BeldarBlog

The "Trust Dubya" argument well made

Melanie Kirkpatrick, editorial page editor of the Wall Street Journal, says: "Count me out [of the conservative revolt against Harriet Miers] — at least for now." And she says why, in an argument that isn't new or conclusive, but that has rarely been as eloquently made in such a prestigious publication. To those who insist that this isn't dispositive, I again agree — but I say again: It's not just nothin'.

Beldar on JPod on Merritt on Miers

JPod links a post by liberal blogger Jeralyn Merritt over on TalkLeft as another argument that even faint praise from the Left is more reason for the Right to condemn Harriet Miers. Here's a paragraph he didn't quite quote in full, though (boldface mine):

The main thing to keep in mind are the alternatives. From a legal standpoint, we lucked out with both Roberts and Harriet Miers. If she were to withdraw and Bush were then to repay the radical right what they think he owes them, we [on the Left] will be far worse off. We didn't get Wilkerson or Luttig from the 4th Circuit, Rogers Brown, Edith Jones, Priscilla Owen or Alberto Gonzales. But we may, if Harriet is not confirmed.

Now, I'm pretty sure that notwithstanding his disdain for Ms. Miers, JPod would rather see her as the nominee than AGAG. Not even JPod (whose sense of humor I greatly admire) could bring himself to argue from this — "Lo! Behold! Miers must be even to the left of Gonzales, for the Left has said it, and it must therefore be true!"

In fact, Ms. Merritt's post is pretty hard to argue with, from the perspective of someone on the political Left. And she points out one possibility, solidly grounded in both the Constitution and very recent historical precedent, that I don't recall seeing anyone at NRO address yet: If this nomination is defeated, stubborn ol' Dubya may recess-appoint Ms. Miers and wait for the 2006 re-roll of the Senate, then re-nominate her in 2007 and point to her intervening judicial experience and track record from the bench as (new) qualifications. Now, I know Laura tells him to try to control that smirk. But the man has a sense of humor, and he just might think that was pretty funny.

"A" for intentions, "B-" for follow-through

In non-Miers news: Only a lawyer trying to be reader-friendly — but not quite making it — would write a lede like this one:

A federal trial court in Chicago has ruled recently that the ancient legal doctrine of trespass to chattels (meaning trespass to personal property) applies to the interference caused to home computers by spyware.

D'oh! How about, instead, something like this:

A federal trial court in Chicago has ruled recently that the ancient legal doctrine of trespass to chattels (meaning "messin' with someone else's stuff") applies to the interference caused to home computers by spyware.

Good ruling, though, and otherwise a very good news article. Ya hear that, GlaxoSmithKline? (Hat-tip InstaPundit.)

Fisking NRO's latest anti-Miers manifesto

I present — with ample but goodnatured snark, and without much further ado — a front-to-back fisking of the latest position statement of the editors of the esteemed National Review Online, entitled "Start Over."

That's very good advice — and I strongly suggest that the NRO editors take it immediately! (Their editorial text is in black, my interlineated comments are blue; I've dispensed with my usual block-quote formatting due to its length.)

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When President Bush nominated Harriet Miers to the Supreme Court, we called it a missed opportunity. The ensuing debate has confirmed that judgment. One would, of course, have to venture outside the confines of NRO to find both sides of such a debate, and neither can one find much inside NRO to suggest that its editors' and most of its contributors' minds were ever receptive to contrary evidence or argument. For all its fury, a consensus was reached early on that point. Indeed, inside NRO, a furious consensus was reached within approximately thirty minutes after the pick was announced, by which time NRO had already begun spreading vicious misinformation about Ms. Miers' law school and career records and her law firm's reputation (for which they've since properly apologized; but first impressions are what they are.) Leaving aside the president and his employees, even Miers’s fiercest defenders allow that she was not their top pick — or even their tenth. Leave aside too that the Constitution gives the privilege and duty of the pick to the President, and that not even Ms. Miers' fiercest defenders have his decade-long first-hand experience as her client.

There is very little evidence that Harriet Miers is a judicial conservative since (like about half of the Justices ever nominated) she has not previously been a judge, but only helped this Administration pick and vet them, and there are some warnings that she is not if you count hysteria from NRO over the assurances of the President. Miers is said rarely to have raised her voice in the Bush administration’s internal policy debates, but it is known that she was a strong defender of racial preferences when they were being challenged before the Supreme Court. Of course, the passive voice here is useful to conceal the fact that anyone who actually had full access to the Administration's internal debates on what position to take in the Grutter case has a continuing fiduciary obligation to the President to maintain the confidentiality of those privileged discussions. But by all means, despite the lack of on-the-record and for-attribution details, let's trust an oath-breaker who him/herself can't be trusted to keep client confidences, and on the basis of those leaks condemn Ms. Miers, who certainly can. In the end, her influence helped sway the Bush administration to file a brief defending those preferences, which, in turn, helped sway the Court to uphold them. The amicus brief in question, of course, bore not Ms. Miers' name, but that of left-wing radical Solicitor General Ted Olsen. It was widely speculated at the time to reflect a political compromise designed to ensure the President's 2004 reelection by opposing outright quotas but not race-neutral\^*/ "plus factors." From this murky political decision, NRO is ready to draw conclusive, iron-clad inferences as to how Ms. Miers, with the protection of a lifetime appointment, might rule as a judge on purely legal issues. But the filing of this brief is of course ultimately a criticism, and I would agree a fair one, of the President, to whom the Administration's position must ultimately be attributed (and who was indeed reelected, thus allowing us to argue over President Bush's nomination of Harriet Miers instead of President Kerry's nomination of Larry Tribe).

