner responsible for running a law firm of 400+ lawyers requires a rare and nontrivial skill set. I can confirm to you from personal knowledge that her firm — formerly Dallas-based Locke Purnell Rain Harrell, now Locke Liddell & Sapp after much internal growth and a merger with a prestigious Houston-based firm — is indeed a major player among Texas megafirms. That background and those skills are every bit as valuable to the Supreme Court as, say, Justice Ginsburg's past service as general counsel for the ACLU. And a track record of having been the president of the Dallas Bar Association and the State Bar of Texas, and having been counsel for the Governor of Texas and the President of the United States, is altogether as impressive, and indeed to my mind considerably more impressive, than a few years' service on an intermediate Arizona appellate court — which is what Justice O'Connor was doing when she was nominated. What the hard Left will paint as "corporate toadyism" most of America recognizes as facilitating commerce and economic growth.

By objective standards, Harriet Miers has been among the few dozen most successful lawyers in private practice in the United States. Filter the Y-chromosome bearers out of that group and you're down to a couple dozen or less. Filter that group for significant public and governmental experience and we're down to a very small handful. And filter that small handful for lawyers in whom George W. Bush already has boundless personal confidence from first-hand experience, and your Venn diagram just has a one-member set left: Harriet Miers. Those are not inappropriate criteria, folks. From an overall viewpoint, using any reasonable criteria, she's qualified enough. But using those particular criteria, she's uniquely qualified.

Would I have picked her? Probably not. But she hasn't been my lawyer, and I'm not the President. If I were the President, and I wanted to make a safe play — a non-Souteresque woman — I might very well have picked someone like her, though. And so I will happily support this nomination, and I wish Ms. Miers good luck, fortitude, and grace in the confirmation process.

Posted by Beldar at 09:26 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to The Miers nomination: a safe play from Dubya's standpoint who actually will bring needed "diversity" to the Court and sent a trackback ping are listed here:

» Harriet Miers - New SCOTUS Nomiee from Macmind - Conservative Commentary and Common Sense

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» Harriet Miers nominated for Supreme Court from The Glittering Eye

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(1) Deborah made the following comment | Oct 3, 2005 9:39:15 AM | Permalink

All of what you say is probably true, but I'm disappointed. First, I believe it was time to nominate a seriously in-your-face conservative and let the nuclear fireworks begin. It appears the Republicans have, at least with this President, decided that "extreme right" is as dirty a word for them as it is for Democrats. It feels like a sell-out. Second, it smacks of cronyism. There are far too many positions in the federal government for a President to populate all of them with his friends, and it is reminiscent of "friends of Bill" and other corrupt Presidents. Third, on a decidedly petty note, she went to SMU Law. If we're going to have a Texas Supreme Court Justice, at least go with a UT Law graduate.

(2) Bostonian made the following comment | Oct 3, 2005 9:54:06 AM | Permalink

Beldar, I had the same reaction, that GWB nominated someone he knew very well, to avoid another David Souter.

Yet a lot of the Right is in Souterville hysteria.

Hello, guys, GWB *knows* this woman!

(3) RattlerGator made the following comment | Oct 3, 2005 10:05:40 AM | Permalink

Beldar, I'm comforted to see some common sense from you on this selection.

I guess it's my continuing education re conservative politics, but I am shocked at what I consider to be the illiterate response to this nomination.

A comparison to Souter, which I've seen quite a bit of? Souter was counsel to what Republican president?

Unbelievable. And remarkably elitist in a very disappointing kind of way.

(4) Chris malott made the following comment | Oct 3, 2005 10:45:56 AM | Permalink

My liberal friends often say that I have "drunk the Kool-Aid" when I speak of support for GW's foreign policy. I think the phrase applies aptly to your post, Beldar.

There is nothing positive to say about demoralizing your base. This could effect the conservative and evangelical turnout in the 2006 elections among other things. It didn't have to be this way. We shouldn't be guessing how this woman will judge. GW is screwing with the future of our culture.

