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Saturday, October 08, 2005

The moving Miers goalposts; Bork, Barrabas, and elitism; and the soft, unconscious bigotry of limited imaginations

The title of this post is fair warning that this essay may tend to wander.

JPod promptly responded to my wee-small-hours post and my associated email to him about Harriet Miers' op-eds with his customary grace and wit — but in a way that nevertheless disappoints. Her op-eds read, he says, "like all 'Letters from the President' in all official publications — cheery and happy-talky and utterly inane."

Well, yeah. That's sorta because they were, indeed, "letters from the president" written for the bar journal. "They offer no reassurance that there is anything other than a perfectly functional but utterly ordinary intellect at work here." Well, yeah. But "perfectly functional intellect" is pretty much exactly what we want, and all anyone has any reason to expect, from a bar president writing in a bar journal; anyone's writing for United States Reports can reasonably be predicted to be different and more profound, just as the issues being written about are different and more profound. Can you point me to a state bar president in history who's used his "letters from the president" column to perform some stunning new synthesis of constitutional theory? You fault her for being appropriate exactly why?

*********

What's very frustrating to me is how the goalposts keep moving on this nomination, and it's my own team that's doing it. (I say "my team," I actually mean "what I thought, apparently wrongly, was a team, and the one I've always thought I was on.")

First it's "She wasn't even on law review." Okay, so I explode that untruth, which took no more effort than to look in a standard legal directory (plus the preexisting knowledge, as a Texas lawyer, that the "Southwestern Law Journal" is in fact a law review even though it doesn't have the words "law review" in its name). Is the response, "Hmmm, well that's encouraging, we're sorry about jumping to that wrong conclusion, and you know, that's pretty encouraging, she was indeed a law review editor just like John Roberts"?

No, the response is "She was at a second-rate law school." I and others point out that it's a pretty good school, she was there because her family and financial situation tied her to Dallas, she was among the top of her class, and her professors still rave about her 35 years later. Again, is the response, "Hmmm, well, that's encouraging"?

No, the response is "Well, she's never handled any really big cases involving constitutional law." I point to three published opinions from appeals on constitutional law matters — one of them a question of constitutional first impression when she was opposed by one of the nation's most respected constitutional law professors with the outcome of a presidential election on the line, and she just beat him like a drum in the trial court, the Fifth Circuit, and the Supreme Court. Here you go, guys, volume and page numbers. Is the response, "Man, we've been really wrong about our facts now more times than we've been right, maybe we're being grossly and rabidly unfair?

No, the response is "Well, anybody could have won that case. And besides, she's never written any op-eds."

It would be useful, and productive of further reasoned debate, if some of the people who've been proven wrong about some of these facts would squarely admit that, take responsibility for it, and confess that their proven factual unreliability in the past ought caution them to go slow in the future in making sweeping pronouncements. But not many critics of Harriet Miers have been slow in making sweeping pronouncements. Basically the only limit has been whether the critics have broadband internet access or are still on dial-up.

*********

But no one's being elitist! Oh, no, there's no hidden elitism here! Absolutely nobody opposing this nomination is doing it because of elitism, and how dare you question their patriotism?

So who's the newest critic who insists that this nomination is "a disaster on every level"; that "It's a little late to develop a constitutional philosophy or begin to work it out when you're on the court already"; and that "It's kind of a slap in the face to the conservatives who've been building up a conservative legal movement for the last 20 years"?

Robert Bork. The acid-tongued, short-fused, fire-breathing, contempt-dripping law professor-turned-judge who famously scolded senators on the floor of their own chamber for being so stupid and who generally freaked out the American public. A genuinely brilliant conservative, whose lifetime personal contributions to the precedent of the Supreme Court turned out to be zero. Well, he is indeed qualified to speak of disastrous nominations and botched confirmation processes, being as he is the all-time quintessential example of same in the history of the Republic.

But he's not being elitist in blaming a practicing lawyer for not publishing constitutional law treatises on a regular basis, no sir. And we'd keep moving these goalposts for any nominee, not just one who's coming from amongst practicing lawyers instead of the professoriat.

Robert Bork is an elitist. Period. He's not the only one, either. And confronted with that accusation, he might very well twirl to face his accusers, agree, and mount an impassioned defense for elitism that would, in the end, not be an endorsement of excellence but an assertion that only law professor-types are excellent enough to be on the Supreme Court. No one will ever convince him otherwise, his mind is closed.

*********

But I am not, repeat not, accusing every other opponent of this nomination, nor every skeptic about this nomination, of identical elitism! To the contrary, many of the people squawking now are, in other contexts, quite meritocratic, and quite skeptical of the cultlike worship of academics. Some of them are in or of legal academia themselves, and yet ordinarily are wonderfully skeptical of it! That's precisely why they're so offended at the suggestion that elitism is involved. I freely stipulate — nay, I earnestly join them in proclaiming! hear ye, hear ye! — that their skepticism or opposition is not the result of culpable, conscious bigotry and snobbishness.

But that doesn't mean it's altogether fair, or altogether rational, either.

*********

Look, folks, Dubya didn't pick who you all clamored for him to pick. That's not because Dubya hates you; he wasn't flipping you off. And he absolutely, positively knows how important this stuff is; it was no accident, nor insincere, when he talked about judges in almost every campaign speech in 2004. But he recognizes that the duty of making this pick is ultimately his. And he sincerely believes that he, personally, has a more solid basis for making an informed prediction about what kind of Justice this woman will become than he, personally, has for making predictions about anyone else, including any of the ones y'all were clamoring for — some of whom he might return to next time, if there is a next time, but none of whom he knows now like he does Harriet Miers.

"She's not who anyone else would pick as the 'best candidate' even among practicing lawyers," you insist. And you're right, if you exclude from "anyone else" not only Dubya but her other clients and colleagues. There are in fact a great many practicing lawyers with comparable qualifications (although I dispute that there are many with hugely better ones). But they all are strangers to our President, like Harriet Miers is a stranger to you. So why should he trust them?

And why should you trust him? Well you don't have to. But he is the President. Implicit in the fact that the Constitution gives him the pick is the likelihood that he'll pick someone who's qualified from among the people he actually knows a lot about; and that ain't cronyism if they are indeed qualified.

*********

A sympathetic commenter of mine wrote the other day, "This is like the crowds shouting for Barabbas," which made me laugh really hard. That's too harsh.

But an unfortunate confluence of thoughts and emotions — almost viral, certainly self-sustaining, an ugly feedback loop — has swept through many folks on the Right, including most of the punditry (save, as JPod points out, myself, Hugh Hewitt, and there actually are a few others, albeit less windy ones). Some part of it's disappointment and resentment. Some part of it is insecurity. That is, some folks harbor fears — and some folks, more than just doubting him, boldly join the Left in asserting — that Dubya really is a stupid chimp, an idiotic cowboy, a corrupt cronyist, a secret traitor to the cause. (The Left's version replaces the last element with "puppet of Rove and evil Halliburton.") If you're pounding the table as you read that and you're saying "Damn right he is!" then you're beyond my or anyone else's power to persuade; no one will be able to cure your insecurity, and nothing would reassure you short of the President ceding to you, personally, the right to make these nominations.