Miers’s own career as a lawyer shows a strong tendency to identify with local elites and establishments, such as the time when she took a pro bono case for a single mother against the Department of Health & Human Services all the way to the Supreme Court, to go along with prevailing ideas, like the idea that women couldn't possibly become lawyers, partners, managing partners, state bar presidents, Counsel to the POTUS, etc., and to avoid doing anything that might cause unpleasantness or rock the boat, like risking her own career and the future of her law firm on a merger with a comparably sized cross-state rival. These are useful personality traits, but they are not the traits of a Scalia or a Thomas — the kind of justice this president led conservatives to expect. (Italian- and African-Americans being famous for not challenging "prevailing ideas" and stereotypes either, I suppose.)

Miers’s record on the Dallas City Council has been described as that of someone who was neither liberal nor conservative — not that open-mindedness in an elected municipal position might be a good indicator of a judicial temperament. She rose at the American Bar Association, an organization deeply institutionally hostile to conservatives, whose abandonment of its traditional apolitical service role she bitterly fought in attempting to overturn the ABA's strident pro-Roe position. At the White House she showed herself intensely protective of the ABA, opposing efforts to end its privileged but historically useful role vetting judges — a privilege that the politicized (see above) ABA had used to promote liberal judges and downgrade conservatives ones and that it has been able to continue in large measure because other conservative activists, having less courage than her, fled the institution and left it to liberals. She donated money to the Al Gore campaign, Gore then being a pro-life candidate whose Texas campaign chairman was Rick Perry, Dubya's successor as (by then a Republican) Governor, when her colleagues asked her to, and helped establish an endowed lecture series at Southern Methodist University that brought feminist icons like Gloria Steinem and Susan Faludi to campus, which of course means she agreed with every word those speakers said, whether she picked them or not. She made a point of refusing any affiliation with the Federalist Society while nevertheless appearing as a speaker at its functions and working hand-in-hand with FedSoc Exec-VP Leonard Leo, who became one of her nomination's earliest and most vocal supporters based on his work with her to change the ABA's pro-abortion-on-demand position (see above).

Miers’s supporters argue that her conservatism is reflected in the judicial picking she allegedly did for President Bush. Most of this work was, however, done before she became counsel. Never mind jabbing the Senate Dems in the eye by re-nominating all the circuit judges they'd filibustered — rather dramatically upping the stakes through something more provocative than anything the Administration had done before, 'cause she flees from controversy (see below). And then there's that Roberts fellow. They say that she is pro-life. (Her campaign to get the ABA to stay neutral on abortion lends some credence to that avowal (duh! ya think?), and qualifies, but does not erase, the impression that she flees controversy. Fleeing from controversy being of course the very hallmark of successful courtroom lawyers; I understand that's exactly why Bill Gates' company chose her for a massive class action lawsuit in a hostile forum.) They say that she has a strong evangelical faith. But neither being pro-life or an evangelical is a reliable guide to what kind of jurisprudence she would produce, even on Roe, let alone on other issues. Nothing short of electrodes running from the next Associate Justice's knickers to a car battery at NRO's offices will satisfy these guys. Indeed, the fact that her supporters have had to resort to such weak defenses — and, worse, to pleasant generalities about her kindness to her colleagues and name-calling about her critics’ alleged sexism — is perhaps the most distressing evidence that no stronger arguments are available on behalf of this nomination. Cough-cough-CHOKE — but see 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and counting; but see also this guy, passim, every day during the past two weeks.

We are left with only stray clues to Miers’s value system. Unlike John Roberts, or for that matter Ruth Bader Ginsburg, Stephen Breyer, or Clarence Thomas, Miers comes to the highest Court in the land as practically unknown quality, a gamble for incredibly high stakes. (Unknown and a gamble unless, of course, you're the President, and she's been your lawyer for ten years through thick and thin — in which case you know her better than any President has ever known any SCOTUS nominee in history. In which case you might think she's the right pick precisely because the stakes are so high, and you really don't want to gamble.)

Then there is the related issue of qualification. She has had real accomplishments. One sentence. She does thirty-five years of service to her family, her church, her firm, her profession, the people and Governor of Texas, the people and the President of the United States, and for that thirty-five years, NRO can spare her one sentence, five words, as part of an unrelentingly hostile editorial. And here comes the "but": But it speaks volumes that the president cited her service on a lottery commission as a reason to put her on the Supreme Court. Yeah, let's make fun of her for cleaning up, at the request of the then-Governor, an apparently corrupt public agency upon which Texas public school finance was dependent to the tune of more than $7 billion. Cleaned house in Texas, brought Dubya his coffee at the White House! Bingo, hee-hee! Some of the president’s supporters have argued that excellence does not matter in a Supreme Court nominee — that really any one of 50,000 lawyers could adequately do the job. Link, please? Or are you really suggesting that there are 50,000 lawyers who have qualifications comparable to being, say, Counsel to the POTUS? I certainly wouldn't. This is unconvincing on its face. But if a refutation is needed — and since this is a classic straw man argument, let's pretend a refutation is necessary! — consider the career of Harry Blackmun. Here was a judge  — one with the circuit court record which NRO complains that Harriet Miers lacks — described even by his admiring biographer Linda Greenhouse as intellectually insecure. Like Miers, he too was devoted to local establishments: the Mayo clinic in his case rather than the ABA. Sure he was a loyal Republican; but almost as soon as he arrived on the Court, he was transformed. And Richard Nixon did not know him from Adam; could that maybe have been the problem?