(5) Mike made the following comment | Oct 3, 2005 10:51:49 AM | Permalink

Hi Beldar,

I am a fan of yours, but I still do not see this pick as a bold move. I did not see Roberts' nomination as a bold move either (will Bush even get another chance?). I am an independent (I always have been), but I am conservative. Why not take a chance on a bold move? We seem to be doing rather well with goading the Left into their current insanity. Why not do more of it? If Bork was younger, I would nominate him. He is a brilliant man. Speaking of younger, I heard some poster somewhere say that Miers did not look a day over 75. Although mean, the point is well taken. She is older than arguably better candidates who could have been chosen. I absolutely condemn this PC nonsense that it is a female seat. That is just asinine. Unless a female candidate was clearly the best, I would nominate a man (no, not someone like Souter--what a catastrophe which should have been anticipated). I do not have the stupid opinion that Bush is a moron. Hopefully he is crazy like a fox as they say. Still, no vetoes and no bold supreme court picks may make him a lesser president than he may have been. Reminiscent of his father, but I think that he has already surpassed his father rather easily so far. I think that most conservatives are justified in seeing this as a missed opportunity. Especially after Roberts (who was much easier to accept), it is an obvious disappointment. To quote Edna in The Incredibles: Fight! Win!


(6) Beldar made the following comment | Oct 3, 2005 10:53:44 AM | Permalink

Chris: Dubya isn't guessing. You and I are. That's my point.

(7) Beldar made the following comment | Oct 3, 2005 10:56:45 AM | Permalink

Mike: I agree that it's not a bold choice. Nor, for that matter, was the Roberts nomination.

Bork was indeed a bold choice; but his lifetime record for casting votes on the Supreme Court: 0 majority votes, 0 dissenting votes.

(8) Brent Michael Krupp made the following comment | Oct 3, 2005 11:09:30 AM | Permalink

So Bush knows her well and trusts her... to do what exactly? He hasn't exactly been a supporter of many core Republican values -- heck, he's brought us big-government, "Republican"-style and continues to seriously risk fragmenting the coalition on the right that got him elected twice.

So even if he knows her and trusts her, I'm not sure I trust him to want the same things in a Supreme Court justice that many, many of his supporters want. Yeah, it's his decision to make, but it's our decision to castigate him for it.

(9) Beldar made the following comment | Oct 3, 2005 11:14:08 AM | Permalink

Brent: Write your Congressman. Suggest he introduce an amendment to the Constitution that will let the public vote for Supreme Court Justices.

Until it passes, the President picks.

(10) owl made the following comment | Oct 3, 2005 11:17:49 AM | Permalink

No. The base, even the pro-choice base (me), feel bone deep disappointment. The kind that makes you ready for a break. Reminds me of my vacation for Dad on the second run.

(11) eddie haskell made the following comment | Oct 3, 2005 11:22:08 AM | Permalink

That's right - the president picks. I pick who I support with my money and my vote, and the only reason Bush has given me to support him is that he is SLIGHTLY less catastrophic than the Democrat alternative. How's this for a winning slogan for 2006: "Vote Republican -we don't suck quite as much as the Democrats!"

(12) DC made the following comment | Oct 3, 2005 11:27:04 AM | Permalink

Wrong, Beldar. The shilling has got to stop. There was no reason to do this. You have to rely on blind faith in Pres. Bush to support this nomination.

The nation NEEDS the debate on originalism. She can't lead that charge. Who cares if she was a managing partner? What does that have to do with Roe v. Wade, gay marriage, the rights of prisoners at Gitmo. She is not running for President of the ABA.

Drink your Kool Aid if you wish. But stop serving it. It is poisonous.

(13) Harry made the following comment | Oct 3, 2005 11:34:18 AM | Permalink

Yeah owl, how'd that turn out? Did you enjoy 8 years of Bill Clinton? Go on, "conservative base"- walk off, flirt with the Libertarians or back John McCain or another Maverick Republican, or the next Ross Perot. Sit back and enjoy the results.

Imagine President Gore, or President Kerry's appointments, or President Clinton II's for that matter.