Yet, still, I think that disappointment and insecurity are ultimately the lesser part of the confluence. And that's why I still have hope for this nomination. The greatest part of the confluence of negative thoughts and emotions about this nomination comes, I firmly believe, from a failure of imagination. And that is something that's curable.

In some cases, it's actual ignorance about this particular nominee and about her career path. People didn't know (and wouldn't wait to find out about) her academic record, or the quality of her law firm and its practice and its clientele, or her service to the profession through her bar work, or the incredible responsibility she's held and discharged competently thus far in the Administration. Harriet Miers is the very model of the work-horse, not the show-horse, and unless you happen to be, say, another lawyer who handles complicated litigation in Texas — me — you're understandably likely to have been uninformed about most of those facts.

And in other cases, the problem is that many folks just have never spent any serious amount of time considering any sort of potential nominees who are off the beaten track. It's terribly clichéd to say, but you're failing to think outside the box.

When presented with a nominee whose main credentials are (a) a successful career in private practice as a courtroom lawyer, (b) business leadership within her firm, (c) professional leadership within her profession, and (d) competent performance of important but entirely behind-the-scenes work for the Administration, your reaction has been: "But she's not a judge! She's not a professor!" And you're just stuck in that rut. You're so deep into it that you can't even tell it's a rut.

Instead of asking yourselves, with an open mind, "What gaps in the present Court might a person with Harriet Miers' background fill?" you're just saying over and over, "But she hasn't written any articles about constitutional theory!" You've blinded yourself to the fact that historically, not many of our Justices had done that before taking the bench either; historically, many of our Justices have come from backgrounds quite similar to Harriet Miers' and absolutely no more distinguished than hers.

You've gotten into your heads this rigid, narrow conception of what the next Justice will be doing: "Why, the next Justice is going to be spending her full time articulating and persuading her brethren with subtle, difficult critiques of legal positivism versus legal realism, or textualism versus originalism," or something ... mystical. Oh, poppycock. I hope the next Justice will be doing less of that — the Honorable Anthony "Sweet Mysteries of Life" Kennedy does enough of it for the entire Court.

God save us from brilliant, eloquent, articulate Justices, steeped in intellectualism and rigorous analysis of life and law, who continue to screw things up on a near daily basis. Save us from deep thinkers who are too distracted to keep themselves from stepping in the dog poo and then tracking it all over the house. God grant us some smart but practical Justices — "modest" Justices, in Chief Justice Roberts' terminology. Justices who solve the problems that are brought to them in their limited roles as judges, rather than creating them. Justices who don't think it's their duty or their right to go looking for other perceived problems outside the proper limited scope of their role, or think it's their duty or right to solve everything everywhere.

And God save us from the failure of imagination that would prevent us from perceiving that some such  smart, modest, proper-problem-solving Justices may come from — and indeed, are especially likely to come from — backgrounds like Harriet Miers'.

Posted by Beldar at 03:10 PM in Law (2006 & earlier) | Permalink

TrackBacks

Other weblog posts, if any, whose authors have linked to The moving Miers goalposts; Bork, Barrabas, and elitism; and the soft, unconscious bigotry of limited imaginations and sent a trackback ping are listed here:


» Beldar Makes the Case from Penraker

Tracked on Oct 8, 2005 8:20:22 PM

» More thoughts on the Harriet Miers kerfuffle from Small Town Veteran

Tracked on Oct 9, 2005 1:24:59 AM

» I've lived through some tumultuous times.... from Media Lies

Tracked on Oct 9, 2005 2:35:28 PM

» Justice Scalia Defends Miers from California Conservative

Tracked on Oct 9, 2005 3:01:24 PM

Comments

(1) Mark L made the following comment | Oct 8, 2005 3:45:13 PM | Permalink

But it really is the crowd screaming for Barabas. While Barabas was a bandit, he was also a "freedom fighter" -- in the sense that he opposed Roman rule, and was viewed as a fighter.

The conservatives wanted a fight over the nomination. They wanted a full-tilt battle-royale in which a conservative would be confirmed amid the figurative dead bodies of liberaldemocrat Senators. Instead they got an outside-the-box candidate that could get confirmed without a fight. A clever outside-the-box choice, that offers the Supreme Court some important assests that it currently lacks, but one that could have been confirmed without a fight -- and would have made it a hell of a lot more difficult for the Democrats to fight the next nomination.

But no. No fight? No support!

They ignore that they could get what they want without a battle -- and that wars have been lost because one side wanted to get with a fight what it could have gotten without a fight.

The Japanese did not have to fight the Americans at Midway -- but they wanted to, because , by God, they outnumbered the Americans three, four to one in aircraft carriers, so let's get it over with. They had their asses handed to them.

The Christian army at Kosovo Poltje did not have to fight the Moslems, and knew they would lose everything if they did. But they fought anyway, and lost.

Or how about Charles at Poltava? An utterly unnecessary battle in an utterly unnecessary war that resulted in Sweden ending up as a third-rate power, instead of a world leader.

W. wanted to defeat the Democrats by maneuver. He has had a steady stream of victories over the last six years, but I guess maneuver victories just don't taste right to conservatives. We don't want Napoleon at Marengo, outflanking our foes. We want Napoleon at Borodino -- straight up the middle and show them that *we* don't care about casualties.

Pfah. If the Democrats win the next two elections, it will not be because of W.'s flawed strategy. It will be because of the base's flawed vision.

(2) mitch made the following comment | Oct 8, 2005 3:59:17 PM | Permalink

You make some very good points, and while I was like many, surprised at the pick, I have only one question for her, one Roberts didn't address, and that is this: Does the 2nd Amendment guarantee an individual right to keep and bear arms? If so, then, by all means confirm her. If not or if she is wobbly on it (reasonable regulations kind of person), then may she go down in flames.

(3) Jim Hu made the following comment | Oct 8, 2005 4:00:23 PM | Permalink

I've been calling it Prejudging Miers Syndrome...a variant of Bush Derangement Syndrome.

(4) Paul Deignan made the following comment | Oct 8, 2005 4:09:19 PM | Permalink

Wishful thinking masquerading as imagination has lead to some pretty horrific blunders in te past.

Beldar, your post does not distinguish between the two concepts. Is there a reason for this, i.e. could you make the case that this imagination is not mere fool-wishery?

(5) Mark K. Sprengel made the following comment | Oct 8, 2005 4:17:42 PM | Permalink

I made a point on my blog that perhaps Bush is thinking another stealth nominee will ease the worries of other judge(s) that might considering retiring. If someone believed that an individual was truly conservative in judicial matters and a democrat suggested that name, wouldnt it make sense to seriously consider them for the nomination?

(6) coffeedrinker made the following comment | Oct 8, 2005 4:20:25 PM | Permalink

The moving goalposts analogy hits the mark. Me thinks I seen this pattern before.

Reminds of many arguments I have had with Liberal Elitists.