So, we have reason to fear, will be the case with Miers. And even if she does not become a Blackmun, her record strongly suggests she will be an O’Connor — a split-the-difference judge. This would be the same record you've just said she doesn't have one of, right? As one of her former colleagues has said of her, Miers’s office was the "place where the action stopped and the hand-wringing began." We all know that action and not carefulness is what those SCOTUS superheroes are all about! Ahh-nuld for SCOTUS! If she follows that course, we will be left with a Court that retains immense and inappropriate lawmaking power but refuses to make clear laws. Yikes! Major editing error! "Make ... laws"?!? Surely you mean "write clear opinions," NROniks! Not that a practicing lawyer and experienced business manager might bring anything useful to the existing eggheads distinguished members of the Court. The rule of law, like the career of every successful courtroom lawyer, is based on the making of arguments and the giving of reasons, not on sentiment or group loyalty — which is the basis on which Miers’s defenders want us to support her. $100 to the first NRO editor who finds that argument in those words coming from me or Hewitt — or for that matter, from the President. Those sound instead like arguments that could be characterized as justifications for "cronyism"  — an ugly, disparaging, mocking term that this editorial, to its credit (but unlike much other NRO punditry of late), manages to avoid.

"The president trusts her," is not a good enough argument. But it's not nothing, either. (See above, re Blackmun; see also Kennedy, Souter, et al.) The president has trusted a lot of people, some of whom have worked out fine, others less so. To which category will Harriet Miers belong? Perhaps the same category as all his other judicial nominees (except the Clinton leftovers), d'ya think? No President can bat 1.000 on every nominee to every single office; but this one has a pretty fabulous record so far on his judicial appointments, through and including our new Chief Justice. It is possible that the confirmation hearings will shed light on that question. Not that NRO will wait for those before making up its collective institutional mind, circulating an online petition, etc. But we doubt it, given the ease with which nominees can sidestep searching questions. No, no, no — searching questions are fine, but it takes a fairly sharp senator to frame one. What's not okay is nominees giving precommitments on how they'll rule, apparently in exchange for confirmation votes. Y'all know that; you're just being purposefully dull here, I think. How many of you didn't feel better about Chief Justice Roberts after his hearings?

What, then, should be done? Some conservatives have called on the president to withdraw her nomination, and a few have urged senators to vote against her. And some have gotten their knickers so twisted that even Bill Clinton couldn't untwist 'em. If the president withdrew the nomination, we believe that he would seek a replacement who could unite conservatives — as he no doubt expected Miers to unite them  — and then prompt a filibuster that, due to the Republican half of the Gang of Fourteen's well-meaning idiocy, couldn't be broken. But that nominee would be tarnished, perhaps fatally, by the suspicion that the president was forced to pander to the Right. The president, moreover, surely does not want to risk looking less than strong and steadfast. "Strong and steadfast" would, of course, be defending and sticking with an able nominee against panic and hysteria; much better he should look like he picked a sissy who runs from trouble. The prudent course is for Miers to withdraw her own nomination in the interests of the president she loyally serves. Cue Dana Carvey's Poppy imitation: "Nuh-uh, wouldn't be pru-dent!" Loyal service does not mean capitulating despite the wishes of the President she's served for ten years. The president could then start over. Ramesh is muttering, "Be still my heart!" Ponnuru for SCOTUS, it's a groundswell! Both he and his party would probably benefit from having the clear fight over the direction of the courts that only a new nominee would allow. And after that clear fight, when the next nominee is shot down in flames after a successful Dem filibuster, we can all toast marshmallows together! But for that to happen, some conservative senators are going to have to send a diplomatic message to the White House. Another editing/logic error, guys — you just said a few lines up that it's supposed to be Ms. Miers who falls on her sword, not Dubya and the senators who stab her. Ya know, I'll bet Harriet Miers would have caught these errors.

And conservatives and the White House will have to restore their working relationship. Some hard and ill-considered words (amen) have been said on both sides (amen), but it is time (amen!) for all involved (Preach it, brothers and sisters! Amen!) to follow their interests (@&$!#@*#@%&^!!!), instead of their resentments. Guys, it's not all about you, or your interests, nor me or mine. It's about the Court and the Nation. Let's work together, patiently and without spite, being solicitous of one another's feelings and opinions, toward that end. Okay?

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\^*/UPDATE (Sat Oct 15 @ 1:00am): I added the word "race-neutral" to my fisk above after re-reading the actual amicus brief, which effort I strongly, strongly recommend to anyone who is ready to condemn Harriet Miers' nomination based on doubts about her position on affirmative action. (See also the contemporaneous White House statement about the brief.) I'd forgotten that the Administration's amicus brief in fact asked the Supreme Court to strike down the University of Michigan Law School's program on grounds that it (like the undergraduate program striken down in the companion Gratz case) was really a disguised racial quota. What drew fire from serious conservatives at the time was the Administration's failure to condemn outright Justice Powell's separate opinion in Bakke with its "race as a plus-factor" analysis — i.e., to go all the way to a true color-blind Constitution that takes the Fourteenth Amendment to mean exactly what it says — and Bob Novak and others attributed that "failure" at the time not to Ms. Miers, but to then-White House Counsel Alberto Gonzales. But this amicus brief was still far to the right of where Justice O'Connor's opinion ultimately came out; and indeed, even to a committed considervative, it is actually defensible on tactical grounds (a la the Thurgood Marshall "nibble strategy" used effectively in Sweatt v. Painter, for instance) in that it would have overturned the Michigan Law program without asking the Court to directly overrule any of its prior precedents. Before you use it to argue that Ms. Miers supports racial preferences, read the brief!