(14) J.J. made the following comment | Oct 3, 2005 11:40:16 AM | Permalink

I am a 100% Bush fan. I agree with him on everything. However, I am worried about this pick because I see Harriet Miers as easily influenced, having read most internet info about her this a.m. She adores GWB and will go his way while under his influence. But, once she gets away from that influence and has Supreme Court power and responsibility ....

Can you reassure me in ANYWAY on this?

(15) CatoRenasci made the following comment | Oct 3, 2005 12:08:22 PM | Permalink

I'm most interested in what you hear around Texas from the real heavyweights of the bar about her intellectual and scholarly ability. There is no question SMU is not a first, or even second, tier law school, and apparently Ms. Miers was not even a law review editor at SMU. While that's not proof she lacks the intellectual horsepower to do the work at the Supremes, as opposed to the qualities that make a successful trial lawyer and firm manager, it does send up a red flag.

At least on the basis of what I do know, this is not an encouraging pick.

(16) Narniaman made the following comment | Oct 3, 2005 12:12:51 PM | Permalink

Beldar, I am a bit mystified about all this.

Not about Bush's selection -- but the reaction of many self-described "Conservatives" to Bush's selection.

We've just gone through one supreme court nomination/confirmation of a Bush selection, and everyone both right and left was forced to concede that John Roberts is brilliant and a good choice.

Bush obviously knows this woman quite well, and he feels that she would be a superb jurist on the court.

We don't know her like Bush does. It's not like he nominated Norm Chomsky or Teddy Kennedy to the court.

Given Bush's track record, why shouldn't we trust his judgment on this one?

(17) Bostonian made the following comment | Oct 3, 2005 12:17:17 PM | Permalink

My theory is that much of the Right is just spoiling for a fight and hoped to get that with this nomination.

(18) owl made the following comment | Oct 3, 2005 12:42:39 PM | Permalink

Harry rest easy, never McCain. The Right is spoiling to see Bush fight. They are tired of trying to herd that bunch of Senators and Media without him.

(19) Kurt made the following comment | Oct 3, 2005 12:44:36 PM | Permalink

While I think that there are many more impressively-qualified and more impressively-conservative candidates Bush could have chosen, I think Beldar may have a point here. Why assume that she'll be tempted by the leftward drift of the court? If she greatly admires GWB and regards him as "brilliant," who is to say she won't be even more impressed by the intellectual power of a Roberts or a Scalia?

(20) molly bloom made the following comment | Oct 3, 2005 12:47:21 PM | Permalink

Not mch to argue with here. So allow a few minor observations. For someone who doesn't govern by polls GWB spends a lot of money on pollsters, but what do I know? Bush's standing in the polls does matter as to his depleted polticial capital. Thus the stealth candidate and not a more openly conservative one.

As for the fact the Bush knows her, this is not comforting as his judgment is less than stellar- "your doing a heckava job Brownie". Or Condi "never heard of Kamikazes" Rice, or Donald "we don't need that many troops ih Iraq" Rumsfeld or dare I say Cheney, whose bad advise to Ford cost him NY and thus the election and whose bad advise to Haliburton bought them asbestos litigation (though in fairness, Cheney seems to have made up for that to Haliburton over the last 6 years). The point is Bush's judgment is absymal whether you are leftwing or rightwing.

Miers is a crapshoot. She will not vote to overturn Roe in my cynical opinion, because that would deprive the GOP of a polarizing issue.

(21) Old Coot made the following comment | Oct 3, 2005 12:48:35 PM | Permalink

I'm a layman with little formal education so I will defer to the experts as to her education and lawyer-skills. I trust Mr. Bush, so I will defer to his knowledge of her heart. But why someone so old (and before feathers get ruffled, I'm 65)? I wanted a rock-solid conservative of any race or gender who would likely have 25+ years of energetic life on the court. I didn't get such a person and I'm deeply disappointed.

(22) David made the following comment | Oct 3, 2005 12:54:41 PM | Permalink

I'm sick of you people saying, "Bush knows her, so we can trust him..." Well, you know what? How do we even know whether or not Bush truely cares about social conservative issues? Remember, Bush is the "no litmus test guy." What does he mean by that? No "Roe v Wade test." And guess what?! A judge who truely wanted to interpret the Constitution strictly would overturn Roe as it is clearly unjustified be any measure of the mind, so I DO NOT SUPPORT THIS PICK.