Anyway, great post. I, for one, am not afraid to thoroughly denigrate people such as JPod, Frum, Kristol, Will, etc. Personally, the only time I agree with these conservative "elites" is when I have already formulated my own opinion on a certain matter. (note: I use the term "elite" as a derogatory comment and not due to any unique talent or skill as a political commentator).

The analogy that these people are throwing fit because GW didnt choose their candidates is so fitting.

(7) Senator Palpatine made the following comment | Oct 8, 2005 4:29:59 PM | Permalink

Beldar,

There is some elitism in the criticism. Ann Coulter's column is the best example.

I don't care she went to SMU, or that she headed the Texas lottery. As I said before, it's not what is in her resume, it is what is NOT in her resume.

She is by all accounts smart and accomplished.

There are two concerns. There is little evidence, besides her working in a Republican adminstration, that she is all that conservative. She has been on the record speaking negatively of the Federalist Society, she has puportedly supported affirmative action, and her intimate relationship with the ABA is, despite your protestations to the contrary, very troubling. The other day she said Warren Burger was one of her favorite justices. None of this bugs you?

The second concern is related to the first. If she doesn't have a solid judicial philosophy today, when she takes her seat on the Court, and she is not all that conservative in the first place, will she be amenable to a more legislative style, as O'Connor was. The parrallel is perhaps stronger than you wish to concede, Beldar. O'Connor was not a stupid lady and nobody accused her of being one, but she drifted more and more leftward as time passed, at least in part because she had no original mooring to a judicial philosophy. Is it just a coincidence that she took to the Court without an articulated judicial philosophy and her opinions for 25 years reflected that fact?

Further, let us assume she is a solid conservative vote, and she votes with Scalia and Thomas regularly, even on the key issues. We want more than just a vote, we want persuasive jurists capable of shifting the legal culture to the right. Now, this may not be reason alone to oppose her nomination. But the questions of her conservatism as well as her lack of public record on constitutional jurisprudence, lead me to the unfortunate conclustion that Miers must be rejected in favor of a proven conservative jurist.

Considering the track record on nominees, Republican presidents apparently need a little help. Nixon screwed up, Ford Screwed up, Reagan screwed up, and Bush 41 screwed up. Now, what reason do we really have to believe Bush won't follow in his predecessors footsteps? Is he really that more consevative or reliable than Reagan?

Also, Bork is right this is a slap in the face to the right-leaning legal community. He has picked two nominees for their lack of a paper trail. Way to encourage your best and brightest to keep up the fight! They're not worthy of consideration because they had the courage to make their opinions known. Bork was not being an elitist, and it's shameful that you would lump him in with the Coulters, et al.

(8) Senator Palpatine made the following comment | Oct 8, 2005 4:34:49 PM | Permalink

"They ignore that they could get what they want without a battle."

Yeah, like we got with Stevens, O'Connor, Souter, and Kennedy? Like those guys?

Yeah, we have no reason to worry. You're right, let the President pick whoever he wants. Who are we to tell him differently? After all, it's worked out well for us in the past, right?

(9) David Walser made the following comment | Oct 8, 2005 4:53:53 PM | Permalink

Great post Beldar.

Not only is there a failure of imagination in failing to see that a great justice can come from the ranks of practicing lawyers, there is also a gross overestimation of what it takes to be a justice. Understanding the Constitution does not require years of study, extended meditation, nor access to an electron microscope. The document is not written in some ancient, lost, language that is understandable only with the aide of some Rosetta Stone. Indeed, much of our problems with the Court has been brought about by those who have been staring at the Constitution so hard and so long they have started to see things that aren't there! Indeed, some of the current justices seem to give more weight to what is unwritten (or perhaps, what is written in some foreign jurisdiction) than to the plain meaning of the language of the Constitution. It's been our reliance on specialists that has given us the pinheads who confidently answer how many angels can dance on the head of any given pin! How else are we to explain that one county may display the 10 Commandments while another one may not? You need an awful lot of education to be that stupid! We don't need more justices who over think things and give us rulings that might work in some alternate universe but are wholly unworkable on this planet. Instead, we need more justices who understand the Constitution is a political document written by men for the purpose of defining the reach of governmental power and for controlling the interaction among branches of the government, the states, and the people. It was plainly written with little of the flowery language of the day precisely so it could be understood by the common man -- with or without formal legal education. It's only in our day and age that we have come to think only attorneys can understand the Constitution. Now, it seems, the document has become so complicated its understanding is beyond even most attorneys. Hogwash!

(10) Glenn made the following comment | Oct 8, 2005 5:09:58 PM | Permalink

Beldar said:

God save us from brilliant, eloquent, articulate Justices, steeped in intellectualism and rigorous analysis of life and law, who continue to screw things up on a near daily basis. Save us from deep thinkers who are too distracted to keep themselves from stepping in the dog poo and then tracking it all over the house. God grant us some smart but practical Justices — "modest" Justices, in Chief Justice Roberts' terminology. Justices who solve the problems that are brought to them in their limited roles as judges, rather than creating them. Justices who don't think it's their duty or their right to go looking for other perceived problems outside the proper limited scope of their role, or think it's their duty or right to solve everything everywhere.

Amen. But if God will not grant us all this, may He at least grant one small voice who may remind the "brilliant, eloquent, articulate Justices" that they are human beings and not priest-kings just because they cannot be held accountable for their pronouncements.

(11) David Walser made the following comment | Oct 8, 2005 5:12:28 PM | Permalink

This entire week has reminded me of a new bride seeing her husband play poker for the first time. The wife, not playing poker much herself, asks her husband if he has a good hand. Husband, not wanting to scare the other players at the table from betting large sums of money, just smiles and nods. Not pleased with this brush off, the wife asks if he knows what he's doing. "Trust me," and a smile are the only responses she receives. Now she's furious. "Trust me?!" she screams. "That's our money you're playing with, buster! Why should I trust you? How do I know you've a winning hand?" Of course, the husband could show her his five cards -- Ace, King, Queen, Jack, 10, all spades -- and explain why he was pretty sure the hand would be a winner, but he cannot do this without making the other players aware of his hand, too. In sum, the bride, not understanding the consequences of her hissey fit, is making it a lot harder for her husband to win the down payment on the home she'd like to buy.

Or, I could say that what those demanding Bush prove Miers is the right nominee have been doing is exactly the same thing as the Democrats in their demands that Bush publish a time table withdrawal from Iraq. Bush cannot meet that demand without making it more difficult to accomplish our mission in Iraq. No matter how well intentioned the critics, these demands of proof make it far more difficult for the President to do his job.

Bush may have had several candid talks with Miers over the last decade in which she has shared with him her views on the proper role of the court. Privy to this information, conservatives might be very comfortable with her nomination. Privy to the same information, the press and the Democrats might make it impossible to confirm her. Or, the President may have made a decision to spend his limited political capital in other areas while still getting a solid justice on the court. Not being privy to all the information the President used in making his selection, we cannot know why his selection was not the same one we might have made, nor can we say, for certain, his decision was wrong.