Miers, lesser-known aspects of the Constitution, and senatorial gotchas

Hoover Institution senior fellow and NRO contributor Peter Robinson today joined the off-key chorus of those singing shrill warnings about how SCOTUS nominee Harriet Miers is likely to be embarrassed in her confirmation hearings by noted constitutional law scholars like Slow Joe Biden (76th out of 85 in his class at Syracuse Law):

Item: On Brit Hume's show last night, Fred Barnes announced that Miers might have trouble during her hearings, but only if senators set out to embarrass her by asking her about "the third amendment," "the seventh amendment," and other, lesser-known aspects of the Constitution. Think about that for a moment. I mean, really. Just think about it. The third and seventh amendment are parts of the Bill of Rights. Asking Ms. Miers to demonstrate at least rudimentary knowledge of the Bill of Rights would represent an unfair and hostile action? This is what the Miers nomination is doing to us.

In response, NRO's Jonah ("Blessed as a Peacemaker") Goldberg — also the author of a very funny yet reflective column today that concludes "Take plenty of fluids, wait for the hearings, this fever will pass" — offers up this sly bon mot as a comment on just how important some of those "lesser-known amendments" really are:

I am a third amendment enthusiast. I've simply been waiting (and waiting, and waiting) to be single issue voter on the subject.

("If it would help, I could put on a uniform?" — The Couch)

And Mr. Robinson's amigo Hugh Hewitt takes him fondly but firmly to task:

As for the Third Amendment, or the Seventh, or the Ninth, or the dormant commerce clause or the damned 11th Amendment which is almost impossible to teach — the questions being compiled by the Cornerites have almost nothing to do with judging! Do they think John Roberts was prepared to discuss the quartering of troops in private homes?

Alas, this was a rare misstep by Brother Hugh, for our new Chief Justice did indeed discuss the Third Amendment in his confirmation hearings, and even brought up the subject himself:

SPECTER: ... Do you believe today that the right to privacy does exist in the Constitution?

ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways.

It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected.

It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise.

It protects privacy in matters of conscience.

It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops.

I remembered this exchange because it struck me at the time how this answer sounded, even reads, like how an opinion refusing to further extend Griswold v. Connecticut might begin. (Thus far; no farther.) But note, however, that our new Chief Justice didn't go into a discussion of Third Amendment precedents. There just aren't many.

John Roberts' grasp and sheer memory of Supreme Court precedent, and by no means limited to con law cases, is indeed almost superhuman. But he's never tried a case, never even taken a deposition. Does Mr. Robinson not recognize that there are vast areas of pretrial and trial procedure on which, unless they happen to have come up in one of his own appellate cases, our new Chief Justice might also have been stumped? Does Mr. Robinson think the President, the Senators, and the public are entirely incapable of appreciating different kinds of smarts?

But indeed, even when it comes to "lesser-known aspects" of the Constitution, Ms. Miers has something in her practice background that even Chief Justice Roberts can't claim — something that prompted me to fire off an email to Mr. Robinson that I reprint here (with slight alterations and with apologies to my regular readers who will recognize some of it as having been lifted in part from one of my earlier posts):

You're aware, I assume, that Harriet Miers — who you're busy suggesting has never read or retained the basic contents of the Constitution and its small handful of Amendments — litigated Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex), aff'd mem., 244 F.3d 134 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001), which is one of the only reported cases in the history of the Republic on the Twelfth Amendment to the United States Constitution.

You personally were intimately familiar with the Twelfth Amendment a month ago, were you not? Oh, of course you were! Among the legal elites here in Texas, we speak of little else, so I'm sure the same must be true of Cornerites and the good fellows of the Hoover Institution.

The stakes were merely whether both George W. Bush and Richard B. Cheney could receive votes from the Texas electors in the 2000 election. In other words, if Ms. Miers had lost, the Supreme Court's decision in Bush v. Gore would have become moot.

Ms. Miers' opposition in Jones v. Bush was merely Sanford Levinson (BA-Duke, PhD-Harvard, JD-Stanford), the "W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law" at the University of Texas School of Law, author of over 200 articles in professional and more popular journals, co-author of a leading constitutional law casebook, who's also been a visiting law prof at Harvard, Yale, NYU, and BU. This would be the same Sandy Levinson quoted in today's WaPo as saying of Harriet Miers (emphasis mine): "The only thing to infer from this [case] is that she's a good lawyer." Because how'd she do? As Prof. Levinson's gracious comment suggests, she did pretty well: She beat Prof. Levinson like a drum, not once, but three times on this case — in federal district court, then in the Fifth Circuit, then on the certiorari petition in the U.S. Supreme Court.

This, by the way, is only one of three of Ms. Miers' reported appellate cases that included constitutional law issues. But I don't know how you guys have gotten the notion that "constitutional law" is tougher than brain surgery and rocket science combined. I guarantee you that there are aspects of tax law and securities law and contract law and tort law and a dozen other legal specialties that are every bit as difficult as constitutional law. The cases on those subjects that top courtroom lawyers regularly argue, and that federal courts (including the Supreme Court) regularly decide (with more frequency than they address pure con-law subjects), are every bit as intellectually challenging.