I am a big Bush fan, but unless I am convinced she is a solid conservative I will be sitting out future elections... good job Carl Rove!

(23) Harry made the following comment | Oct 3, 2005 12:56:33 PM | Permalink

Owl-My point exactly- I suspect Bush became convinced that the Republicans could not muster the 50 votes necessary to invoke the "nuclear option", much less pull 60 voters to invoke cloture against a (promised, I suspect) filibuster. The Mccains and Hagels and Spector's certainly won't go to bat for a strongly (publicly) conservative candidate.

Also, lest ya'll should think I'm a reflexive Bush supporter, I have some serious disagreements with his spending and immigration policies, and I'm still livid over his signing the BCRA bill. That said- this is the President we have, and I still think we're damn lucky its not President Gore or Kerry or (god forbid) President McCain (who has no use for the first ammendment)that we're talking about today.

(24) Harry made the following comment | Oct 3, 2005 12:59:10 PM | Permalink

Oh yeah- and David, what I said above applies to you too. Remember- "the perfect is the ememy of the good". Go on- walk off, just remember how we got Clinton (and Woodrow Wilson, for that matter).

(25) Geek, Esq. made the following comment | Oct 3, 2005 1:08:43 PM | Permalink

I really can't disagree with anything you said.

However, there will be major political fallout for the GOP on this. Roberts and Miers are the first SCOTUS nominees offered by a Republican President while Republicans controlled Congress since the advent of the New Deal.

And the social conservatives get a couple of question marks.

(26) Obsid made the following comment | Oct 3, 2005 1:13:55 PM | Permalink

I agree that it's more likely than not that Miers' rulings will be conservative, especially at first. She won't be Souter, but over time she could end up being a SDO or Kennedy.

I'm now persuaded, however, that there is a big problem with cronyism and more pointedly, separation of powers. It's not just that Miers worked for Bush, she's been his lawyer for over twelve years, repeatedly being appointed by Bush himself to higher and higher positions. The "ends" of her Opinions will probably be good for the country, but the "means" will be conversely deleterious. Beldar artfully argues that Miers may be uniquely qualified, but more realistically there were several women more highly qualified from several different angles, and confirmable as well.

Of course Bush thinks he will be vindicated by her rulings, but he takes away from the dignity of the SCOTUS and trashes the ideal of non-partisanship in its office, and further, sets the stage for doubting constitutional separation of powers for the next three years (at least).

(27) Bostonian made the following comment | Oct 3, 2005 1:14:04 PM | Permalink

David, if you think that having Democrats in office is better than having Republicans in office, by all means, sit out all the elections.

(28) Bostonian made the following comment | Oct 3, 2005 1:16:52 PM | Permalink

Obsid, you seem to believe that because Miers worked for Bush, that she will continue to do so after she's appointed.

Whence such cynicism?

(29) Sue made the following comment | Oct 3, 2005 1:17:03 PM | Permalink

I agree that this nomination has left many of us scratching our heads this morning. My feeling is that many of what we might consider more qualified candidates may have declined the opportunity due to the "misguided scrutiny" of the democrats and msm. If I had children especially in formative teenage years, I would have to think long and hard before subjecting them to todays Washington and msm climate. I trust the President and hope that we all will look back on this nomination as a positive in the years to come if Ms. Miers is confirmed.

(30) Obsid made the following comment | Oct 3, 2005 1:28:11 PM | Permalink

Much "conflict of interest" is simply in appearance. It undermines trust, even when people are acting with integrity. Yes, then, there would be an appearance of conflict of interest/comingling of powers that would be bad for the country--both for the next 3 years, and by precedent, much longer thereafter.

Roosevelt was blocked by his own Democratic Senators from putting his personal favorites on the bench--it threatened the independence of the SCOTUS. I think that appearance (and reality) of independence needs to be guarded today.