(12) saveliberty made the following comment | Oct 8, 2005 5:16:57 PM | Permalink

I think that Harry Reid's positive response for this nomination has accomplished what Nancy Pelosi's outburts do to the prospects of serious Democrats.


(13) joe made the following comment | Oct 8, 2005 5:19:04 PM | Permalink

W. wanted to defeat the Democrats by maneuver. He has had a steady stream of victories over the last six years, but I guess maneuver victories just don't taste right to conservatives. We don't want Napoleon at Marengo, outflanking our foes. We want Napoleon at Borodino -- straight up the middle and show them that *we* don't care about casualties.

like his brilliant victories in regards to immigration and spending, and his brilliant victory in social security reform. his brilliant victory in the deficit. his brilliant victory in Iraq. With more victories like these, who needs defeats?

(14) PRIM made the following comment | Oct 8, 2005 5:23:34 PM | Permalink

Beldar: You're the best. Or maybe you and Hugh. I read NRO's Bench Memos and Confirmthem, both group blogs. Group blogs for pundits who don't otherwise have really important commitments except to pundificate. You and Hugh live in the real life, and do this blogging stuff as an extra. And you do it without a loud chorus of yea or nay sayers.

As an originalist myself, I think there still are some issues that need to be evaluated in the context of today's realities, while giving strong voice to the Founder's words. E.g., I doubt that Thomas Paine would have been part of a group blog. I think he would have followed the Beldar/Hewitt formula.

I think your concept of moving goal posts is obviously correct. In the context of this nomination, the goal posts were moved immediately upon the announcement. While the right supported Fred Thompson's advice to Roberts about not expressing opinions on issues that might reach the Court, in Miers' case, all of a sudden, we need to grill her on every issue. Whatever.

But your assembly of factual bases for your positions continue to impress me. Your takedown of John Podhoretz is a great example. By the way, he has always been one of the first voices I have looked to on just about any issue. And he is usually spot on. One has to wonder where he is coming from here. He's usually so intellectually adroit. (Someone might want to point out to him that it was not Blackmun in ROE who first referred to emanations and penumbras, but Douglas in GRISWOLD. This, after claiming, on Hugh Hewitt's show, to have read extensively important Supreme Court opinions on constitutional law. Anyone who believes the right of privacy was invented in ROE is simply unqualified to comment on SCOTUS nominees.)

I don't know if it was Podhoretz or another highly respected (until now) thinker on the right who posited the notion that the Democrats have become unviable because their sole issue is to keep abortion on demand. I'm not sure that the current right opposition to Miers is not just the mirror image of the same thing. The elitist message that SCOTUS is totally about constitutional law (i.e., reversing ROE) disregards probably 90% of the the Court's cases.

I'm thinking that National Review and Weekly Standard should be checking their subscription renewals closely. I, for one, have no interest in following their thoughts if they can't raise themselves above the narcissistic hysteria over Miers.

As I said, you're the best.

(15) DC made the following comment | Oct 8, 2005 5:27:19 PM | Permalink

"Robert Bork. The acid-tongued, short-fused, fire-breathing, contempt-dripping law professor-turned-judge who famously scolded senators on the floor of their own chamber for being so stupid and who generally freaked out the American public. A genuinely brilliant conservative, whose lifetime personal contributions to the precedent of the Supreme Court turned out to be zero. Well, he is indeed qualified to speak of disastrous nominations and botched confirmation processes, being as he is the all-time quintessential example of same in the history of the Republic."

I knew you and the rest of the WH flaks would go this route. Robert Bork has done more for conservative legal thought than virtually any one in the 20th century.

His criticism was principally: with no constitutional philospophy, we have reason to fear this woman will change and be influenced by the liberals on the Court.

The only people who don't drift are known conservatives with a proven track record. We have no record from Miers. This is her principal problem. In fact, we have a record that shows she has less-than-conservative credentials. You never mention this ... i.e., the Federalist Society, the warmth with the ABA, her actions on Dallas City Council, the DNC contribution (the year after Bork was savaged), etc.

I can live with her qualifications. I can't live with the uncertainty, and I do think it is unfair for this President and his flaks to jam this nominee down our throats and say "trust me".

(16) David Walser made the following comment | Oct 8, 2005 5:46:02 PM | Permalink

Another type of elitism is at work here. It's the if-she-were-any-good-I-would-have-heard-of-her mentality. I'm a tax professional working in a Western state. Recently I worked with a local securities lawyer on a large transaction for a mutual client. In the course of this engagement, we needed to discuss the transaction with the attorneys representing a multinational bank. Before our call, the lead attorney for the bank expressed skepticism about my colleague: "If she were any good, she'd be in New York and I would have heard of her." Doesn't that capture the attitude of many who are carping about Miers? Ultimately, it's not her lack of Ivy league credentials that rankles, it's that her critics don't know her and they can't admit the possibility that they do not know every qualified candidate for the office.

(17) Rob made the following comment | Oct 8, 2005 6:02:51 PM | Permalink

They claims its not about elitism.

Ann Coulter doesn't even hide her elistist attitude:

"Harriet Miers went to Southern Methodist University Law School, which is not ranked at all by the serious law school reports and ranked No. 52 by US News and World Report.....

....I know conservatives have been trained to hate people who went to elite universities, and generally that's a good rule of thumb. But not when it comes to the Supreme Court."

I still cannot understand how Ms Coulter would have supported Priscilla Owen, though having extensive judicial experience (the libs would have had a field day with her opinions), considering that Ms Owen a mere graduate of the lowly Baylor Univ Law (also rated 52nd) would have had extreme difficulty satisfying Ms Coulter's academic litmus test.

Any chance the Time Magazine cover story made Ms Coulter into a snob?

(18) Rob made the following comment | Oct 8, 2005 6:09:36 PM | Permalink

correction

s/b "They claim"

(19) Ironman made the following comment | Oct 8, 2005 6:11:15 PM | Permalink

no, growing up as old money in New Canaan, CT was all Ivy League Annie needed

(20) Rob made the following comment | Oct 8, 2005 6:25:43 PM | Permalink

The only legitimate issue with Ms Miers (as columinst Kruthhammer mentioned) I would be concerned with is the extent, if any, to which a future Justice Miers might need to recuse herself on certain critical issues involving the war on terrorism, in light of the fact that she was involved with these issues at the White House

We don't want for example Judge Ginsberg having in effect 2 votes on these issues, they are too critical for her left wing nonsense

We need someone with some expertise (and not Lawrence Tribe clones) objectively describing potential problems


ref United States Code, Title 28, Section 455
Disqualification of Justice, Judge, or Magistrate

(21) Ruth Draper made the following comment | Oct 8, 2005 6:50:15 PM | Permalink

Got linked to your blog on Free Republic. Am bookmarking for husband and atty son to read. Excellent read. Thanks.

(22) Gregory S. Neal made the following comment | Oct 8, 2005 6:58:45 PM | Permalink

Coulter's problem is that Bush didn't pick her. SHE wanted to be on the court ... herself.