Moreover, any nominee could be tripped up by some senator who's pulled one book at random from among the 530-plus volumes of United States Reports, flipped it open to a random page, and asked: "What about the Supreme Court's holding in 1930 in the case of Hopkins v. Bacon? Do you agree or disagree with that case's analysis of the proper treatment under the federal income tax code of a spouse's interest in income received by the community estate in Texas, as opposed to California or Arizona?" I suspect that John Roberts would no more have known how to answer that question than Harriet Miers would have. Senators who are simply trying to play "gotcha" will be recognized as doing that — and it is they who will be mocked, not Ms. Miers. There is a reason that lawyers — including lawyers who are Justices on the Supreme Court — have online and hard-copy law libraries (with elaborate systems of indices and digests and cross-referencing): It's because we look stuff up when we need it, because there's too much of it for any of us to carry around in our heads.

Ms. Miers' own constitutional law professor still remembers her — after almost 40 years! — and has been quoted as saying she was an "excellent student" who was "very well prepared." Professors, colleagues, opponents, judges, and clients (including one nicknamed "Dubya") all seem to believe that she has the intellectual chops. It seems to be only in the minds of her nomination's opponents that she's chopped liver.

That WaPo article, although inaptly headlined, is a nice piece of reporting and well worth reading for anyone interested in Ms. Miers' record as a practicing lawyer. Also worth a look for its original reporting is this AP article. (It does contain one obvious mistake, perhaps introduced in editing, when it says "[i]n private practice with [Locke Purnell] and its successors, she was the counsel of record for only about 20 cases." That's about right for reported cases, which are only those producing a formal written opinion from the judge that he/she has in turn designated for widespread publication, which tends to happen mostly with appellate decisions and a very few federal trial court decisions. But I'd bet a randomly chosen body part that she's been "counsel of record" — that is, among lawyers who've entered a formal appearance with the trial or appellate court — in hundreds of cases over her career.) The AP article reveals, for example, that what I'd previously thought was one of Ms. Miers' rare losses — the Microsoft class action case — actually turned into a win: After losing an interlocutory appeal, Ms. Miers nevertheless persuaded the trial judge who'd earlier ruled against Microsoft to reverse herself and de-certify the class. Do you have any idea how hard it is, in general, to persuade a trial judge who's already been affirmed on appeal on a particular point to reverse herself?

And note in particular in both articles how many of Ms. Miers' defeated opponents from the courtroom, in addition to Prof. Levinson, also had complimentary things to say about her. I hope that the critics of Ms. Miers' nomination from the political Right will be equally as gracious after she becomes Justice Miers, but I'm certain she will be gracious to and about them.

Professor Kingsfield and the Miers confirmation hearings

I have this impression that those predicting that Harriet Miers will absolutely, positively crash and burn during her Senate confirmation hearings — under brutal questioning from the likes of Slow Joe Biden or any other member of the Judiciary Committee — themselves have in mind that scene in The Paper Chase in which Prof. Kingsfield (fabulously played by John Houseman) said, "Mistah Haaaaaht! Here is a dime! Go and telephone your mah-ther, and tell her that there is ... substantial ... doubt-(tah!) ... about your eh-vahh! ... becoming! ... a laaaah-yah!"

I don't think that will happen. For one thing, not one of the senators likely to be firing off hostile questions to Ms. Miers has a tenth of the dignity and aplomb that John Houseman had as the fictional (but entirely realistic) Professor Kingsfield.

But if it happens, I hope that Ms. Miers will have the panache to say something like, "You ... are a SON OF A BITCH, Sen. Schumer!"

All America will agree, but I seriously doubt that Sen. Schumer will have the presence of mind or the grace to say in response: "Ms. Miers! That is the most ... intelligent ... thing you've said all day!"

But no. Ms. Miers will almost certainly be far more restrained, and far less cinematic. Still, if she has even a bit of a flair for drama, she might come up with something equally as good, or better, as the Timothy Bottoms character, James T. Hart, shot back at Professor Kingsfield. After all, if she chooses to serve up charges against the opposing senators along the lines that Mr. Hart did against Professor Kingsfield — the truth will be on her side.

National Review abandons any pretense of neutrality, open-mindedness on Miers nomination

One can't plausibly claim to be surprised when an online or on-dead-trees magazine specializing in political opinions and punditry takes a definitive position and advocates it. So I don't suppose I'm surprised to see the venerable National Review present an online "Petition for the Withdrawal of the Nomination of Harriet Miers to the U.S. Supreme Court."

But here's my point, in one sentence (followed of course by many, many others, as is my wont): I don't condemn NR/NRO for putting up this petition, but I genuinely lament what it says about the nature of their further participation in the debate.

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This isn't an informal internet straw poll of the sort that InstaPundit and Prof. Bainbridge have posted. This isn't a method for NR and NRO readers to present their positions — pro, con, or neutral — to the Administration. Rather, this petition very directly requires its signers to declare, as their bases for the demanded withdrawal of her nomination, that Harriet Miers is NOT —

• "a person of clear, consistent, and unashamed conservative judicial philosophy";

• "a person of unquestioned personal and political independence";

• "someone who has demonstrated a deep engagement in the constitutional issues that regularly come before the Supreme Court — and an appreciation of the originalist perspective on those issues"; nor

• "a person of the highest standard of intellectual and legal excellence."