(31) Boger made the following comment | Oct 3, 2005 1:30:48 PM | Permalink

You gotta love W, man. His poll numbers are in the dumper. Mother nature is whacking him up side the head. Iraq is a work in progress, two steps forward, one, two or three back. He may have to boot Karl out, or worse. So he nominates Ms. Miers, with whom everybody is going to have a beef.

The man just does not cave. Its my football, goddamit, and I'm calling the plays. Come and get me!

(32) boy michael made the following comment | Oct 3, 2005 1:33:02 PM | Permalink

I appreciate an objective insight into the matter...

well composed, and a worthy read...

(33) Xrlq made the following comment | Oct 3, 2005 1:34:58 PM | Permalink

The first factor — the one that became logicially precedent to, albeit not more important than, the other key factor — was the unique-to-this-slot "need" to pick another woman to follow Sandra Day O'Connor.

I don't buy that, and I don't think the President does, either. If he really perceived a "need" to replace Justice O'Connnor with another woman, he wouldn't have named John Roberts to succeed her.

(34) Knucklhead made the following comment | Oct 3, 2005 1:45:08 PM | Permalink


Thanks for your post - good food for thought.

The folks who want an "in your face" nomination that would send the moonbats into orbit are, IMO, not thinking within the range of the politically possible or of the sort of POTUS GWB has proven to be so far.

He is NOT going to go to outright war with the moonbats. He'd got a nation to run at the moment and an "in your face" nominee, especially if it were about Roe, would be playing right into the Dems hands - it would cost more that it could ever gain.

As you pointed out, Bork has not cast a single vote on the SCOTUS and the same would become true of an "in your face" nominee this time around.

(35) ed made the following comment | Oct 3, 2005 2:22:35 PM | Permalink


"Hello, guys, GWB *knows* this woman!"

Yeah like he "knew" Michael Brown. Like he "knows" Julie Myers.

Not buying it. And frankly if she does turn out to be another Souter, then your hard-earned credibility goes right into the ****.

[Edited for hard profanity. Please keep it PG-rated and civil. Opposing views are welcome when civilly expressed, but this isn't the DU or dKos. — Beldar]

(36) Bostonian made the following comment | Oct 3, 2005 2:32:16 PM | Permalink

Ed, what's your beef with Brown? He handled four hurricanes in FL just fine, and now he goes down because LA is a corrupt jungle, and you blame that on Bush?

Anyway, he can't have known either of them as well as he knows someone he's worked closely with for years.

I didn't know I had any credibility, but thank you.

(37) Jimmie made the following comment | Oct 3, 2005 2:33:07 PM | Permalink

This post assumes that conservatives are comfortable with George Bush's opinion of the Constitution.

I don't know that if you're a conservative you can be. I can't think of one time when the administration really stood fast on federalism. We're fighting a battle now to preserve what little slice of political speech we can on the internet because the President let McCain/Feingold go to SCOTUS instead of stopping it cold as the Constitutional abomination it was.

So what Constitutional principles has the President shown us he holds in which we can trust?

None that I can see.

(38) Joshua Sharf made the following comment | Oct 3, 2005 2:39:55 PM | Permalink

I am a little concerned that she seems to have a history of contributing to Democrats up until about 1990. I know, Phil Gramm was a Democrat up until 1981, but really, how many conservatives supported Al Gore in 1988 or Lloyd Bentsen, for that matter?

I suppose one could argue that Texas was a largely Democratic state until 1994, and after W became governor she was free to join the team she was on, but that's clearly not preferable to being there before it was popular.

Like any good venture capitalist being asked to rely on someone else's judgment: I remain skeptical.

(39) StevePoling made the following comment | Oct 3, 2005 2:40:16 PM | Permalink

My first thought was "another Souter" but on second thought I started to wonder "another Abe Fortas." It boils down to whether this Texas president is a corrupt as Mr. Johnson was. It should be noted that after Mr. Fortas stepped down, Nixon replaced him with Mr. Blackmun whose perception of emanations and penumbras has brought us to this point.