(23) Beldar made the following comment | Oct 8, 2005 7:08:31 PM | Permalink

Palpatine said,

There is little evidence, besides her working in a Republican adminstration, that she is all that conservative. She has been on the record speaking negatively of the Federalist Society, she has puportedly supported affirmative action, and her intimate relationship with the ABA is, despite your protestations to the contrary, very troubling. The other day she said Warren Burger was one of her favorite justices.

She is working for a Republican administration! She's doing so for probably 1/8th what she made in private practice, and certainly not for glory. (Whatever they're paying her isn't enough for this abuse.) She's been working elbow-to-elbow with Dubya for ten years now, ever more intensely and responsibly. That's not nothing. What she actually said about the Federalist Society -- that being a member marks you politically -- is in fact true, and not necessarily critical. Like Roberts, she's spoken at FS events, I'm told, although I don't know the details; and she certainly hasn't been on some years-long crusade against it, which seems to be feddie's reaction. (And no offense to the Federalist Society folks, but you don't own the conservative movement.) I've seen nothing yet to indicate that she personally supported any liberal political position taken by the ABA; Scalia did ABA committee work; it's unfortunate that the ABA has drifted from its apolitical purpose, but it's still the oldest and biggest and most influential (for better or worse) national bar association, and her working within it for constructive purposes hardly puts her up there with Lenin, Trotsky, or Larry Tribe.

There are some people who are gunning for this nominee for reasons that have nothing to do with her. (I'm not talking about skeptical pundits and bloggers.) That this stuff is the worst they've come up with so far, frankly, reassures me.

Justice O'Connor was a big-time politician -- Arizona state senate majority leader. Now that's not necessarily Tom DeLay in a dress. But a huge part of Justice O'Connor's problem on the bench -- and I agreed with far more of her votes that I disagreed with, and deny that she was a "liberal" Justice -- came from her political pragmatism overcoming her principles. Grutter is the clearest and career-capping example, but you can see that elsewhere too. There are many who describe Ms. Miers' brief sojourn in elected public politics, on the nonpartisan Dallas City Council, as a failure because she, in contrast, wouldn't slap backs, cut deals, or bend on principles. I can't remember where I saw this, but I recently saw someone comment that Justice O'Connor and Justice Kennedy have been frequent participants in the Beltway cocktail party and dinner trail, but they couldn't imagine Justice Miers doing that.

Coffeedrinker, I'm genuinely not mad at Frum, Will, JPod, Bainbridge, or anyone else (except Jerome Corsi, who I might strangle if given the chance). They're entitled to contrary opinions, even to express them sarcastically and snarkily, even if you and I may disagree strongly with them. They're not the enemy; they're just insufficiently imaginative (and perhaps to some extent naive or uninformed both about Ms. Miers and about the real day-to-day workings of the Court). They will continue to have my respect and affection. And some of them will still come around, I predict.

Rob, section 455 isn't a problem. Short answer: Judicial opinions have not read it nearly as expansively as its literal words might suggest.

Ann Coulter is wicked-funny, wicked-smart, but also just wicked. (Kidding; sorta.) She definitely says outrageous things to sell books. I don't believe she means a good 25 percent of what she says, but some of what she says makes her deserving of a good paddling, and if she agrees I'll gladly email her my home address and pay her plane fare.

Mr. Walser, that's a really good point. If we asked the punditocracy "Who would you pick out of the ranks of practicing courtroom lawyers," most of them couldn't come up with any name other than David Boies. Who isn't going to be a Dubya nominee.

DC, I don't disagree with you that Bork is a great thinker whose writing and speaking has contributed a lot. I'd have voted to confirm him. That he was not confirmed was due in no small part, however, to his elitism -- which is palpable, it rolls off the man like heat waves off a baking 110-degree pavement -- and his own ego. The man self-destructed, and my snark notwithstanding, he's actually the very last person in the world to be giving advice and commentary about how to actually get conservatives confirmed to the Court.

(24) Rob made the following comment | Oct 8, 2005 7:16:30 PM | Permalink

Joe

your sarcastic mention of W's "brilliant victory in Iraq." tells me you really don't get it

THE BURDEN IS ON YOU now to explain to all why AL QAEDA failed to launch a single domestic attack, for example between 911 and the November 2004 Presidential election.

Let me suggest a reason:

Under the leadership of George Bush and the United States military we have successfully engaged in a full court press (yes its difficult) against Al Qaeda's worldwide infrastructure and its enablers, with Al Qaeda leaders either dead or hiding, impotent, kept off balance, crippled, or left to make empty threats against the USA, which are then dutifully reported by the fawning left wing worldwide press.

Yes, they can still attack the USA

However, here's a dirty little secret:

Al Qaeda's high level leadership increasingly appear unwilling to die for their cause. This means a modified verson of a cold-war strategy of MUTUAL ASSURED DESTRUCTION has been feasable. For Al Qaeda its not a matter of simply attacking the United States on a large scale, its a matter of attacking AND personally surviving at the leadership level. Its clear they haven't yet figured out how to do both simultaneously

We hear complaints about Osama not being captured or killed. The more interesting question is why Osama hasn't already personally sacrificed himself by leading a massive last attack against the USA

The reality is if and when Al Qaeda or his designated leadership agents successfully hit the United States with a large scale attack, their leadership structure that carries this out (basically would be someone below Osama's level who actually stepped outside of hiding) who planned the attack will either be killed or left (like Osama) to a life of irrelevance hiding in caves and most importantly THEY KNOW THIS - which in effect makes a updated version of mutual assured destruction to be possible, much as the United States traded warhead megatonnage against accuracy that all but guaranteed to take out certain key Soviet leadership groups via nuclear strikes back in the cold war during the 1980s

Of course Al Qaeda has no country making conventional MAD strategy impossible, but they do have leaders - and the only way to engage this enemy is a full court press exactly as Bush is doing


(25) Rob made the following comment | Oct 8, 2005 7:37:00 PM | Permalink

Beldar

That would be good news if recusal is not a signficiant factor

This site has done an excellent job providing new information. The more I find out about Ms Miers the more impressed I have become. Her record is truely oustanding

Personally I am disgusted with this elitist feet-stomping giant hissy fit people like Ann Coulter, Laura Ingraham, and Rich Lowry and others have engaged in over the past week

Every person has a right to state reasons why they oppose a nominee, however the style and manner of their attacks on Ms Miers have been insulting, degrading, and disrespectful to this woman


(26) Senator Palpatine made the following comment | Oct 8, 2005 8:31:23 PM | Permalink

First, thank you for responding. I value your input in this very public debate among conservatives.

While I concede Bork is an elite, I do not think he is an elitist. He despises the elite in this country. I do agree he does not suffer fools gladly, but that does not translate to elitism. Coulter wrote a vile, indefensible piece of trash, fixating on SMU's US News ranking. That is petty elitism, not Robert Bork's comments.

Bork understands his performance was poor (in a political sense) before the judiciary committee. He joked that giving advice to Roberts would be like asking General Custer how to deal with the Indians. But he is also a central part of the conservative legal movement in this country, and he (like a lot of others) feels betrayed by the President's decision. He has every right to say that, and say it publicly.