(The words "hack," "dullard," "corrupt," "crony," and "squish" don't appear, but they do shout rather loudly from the subtext, at least as I interpret it.)

To submit one's constructive (i.e., online) signature, one must provide a valid email address, and one's first name, middle initial, and last name. One must also "acknowledge" that "the information submitted here is entirely accurate to the best of [the signer's] knowledge without any withholding or embellishment of the truth" — which I interpret to refer to the "information" purportedly about Ms. Miers, since it would be rather hard to "[embellish] the truth" of one's email address or name. I don't know why they don't just go ahead and ask you to swear, on penalty of perjury, that you really, really believe this is a horrible nomination and nominee.

You have a binary choice:  Either endorse each and every one of this petition's propositions, collectively and without reservation — or close your browser window on it. (I chose the latter.)

The petition is stated to be the handiwork of NR contributing editor, NRO diarist/blogger, newspaper columnist, and former White House speechwriter David Frum, with input from others. But Mr. Frum's diary post directing readers to the petition speaks repeatedly of "we," with no subset short of the entirety of National Review being indicated. One grants to "National Review," for example — not Mr. Frum personally, nor any special- and limited-purpose group —  the "right to use the information submitted here" to "verify [each signer's] identity." NRO editor (and NR associate editor) Kathryn Jean Lopez has linked the petition from their "Bench Memos" blog, under the heading "Harriet Miers Petition" and with this brief text entry: "David Frum has one up." She does not suggest, however, that he speaks only for himself, or for less than the entire institution. If this is not intended as an editorial position of both NRO and NR, there is no obvious way to divine any limitation. (Although fairly imputable on these facts to the institution, however, I don't think this petition may fairly be imputed individually to all NR/NRO contributors.)

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Before commenting directly on this petition, I have important caveats that I want to make absolutely clear. That which follows is more than a rote assertion:

Before the Miers nomination, I respected and admired the National Review, both its online and on-dead-trees versions, and its various contributors. I've frequently agreed, and sometimes disagreed very strongly, with their various positions and those taken by the publication as a whole. But I've subscribed, and I've read, and I've linked — all regularly. I will continue to do so. I still respect and admire NR/NRO, my current large disagreement over the Miers nomination notwithstanding. I do not question their patriotism, nor their credentials as conservatives of good will, passion, and intellect. I have no doubt whatsoever that in the future, I will again agree, and sometimes also disagree, with other positions taken by NR/NRO as an institution, and other positions taken individually by various of its contributors. If they'd ever come to Houston (an excellent idea, given that Rich Lowry didn't know until two weeks ago that Houston's the fourth largest city in the country), I'd gladly buy a round of drinks for the whole gang, and two for Mr. Frum. (Sour apple martinis for him, though. (That's a joke, David, I'm smiling as I write it.)) I do not condemn them; I do not call on any subscribers to cancel their subscriptions, nor on anyone to email K-Lo or Frum or anyone else there to express reservations or outrage over the petition.

And I most emphatically am not going to try to start up a counter-petition! I hate public opinion polls; and amateur versions are worse in general than the ones the real whores trained professionals create. My considered and consistent view is that I've already voted on this — in a fashion vastly more solemn and meaningful, albeit indirect — when I cast my votes for President Bush and for Texas' two senators, Kay Bailey Hutchinson and John Cornyn. If I sense any of them waivering, or have any particular input that I think they need and otherwise lack, I know how to reach them.

I also do not hold to the view that anyone outside the Administration has a duty to "shut up and go along with the President" — not pundits, not ex-WH staffers, not the members of the public, and not the Senators who have a constitutional role to provide (or withhold) advice and consent. I am not arguing against debate; I am not arguing against skepticism. From what I know now about the nominee, I believe she ought to be confirmed. But I know there are known unknowns about her, and probably some unknown unknowns too, in the words of my favorite metaphysical Defense Secretary.

Nor do I think it's productive for either side to make threats or to predict dire consequences. I do not, for example, shout, "How dare they!" when the petition warns that "[a]n attempt to push her nomination through the Senate will only split the Republican party, damage the Bush presidency, and cast doubts upon the Court itself." Maybe it will, maybe it won't. I really, really didn't want the people at National Lampoon to kill that dog, either; but I didn't buy that magazine and yet, as as far as I know, the dog survived. Seeing which side can lay a better guilt trip on the other contributes nothing productive to getting an appropriate replacement for Sandra Day O'Connor confirmed, whether that turns out to be Ms. Miers or not. Shaking our spears and rattles at each other and screaming "Terrible consequences! High stakes!" just makes everyone's blood pressure go up to no good purpose. And in fact, my new resolution (as of late today) is that if I think someone's guilty of improvident blood pressure elevating, I'll tell them so by email rather than by blogging, and if they ignore that, then I'll ignore the fact that they've ignored it, and proceed to ignore the attempted guilt-tripping.

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Having said and meant all of that, however:

While I'm unsurprised by this petition, I still deeply regret seeing it. Harriet Miers has yet to give a word of testimony at her confirmation hearing. Her paper trail is still being assembled and combed. Additional facts pertaining to her qualifications are still pouring in — this White House having no more done a complete job of gathering all of those facts, predigesting, and regurgitating them simultaneously with her nomination than it did with John Roberts', or than any White House has ever done with any SCOTUS nomination.