Clearly, we need to learn what's in the heart of the nominee. It's interesting to note that she has given money to missionaries who translate the Bible. We might well ascertain whether those translators render the Lord's prayer, "Our Parent who art in heaven" or "Our Father..." How she reads the Bible will probably tell us how she reads the Constitution. If she thinks the Bible reflects unchanging human nature and the plain meaning of its words should hold sway, she's likely to be the type of Justice that Mr. Bush promised when he ran for president.

The fact that she doesn't have a history as a judge probably means she'll defer, at least initially, to the more academically minded jurists already on the court. Prediction: she'll get along with Mr. Scalia better than Ms. O'Connor did.

(40) James B. Shearer made the following comment | Oct 3, 2005 2:40:44 PM | Permalink

Beldar, how would you compare Miers and Gonzales?

(41) Beldar made the following comment | Oct 3, 2005 3:25:25 PM | Permalink

Mr. Shearer, both Ms. Miers and AG Gonzales have had long and intimate service to the President, and both came out of partnerships at first-rate major Texas law firms. But Ms. Miers' record as a practicing lawyer is considerably more expansive and impressive. Gonzales was a young partner at Vinson & Elkins when Dubya plucked him out of its ranks, and that's a worthy accomplishment. But it frankly pales in comparison to running a major law firm for a substantial period of time.

Because Gonzales was on the Texas Supreme Court for a comparatively short time, and because the issues dealth with there are largely different in character from those considered by the SCOTUS, I don't think his having some judicial experience puts him ahead of her.

And the flip side to what some folks are complaining about with her age is that she's not at all a lump of unformed clay, or someone who's been picked while still somewhat green whom we have to count on to develop. The suggestions I've read, for example, to the effect that she's going to be dazzled and have her will overcome by Souter (a/k/a Justice Charisma) or Breyer are absolutely ridiculous.

The reason particular lawyers at big firms get picked to be managing partner is because they're perceived to have the guts and the credibility to puncture their partners' egos when appropriate. It's more like being czar than science club recording secretary, and the job necessarily involves a willingness to smash good-ole-boys' and good-ole-gals' heads together from time to time. Gonzales has no comparable experience -- he might eventually, after a few years of running the Justice Department. But whatever his own career path turns out to be, he's much less far along it than she is hers.

(42) Beldar made the following comment | Oct 3, 2005 3:34:11 PM | Permalink

Mr. Sharf, you have to remember two things in looking at those contributions: (1) Texas was essentially a one-party state until at least the early 1980s, with the internal battles being only between conservative and populist Democrats (Ralph Yarbrough versus Lloyd Bentsen, for example.) If she'd been a Yarbrough supporter, I'd be worried. It was the mid- or late-life conversion of conservative Democrats into Republicans, plus a surge of newly-minted younger conservatives, who turned Texas into a Republican-majority state at about the same time she apparently stopped giving (in her individual capacity anyway) to Democrats. (2) Partners at major Texas law firms routinely contribute money to candidates from both parties even today. It would be very hard to find someone of her generation who was a partner at a major Texas firm who hadn't ever given money to in-state Democratic candidates at one time or another.

(43) AJ made the following comment | Oct 3, 2005 3:38:02 PM | Permalink

"My opinion of him and confidence in him is demonstrated by the fact that I nominated him to one of the highest officers in the land. I did this on the basis of my knowledge of him and my appreciation of his great qualities. Every contact I’ve had with him since he came to Washington and all I've heard about him, has served only to increase my confidence and my high opinion. He is one of the finest public servants this country has ever produced. I have no further comments because I can’t think of anything else to say." President Dwight D. Eisenhower on Supreme Court nominee Earl Warren, Feb 21, 1954

Eisenhower, many years later, on his appointment of California Governor Earl Warren to Chief Justice of the United States: "the biggest damn fool mistake I ever made".

(44) Greg D made the following comment | Oct 3, 2005 3:40:28 PM | Permalink


Yes, we conservatives wanted a fight. We didn't just want the Democrats to lose, we wanted the entire country to know that they lost, that tehy got their noses shoved into the dirt and dust kicked over the rest of their bodies.