I must emphasize my agreement with your points about Miers' experience. None of it is disqualifying, and much of it is a good thing to have in a Supreme Court justice. But I believe only those who have had fairly extensive exposure to constitutional law--through study or practice or governing--should be nominated. That's my personal preference, to ensure competence and fidelity to conservative judicial philosophy.

Now to Miers' prior political involvement and statements. If it was determined Miers was pro-affirmative action (and I think being for the policy necessarily implies you believe it's constitutional), would you still support her? What if she really thinks Warren Burger is one of her favorite justices? That doesn't bug you either? I might be able to dismiss one of any of the things I mentioned, but the evidence seems to be mounting that she was, at one point in time, left of center on a lot of issues very important to legal conservatives.

(27) TommyK in California made the following comment | Oct 8, 2005 8:35:56 PM | Permalink

Beldar,

I think you have done a superb job in supporting the argument that Harriet Miers is smart enough to be on the Supreme Court. She certainly has a resume as or more impressive than Clarence Thomas had when he was appointed to the DC Circuit, which was just about 1 year before he was named to the Supreme Court. I think it is funny how people now lump Thomas and Scalia together when their backgrounds and contributions to conservative legal thought before they came to the Supreme Court are completely different.

I think you have done less of a job of supporting the argument that Harriet Miers will advance the cause of judicial restraint. I suspect that Bush knows she is strongly pro-life and will vote to overturn Roe v. Wade, but beyond that I have no confidence that she will be an originalist.

In particular, given Bush's reported enthusiasm for Alberto Gonzales, it is hard to come to the conclusion that, outside of Roe v. Wade and GWOT, Bush really cares that much about the various conservative/originalist issues. He certainly doesn't seem to care about affirmative action, restrictions of political speech, or eminent domain. As such, his endorsement of her doesn't do much for me.

Finally, although I agree that Robert Bork is a bit of a scold and a sourpuss, you are simply mistaken in your view that he had no impact on the law. He had perhaps more impact on making anti-trust law sensible than any living person. His book Tempting of America is an easily accessible primer on originalism that personally influenced me when I was a young law student.

I think he is simply reflecting the very reasonable disappointment in conservatives that Bush is nominating judges like it is 1987 and Democrats have 52 votes on the Senate. If there is any time to have someone up there who can give a persuasive defense of the Scalia/Thomas position (for lack of a more precise term), now is the time. Instead, we get Harriet Miers and advance notice from Hugh Hewitt (who I normally worship) that Alberto Gonzales will be the next nominee.

You have to admit that is a little disappointing to those of us who have waited for what seems like 100 years to have a conservative president and a comfortable majority in the Senate so that we could get the likes of a Luttig, Rogers-Brown, or McConnell on the Court.

Will that ever happen now? I suppose if Scalia retires.

(28) jprimmer made the following comment | Oct 8, 2005 8:46:54 PM | Permalink

Your willingness to read comments and respond places you in an even higher category. I nominate you for blogger of the year. Now please take time to have dinner.

(29) KMart made the following comment | Oct 8, 2005 9:02:38 PM | Permalink

In addition to the perception of arrogance that Mr Bork gave at his confirmation hearings, I have always believed that part of the animosity directed towards him was his role in the firing of Archibald Cox during Watergate in which Mr Bork carried out the request from Pres Nixon to fire Cox after the Attorney General and Assistant Attorney General resigned in protest over the request to fire Cox. To some, it was payback to Mr Bork for that action. Of course, his manner did not help nor his beliefs.

(30) Ernest Brown made the following comment | Oct 8, 2005 9:31:44 PM | Permalink

Mitch,


"You make some very good points, and while I was like many, surprised at the pick, I have only one question for her, one Roberts didn't address, and that is this: Does the 2nd Amendment guarantee an individual right to keep and bear arms? If so, then, by all means confirm her. If not or if she is wobbly on it (reasonable regulations kind of person), then may she go down in flames."

The one thing about Miers that is known to be reliably "conservative" is her open support of the Second Amendment, both in her legal opinions and personally.

(31) Beldar made the following comment | Oct 8, 2005 10:19:44 PM | Permalink

TommyK, thanks for your comments. I agree that Bork had considerable influence on law students, on legal conservatives, and on the discussions of law in many places. His specific influence on Supreme Court precedent has been limited to a few citations, though, when he had the potential to write twenty years' worth of majority, or at least dissenting, opinions. And KMart, you're undoubtedly right about resentment over Bork's role in the Saturday Night Massacre.

Palpatine, you asked

If it was determined Miers was pro-affirmative action (and I think being for the policy necessarily implies you believe it's constitutional), would you still support her? What if she really thinks Warren Burger is one of her favorite justices? That doesn't bug you either?"

I have no single issue that is a deal-breaker. There is no Justice with whom I've agreed 100 percent of the time.

My answer on affirmative action is complex, for which I apologize in advance. I am and shall always be of the Harlan dissent in Plessy colorblind Constitution school, and I was very, very disappointed in Justice O'Connor's opinion in Grutter. (I think she knowingly sacrificed her principles in exchange for what she thought was a promise of a 25-year "sunset law" agreement on racial preferences; it was the sort of politically expedient compromise that a politician might make and that a Justice should resist, and I think she got snookered because those to her Left on the Court have no intention of ever keeping that "deal.") But having said all that: I still recognize that our society has not comprehensively rooted out discrimination, and that persistent effects of government-approved discrimination may persist. When done for genuinely remedial purposes and strictly limited to that, I believe affirmative action was constitutional. I'm extremely skeptical as to whether, at least with respect to discrimination based on race, religion, or sex, a persuasive case can be made that further such remedies are justified, i.e., that their remaining benefits outweigh the very pernicious effects of governments using discrimination to remedy discrimination. I can't rule that out categorically, though; nor would I fault someone in Ms. Miers' position if her weighing of that judgment on close calls came out differently than mine. I have absolutely no doubt that she has faced, and overcome, very formidable sex discrimination over her career, especially during law school and her first ten years of practice. But there was no argument that the University of Michigan Law School's racial preferences were remedial; so I'd be very disappointed were a Justice Miers to duplicate Justice O'Connor's vote on that case.

The "Warren Burger" comment troubles me not at all. Chief Justice Burger won't be remembered as a great Justice or a great Chief Justice, but there have certainly been many worse. My recollection is that he was a strong ABA supporter, during the time when it was still confined to its traditional role as an apolitical professional and public service organization, and as I've explained at length elsewhere, I don't fault Ms. Miers for fighting to return the ABA to that status or for wishing there to be an effective apolitical national bar association. She'll explain what she meant by that remark in more detail in the confirmation hearings, I'm sure. But reading that casual and vague remark in a courtesy call to a senator as, for example, a prediction on how she'll vote the next time Roe is reconsidered — that's quite a stretch.

(32) Weihsung made the following comment | Oct 8, 2005 10:37:43 PM | Permalink

If her ABA association should count against her, why should anyone read George Will, who writes for WaPo?