By no means have NRO or NR been the only skeptics or critics of Ms. Miers' nomination. But they were among the first. They were among the most factually inaccurate (a black eye that will take a while to heal, I fear). They have been among the most influential. To varying degrees depending on whom one reads, they continue to be among the most vehement. And now it appears that institutionally, they're in the biggest hurry both to commit themselves, and to get other people on record against this nominee.

Why? Why the incredible hurry? Anyone capable of finding this petition online is certainly capable of finding his or her way to the White House's website, or to his or her senators' websites. Any of their readers who are in a hurry need not wait to have a say through other means.

And why the one-sided slant — a petition that permits only one set of opinions, and those being pre-dialed up to eleven? Surely as seasoned political advocates, they understand that their results would be far more credible if they weren't pre-channeled in only one direction. Let's say they get 50,000 "signers," or 100,000, or 1,000,000. What's the obvious, inevitable response going to be when Mr. Frum carries the boxes of printouts (or the CD-ROM, whatever) over to the the White House to thrust it into Dubya's (or more likely, Andy Card's) face?

"Well [cough-cough], David [cough], it's good to see you again, and this is very interesting — but we had just over 62 million votes in the last election, and 78 Senators voting 'Aye' on the last nominee. So thanks, we'll consider this carefully [cough-cough], for exactly what it's worth. Hey, how's that golf game coming along?"

Yet in the meantime, if you had any doubt whatsoever that Mr. Frum and (we must presume) those among the NR brass who've authorized this petition have any objectivity, or even the barest hint of an open mind left, with respect to this nomination — that's gone now. And that's a genuine shame, because there are a lot of smart folks there whose voices have now been rendered much, much less relevant.

Move over, NARAL, and grab your earplugs, 'cause you've now got some noisy company in that bed. This petition doesn't mean they're bad, or even that they're wrong, it just means they've made up their minds and ... closed 'em.

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UPDATE (Thu Oct 13 @ 9:15am): Yup, Mr. Frum's petition is now linked from The Corner, too. The Institution has taken a stand, for better or worse. "Want to be heard?" asks K-Lo in the title. Oh yeah. Hear me roar (provided I am anti and over the top with it).

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UPDATE (Fri Oct 14 @ 3:30am): K-Lo clarifies:

I've gotten some question re: whether the petition David Frum has created is officially endorsed by NRO. I think it's fair to say a good number of us agree with the principles outlined. It's David's petition though, no official NR/NRO thing. What's the difference, you ask? David, Joe Schmo, Kathryn, whoever, write things on NRO (or in NROdT) all the time which do not represent a corporate position. I'd take the petition in the same spirit. Whether NRO writers want to sign up is up to them.

I'll take this at exactly face value, but I also note that as a disclaimer of institutional commitment it's late, weak, and not very prominent. One would think that if the poll is indeed just "David's petition," it would say that on the petition webpage itself, for instance, simply in the interest of accuracy. As of this moment, the petition web page itself has been slightly modified to delete its original optional pull-down menu field that offered several choices, somewhat oddly worded, to permit signers to indicate if they are lawyers or in related fields. What looks at first glance to be an automated counter, presently reading "2,160 and counting," actually isn't automated but just regular .html text that will need to be manually updated. I'm not sure when it was last edited, and so will withhold comment other than to say that it at least looks to be running behind the response rate on Prof. Reynolds' straw poll — presently almost 14,000 votes, with 54 percent favoring withdrawal and 46 percent opposing it. (Even that response rate is fairly underwhelming, given Prof. Reynolds' typical six-figure daily page-views rate.)

A few readers have taken me to task in the comments to this post for an ostensible double-standard: How dare I fulminate against NR/NRO for advocating a position, when I'm also taking a position? To which I say: First, re-read the first two paragraphs of this post, particularly the first sentence. Second, my blog is a solo effort, and no question of "institutional" endorsement arises. And third and most important, I'm doing my best to keep an open mind myself, despite my biases and my current position (all disclosed as carefully as I can), because I believe there is a lot of relevant information yet to be gathered and distributed, and also because I strongly suspect that some of what's currently floating around is inaccurate or being spun wildly out of context. The point of Mr. Frum's petition, by contrast, is to summarily end the nomination immediately, before the nominee has had any public opportunity to respond; the petition does not seek to push the nomination toward an eventual ultimate rejection, but rather to push it immediately off a cliff. I therefore deny that I'm using a double-standard. But as always, gentle readers, you're entitled to reach the opposite conclusion; and I did provide a link to Mr. Frum's petition in case you'd like to add your voices to his and his NR/NRO allies in urging that Ms. Miers' voice in support of herself and her nomination be prematurely, permanently silenced.

Miers' campaign contributions to Gore and Bentsen

For the primary benefit of my out-of-state readers: Eloquent and politically knowledgeable left-of-center Houston blogger Charles Kuffner, despite being a skeptic of Harriet Miers' nomination to the Supreme Court, absolutely nails those on the right who're all aflutter about Ms. Miers' 1988 contributions, presumably made as a sober, mature woman, to Democrats Al Gore and Lloyd Bentsen (links in original, boldface mine):

Listen to me closely, because I'm just going to say this once: Rick Perry, our beloved-by-the-conservative-base Governor, a man for whom anyone who is anyone in the Republican Party was doing their level best a few months ago to persuade Kay Bailey Hutchison to stay away from [in] next year's gubernatorial primary, was the Texas state chairman of Al Gore's 1988 presidential bid. He was 38 years old at the time (how sober he may have been is a question I am unable to answer adequately). I'll freely admit we know a lot more about what Rick Perry stands for than we do about Ms. Miers, though there's a pretty simple way to resolve that particular conundrum. My point is just that Texas was a very different place in 1988 than it is today. If you don't understand that, you should probably yield to someone who does.