The national Democrats are a bunch of scum. The are lying jerks who eager spit on honesty, democracy, the Constitution, and the rule of law whenever thuse things get in the way of their power.

This nomination lets the Democrats act like they have power, even though they've been consistently losing in the elections. A Republican Party the respected democracy would tell the Democrats "look, you're in the minority because you keep on losing elections. When you start winning, you can tell us what to do, but until then, we're going to operate on the beliefs that got us elected, rather than on the beliefs that got you not elected."

I'm willing to work and fight for a Republican Party that wants to crush the Democrats into the dust. I'm not willing to do that for a Republican Party that wants to "get along".

I voted for GHWB in 1988, because I read his lips. In 1992, I did not vote for him, and I'm happy he lost.

We got the Republican Congress of 1994 because Bush was gone, and his negative effect on the Republican Party was gone. If we need to have that kind of house-cleaning again, I'm willing to do it. My life doesn't revolve around the actions of the Federal Government, if we need a few years in the wilderness to get the Republican Party back on track, I can live with that.

I am really tired of Republicans who aren't willing to tell the Democrats that the Democrats are wrong. The Democrats are wrong. The idea that "the Constitution is a 'living document'", or that it "means whatever the Supreme Court says it means" is pernicious, evil, and just plain wrong.

President Bush got elected saying that. I see no reason why he shouldn't govern based on what got him elected.

Am I going to fight against Meirs' nomination? Not yet (but if it turns out the she personally favors the ICC, that changes).

Am I going to fight for her? No. President Bush knows her, but I don't. If President Bush had picked someone who I knew was on the right team, I'd be willing to fight for her. Since he picked someone that I don't know, and therefore have no reason to trust, he can do the fighting for her. And if she loses, that's his problem, not mine.

I voted for him. that doesn't mean I ceded my judgement to him (remember the Prescription Drug plan).

(45) Bostonian made the following comment | Oct 3, 2005 4:11:53 PM | Permalink

Greg, I think that fight will come sometime in the next three years. I really do.

As for the ICC and gay adoption, do yourself a HUGE favor and read the TNR article and FOLLOW THE LINKS.

The New Republic article is here: http://www.tnr.com/etc.mhtml?pid=2832.

Let’s see. She voted in favor of a tax increase once, while on the Dallas City Council.

As for the ICC & gay adoption, TNR links to a supporting “report” supposedly authored by her… but if you follow the links, you see that she was the chair for a meeting of the ABA, and you’re seeing the meeting agenda & report.

They’re not her words.

(46) Ron made the following comment | Oct 3, 2005 4:18:22 PM | Permalink

I am a little concerned that she seems to have a history of contributing to Democrats up until about 1990.
Two words, Zell Miller. Democrat is not synonymous with moonbat.

Since I'm not entirely sure about Bush (many reasons above, I'll add a new cabinet department in Homeland Security) I'm not entirely sure I can trust his judgement. But he is the man that makes the call.

(47) J.J. made the following comment | Oct 3, 2005 4:20:44 PM | Permalink


I am reposting this, as I would really like your opinion:

"I am a 100% Bush fan. I agree with him on everything. However, I am worried about this pick because I see Harriet Miers as easily influenced, having read most internet info about her this a.m. She adores GWB and will go his way while under his influence. But, once she gets away from that influence and has Supreme Court power and responsibility ....

Can you reassure me in ANYWAY on this?"

(48) hunter made the following comment | Oct 3, 2005 4:27:48 PM | Permalink

Well said. A symptom of W's poll problems is a lack of confidence in him by those who otherwise support him. There is a great deal of anxiety out there, and some of it is justified. But this near total melt down from the right is not justified, imho.

(49) Beldar made the following comment | Oct 3, 2005 4:31:09 PM | Permalink

[Edit: On second thought, I'm reprinting the comment I'd originally left here about Ms. Miers' bar service as a new post. — Beldar.]

(50) Bostonian made the following comment | Oct 3, 2005 4:41:44 PM | Permalink

JJ, maybe you could tell us where you get the idea that Miers "adores" Bush and has an easily swayed personality?

Links preferable.

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