(33) Senator Palpatine made the following comment | Oct 8, 2005 10:44:28 PM | Permalink

"I have no single issue that is a deal-breaker. There is no Justice with whom I've agreed 100 percent of the time."

If she believes Roe is the correct interpretation of the Constitution, that wouldn't be a deal-breaker? You're kidding, right? That wouldn't cause you to withdraw support? What would?

Forgive me if I don't understand your eagerness to explain away her prior remarks and positions. If they are reported accurately, there is something very wrong with this candidate who is supposed to be in the mold of Scalia and Thomas. Anybody who took the President at his word has to be at least disappointed.

I trust Bush 43 more than his father, but I can't help but believe he has made a terrible mistake with this nomination. If that can be corrected by the Republican Party rejecting his choice, then so be it. Conservative principles are more important than Bush and his approval rating.

(34) Ironman made the following comment | Oct 8, 2005 10:50:21 PM | Permalink

The "Warren Burger" comment strikes me the WH staff failed to prep her properly, the amateur hour treatment of this is really maddening

(35) gawaine made the following comment | Oct 8, 2005 11:18:18 PM | Permalink

If it helps...You've convinced me. I spent the few days vehemently opposed to the nomination. Most of the sites that I'd seen in support of Miers were mainly just beating drums. Suggestions that it might be appropriate to at least agree on what it meant to be qualified - what the goalposts are - were met with derision and profanity. I'm supposed to believe someone's opinion about someone's ability to judge impartially based on that? Compared to the sites that I read that were against the nomination, which actually laid out the reasons for the opposition, I knew who I would credit.

You've laid out every argument against her that seemed credible, and actually answered them. With a minimum of personal rancor or attacks. Thank you.

It would be really nice if next time, Bush assembled a team of people and let them throw rocks at him in private - a mock trial, if you like - and assembled these as talking points beforehand. That's spilt milk, though.

(36) Ernest Brown made the following comment | Oct 8, 2005 11:22:04 PM | Permalink

Mitch,

Since I don't support Miers, I may have damned her with faint praise.

If your "litmus test" is gun rights, she's said to be the best nominee in decades on that subject, based on her publications.

(37) Rob made the following comment | Oct 9, 2005 12:38:54 AM | Permalink

Any nominee following Roberts is sort of like a singer going on stage after Frank Sinatra in his prime

Its simply a hard act to follow

(38) derebu made the following comment | Oct 9, 2005 1:18:07 AM | Permalink

OK this idea that Bush could have nominated Brown or Luttig or Jones , etc... needs to be nuked right now because it is really impeding a good discussion as long as most of the participants are not caught up on the realities going on here.
Bush is playing to win on this appointment. He is trying to win the war.
You folks really need to go back this week and look up Rush and Mark Levin who were just as disappointed with the pick but by the end of the week became very cognicent of the reality that its the Senate that forced this choice.
Rush said first day of the nomination that Bush most likely was concerned about fighting a major battle with the Senate republicans as his army. Lo and behold Mark Levin in NRO comes out with info that the Senate republicans came to the president before the nomination was made and begged him not to have them go to the mat with them leading the charge so soon after getting Brown and Owens and company to their appeals positions. In other words, Bush would lose the battle and the war if he nominated any of our beloved favorite nomination picks. Not only would the nominee be filibustered but the Senate implied they would not be able to stop it with the RINO 7 dwarves in charge.
So what choice does Bush have but to pick the best conservative he knows for the job that can also glide through the senate? And here both sides of the Senate come in and among the named given is a SHARED candidate that Bush already knows is a conservative. One he knows personally and privately better then any other one submitted. There are not many other individuals Bush could have such a thorough knowledge of that are not already public figures and prime targets. What is appears to be frustrating the WH is that the trojan horse candidate is being torched by its own party because thats not the battle plan that was drawn up earlier - which unbeknownst to most of the soldiers would end up being as effective as Pickets charge in Gettysburg in the RINO run Senate.

(39) Peggy made the following comment | Oct 9, 2005 1:31:22 AM | Permalink

First, I want to thank you, Beldar. You are in these trying times an island of trustworthy, complete information and sanity.

A question for the anti-Miers: Should Bush allow someone else, anyone else, to choose the nominee for him, as his father did (which got us Souter)?

(40) derebu made the following comment | Oct 9, 2005 2:29:44 AM | Permalink

Regarding the yet-again-out-of-context evidence to bomb miers log.
Its widely circulated that Miers admired Warren Burger the most of all justices.

Over at Bench Memos, Kathryn Lopez has a completely different version of the exchange between Leahy and Miers:

"Miers was asked about Justices she admired. She responded that she admired different Justices for different reasons, including Warren — interrupted by Senator Leahy — Burger for his administrative skills.

Reasonable people could ask whether Burger was a great administrator, but the comment is taken out of context by the Washington Post. Miers didn't express admiration for his jurisprudence."

(41) Barbara made the following comment | Oct 9, 2005 3:18:36 AM | Permalink

I, too, came here through a link on Free Republic. Perhaps one of the things which is dogging this nomination is that the way in which many of her admirers (yourself excepted) have been writing about her. Most of them talk about how she was the first woman to do this or that, how hard she works, and then carry on about what a nice person she is and how she shares M&M's and cheerfully serves coffee. That doesn't reassure anyone who wants a sharp legal mind on the court. Her qualifications are not the usual ones, and people who aren't familiar with the Texas legal scene have no real benchmark against which to measure her achievements. Mostly, I think it's unfair (and unhelpful) to rail about the elitists--they raise some legitimate questions, and are told "Trust the President, she's fine for the job, and by the way she teaches Sunday School." There has to more talk about her work as a lawyer--showing not that she works hard, but that she works intelligently.
I'm still unhappy about this nomination, but you are making me think.

(42) Beldar made the following comment | Oct 9, 2005 3:34:38 AM | Permalink

Palpatine asked,

If she believes Roe is the correct interpretation of the Constitution, that wouldn't be a deal-breaker? You're kidding, right? That wouldn't cause you to withdraw support? What would?

The short answer is that abortion rights per se are not, for me, a deal-breaker. The long answer to explain why would require more space and clarity than I'm capable of tonight. I respect those who do have single-issue deal-breakers, but I don't.

But the kind of judicial approach to cases in general, and in particular to constitutional law cases, that led to the majority opinions in Roe, Lawrence v. Texas, and a number of other cases — that would be a deal-breaker for me. That's my big enchilada. That's what makes the Court not just wrong, but illegitimate.

And it's not a question of abortion rights, or gay rights, or any other single issue per se, no matter how important they may be. For me, it's a matter of protecting or pulling down the entire rule of law, and without the rule of law, no other single issue can be dealt with, nor mistakes made on any single issue ever corrected.

I'm much more confident that Ms. Miers (and for that matter, new Chief Justice Roberts) will reject those sorts of approaches through which Justices have overstepped the proper role of the Court than I am as to how they'll end up voting on any single issue. I hope, and have a reasonable basis to believe, that they'll mostly end up dealing with most of those issues in the way I think the Constitution and laws dictate. But no Justice has ever batted 1.000 with me, and I have no expectation that any Justice ever will.

I'm not sure if that distinction will be understandable to anyone, but it's the best I can do at the moment.

(43) Senator Palpatine made the following comment | Oct 9, 2005 5:47:04 AM | Permalink

I respect you for answering the question about Roe. I didn't think you would. Who wants to open that can of worms?

Nobody expects a justice to agree with them 100% of the time, but Roe is THE symbol of judicial activism of the last 50 years, and overturning it rejects that activism. Allowing it to stay on the books lends credence to its underlying activism and to the "one way ratchet" theory. If Roe is allowed to stay on the books, then we are making future Roes more likely when the composition of the Court changes. Why should a liberal majority balk at instituting their activism when they know a conservative court is likely to uphold their illegitmate fiats in the name of stability and stare decisis (or vice versa)?

Both because of Roe's symbolism and the unspeakable injustice which it sanctions, it is a "deal killer" for me and millions of other Americans; Americans that voted for Bush because he promised justices like Thomas and Scalia--justices relatively unafraid of rebuking the most activist decisions of the Court, namely the mother of all activism, Roe v. Wade. It's the gold standard, the best benchmark I can think of on whether one is committed to the rule of law, or the rule of unelected social engineers.

Maybe I expect too much from Bush's nominations, but then maybe he promised too much. Or maybe he just lied.

(44) Dean Cooper made the following comment | Oct 9, 2005 11:46:42 AM | Permalink

Beldar, the last two paragraphs you wrote are simply the best I've read on this. Keep up the great work!

Also, your pointing out that a huge factor in this is that Bush truly *knows* her is huge. If he knew 100 others with similar backgrounds to hers as well as he knows her, then I suppose he might have picked someone else, but of the people he knows well, she stood out -- and by God I want him to *know* who he's picking. I *don't* want any mistakes.

And isn't that the real fear here? Isn't the base just afraid we're going to be stuck with another lame justice who goes moderate to liberal on us?

Well they should know Bush better than that by now. They should know Bush is a man of his word and has the highest regards for the duties of his office and the responsibility he has to this country.

I sincerely think he looked over the people on his short list and for whatever reason, he just couldn't go with any of them. I think he wanted somebody he felt would be better. I think he wanted somebody who was more like him. I think he wanted to pick the best possible candidate he possible could -- for our country -- not for the base or for the party.

And yes, the best candidate for Bush is not only a strict constitutionalist, but also someone with compassion, someone who is humble, someone who is eminently decent, and someone who has a deep faith in Christ -- just like he has.

I thank God for Bush. And I thank God he prayed long and hard on this and found the truly perfect person our country needs at this time on our Supreme Court.

(45) Mark Noonan made the following comment | Oct 9, 2005 4:19:54 PM | Permalink

Beldar I noted your earlier exchange with JPod over at NRO and sent him a sharp little e mail about it - he's being entirely unfair; and your "moving the goalposts" hits is squarely on the head.

On the other hand, I've also started to note critics who are preparing to climb down...one of whom is, indeed, JPod...after a week of carping, they are finally getting ready to await some facts before rendering a final judgement.

(46) bryan made the following comment | Oct 10, 2005 9:20:38 AM | Permalink

W. wanted to defeat the Democrats by maneuver. He has had a steady stream of victories over the last six years, but I guess maneuver victories just don't taste right to conservatives. We don't want Napoleon at Marengo, outflanking our foes. We want Napoleon at Borodino -- straight up the middle and show them that *we* don't care about casualties.

I'm sorry, but Bush's string of "victories" over the last six years are hardly stellar enough that I'd consider it a considerable factor in supporting this nomination. Perhaps you mean his "victory" by never having vetoed a piece of congressional legislation? Or a "victory" by his continued legal troubles over the detainees at guantanamo? or his "victory" in signing into law the McCain/Feingold First Amendment Repeal Campaign Finance Law? Or his "victory" in swelling the federal deficits to enormous levels? Or his "victory" in signing the highway bill? Or his "victory" in the Bolton nomination?

Just exactly what maneuver victories are you talking about? It took 14 senators making themselves kings of the judicial appointments to get his court nominees through.

(47) Charles R. made the following comment | Oct 10, 2005 1:58:38 PM | Permalink

It is hard to imagine that the current set of conservatives, with a new conservative, would vote to overturn Roe immediately.

It is much more likely that they would take cases that erode Roe over time, until the states have had a chance to work out legislatively what they will do in a post-Roe world.

That isn't what we want, but that is kind of what Roberts was saying about jolting the system. "conservative" can mean taking things slowly to minimize disruption.

(48) Jeremy Pierce made the following comment | Oct 13, 2005 11:05:14 AM | Permalink

For the record, there are conflicting reports on what Miers said about Warren Burger. One of them had her saying she admired many justices, including Burger for his administrative skills. We don't know if she listed any other justices or if she spoke as generally as the report indicated.

Also, for the record, Warren Burger wrote less than a year after Roe v. Wade that he regretted his vote in that case. He'd been persuaded by Blackmun, who also really seemed to believe this, that the decision would allow doctors to make exceptions in very rare cases. They didn't expect this to justify abortion on demand, they didn't expect any abortion clinics to open up specifically for that purpose, and they didn't expect doctors to give the ok to abortions for convenience rather than to save the life of the mother. I admire Burger for later admitting that that was the biggest mistake of his life. Blackmun seems to have gone the other direction.

(49) David Blue made the following comment | Oct 13, 2005 11:15:20 PM | Permalink

Beldar: I say "my team," I actually mean "what I thought, apparently wrongly, was a team, and the one I've always thought I was on."

Could you talk about your team?

Specifically, you didn't think Arlen Specter was a part of it. You didn't want him as the chairman of the judiciary committee.

At the time, I thought I understood that. Now I don't.

I thought you wanted the kind of Supreme Court judge that Arlen Specter might sabotage because of his (the judge's) clear, principled conservative paper trail, and you didn't want the kind of "cat in a bag", doubtful or possibly liberal judges Arlen Specter might more easily support, because the history of such appointments is very bad.

If Harriet Miers is the kind of Supreme Court judge you want, what was the problem with Arlen Specter?

He seems very willing to support an elderly (in my opinion too elderly) candidate with qualifications that not everybody finds convincing and with no clear philosophy of any kind. It was always a reasonable bet that Arlen Specter would work to get apparently lame picks up, while not proving a good partner in elevating strong choices that would need help to rise despite their having taken clear positions on the record. That was what I thought the issue was. No?

(50) David Blue made the following comment | Oct 13, 2005 11:23:27 PM | Permalink

PS: Just to make this clear: I'm not trying to make some kind of sarcastic point. I really don't understand: if Harriet Miers is all you want, what was the trouble with Arlen Specter?

And how are you picking the guys you think belong in good positions on your team? I don't get the criteria. I thought I got it, but you went the opposite way from what I thought you would, so I didn't understand you.

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