(For extra credit, buy yourself a copy of Fifty Years of the Texas Observer and read about what the liberal wing of the Texas Democratic Party thought of Lloyd Bentsen in 1970, when he successfully ousted progressive hero Ralph Yarborough in the primary.)

Ayup. What he said. And to save you the cost of the Observer, the liberal wing thought Bentsen was a fascist tool of the banking and insurance industries. The broader story it tells over the last fifty years is how conservatives and liberal/progressives, nominally Democrats all, have battled tooth and nail through the decades when Texas was an overwhelmingly one-party (i.e., Democrat-only) state. It is a great story, albeit a politically (and sometimes literally) violent one. Just remember that this is a state in which Lyndon Baines Johnson — who was probably the most wickedly gifted and giftedly wicked natural politician of the Twentieth Century on the national stage — was considered to have only average intra-state political skills for much of his career.

Miers and the Texas Lottery: One riot, one ranger

On NRO's The Corner, John J. Miller posted this today under the heading "Call Her The Gambler" (hyperlinks in original):

Hugh Hewitt has now criticized me twice (at least) for raising a simple question earlier this week: Why aren’t evangelicals more concerned about the fact that Harriet Miers ran the Texas lottery? Memo to HH: Of course I recognize that evangelicals make up a diverse group with varied opinions on the merits and morals of gambling. But a large number of them also oppose it passionately. Earlier this year, Jim Dobson, Chuck Colson, and more than 200 other religious leaders signed an open letter that called gambling a “menace to our national welfare." Well, what’s the Texas lottery if not state-sponsored gambling? (Go here for more evangelical perspectives on lotteries.) Miers’ public record is thin, but the Texas lottery is part of it. Perhaps she disagrees with Dobson and other evangelical leaders on whether governments should be in the gambling business. Perhaps she even took the lottery job, as Hewitt suggests, “with the aim of improving it” (whatever that means). I would certainly like to know more. I just wish Hewitt didn’t consider the question inconvenient.

Of course, this drips with the implication, intended or not, that there's something hypocritical about not only "evangelicals," but also Ms. Miers. But let's give Mr. Miller credit, and presume that he wasn't trying to frame a "when'd ya stop beating your wife" question. (If he was, I hope to show that it didn't work.) I can't speak for Hugh, nor for Ms. Miers, nor for evangelicals — but I think there's an extremely obvious and plausible answer.

Long, familiar story told very short: The creation of the Texas Lottery was indeed controversial — and not just among evangelicals. Of course some of the opposition was based on religious views, but there were also substantial objections that had nothing directly to do with religion or even morality. Ultimately, however, the proponents of the proposed lottery — and especially those who argued that Texans were playing other states' lotteries anyway, enriching those states with revenue streams that ought to be used for noble purposes within Texas — carried the day. For good or for ill, the people spoke through their elected officials, and the Texas Lottery came into being. Some future Texas Legislature may change or abolish it, but since well before George W. Bush took office as Governor of Texas, the Texas Lottery has been a fait accompli.

And while one may argue whether its performance has lived up to expectations, no one can doubt that the Texas Lottery has indeed become an important source of public revenues in this state. According to its website, of every $1.00 received by the Texas Lottery: 58¢ goes back out in prize money, 7¢ goes to lottery administration, and 5¢ goes to the retailers who sell the tickets. That means that 30¢ of every $1.00 goes to the Texas Foundation School Fund:

The Texas Lottery has contributed more than $7 billion to the Foundation School Fund! The Texas Education Agency administers the Fund, which is used for school districts' public education services at the local level.

That $7 billion is the biggest part of the more than $12 billion in revenue the Texas Lottery has generated for Texas since the first lottery ticket was sold in May 1992. Lottery revenues have gone to the Foundation School Fund since September 1, 1997, as directed by the State Legislature. Prior to that date, they were allocated to the General Revenue Fund.

Unclaimed lottery prize funds revert to the State to be appropriated for health care, medical education, and other programs authorized by the state legislature.

Again, to grossly oversimplify: We're still fighting tooth and nail about public school finance issues in Texas, and we have been for decades now. But regardless of whether one approved of the Texas Lottery's creation or approves of its continued operation, and regardless of whether one wishes to support it by buying tickets, the revenue stream from the Texas Lottery — and that revenue stream's importance to Texas governance and in particular to public education in Texas — cannot be ignored by whoever sits in the Governor's Mansion in Austin.

By the time George W. Bush became Governor, serious problems had arisen inside then-still-young Texas Lottery. There were, at a minimum, serious appearances of impropriety and incompetence that neither he nor any other Governor of Texas could ignore. Dubya needed a trouble-shooter, a fix-it person — someone in whom he had boundless confidence as to both her effectiveness and her integrity. In the grand Texas tradition of "one riot, one ranger," he asked Harriet Miers to do that ugly, vital job.

What went through her mind when he asked? I don't know; perhaps we'll learn something of that during her confirmation hearings. But my strong hunch is that her first reaction was intensely negative.

Let's again put religion and morality and ethics completely aside for a moment: The Texas Lottery, and any lottery, is a sucker's play from a purely mathematical standpoint. Lotteries have aptly been called a tax on morons, voluntarily and eagerly assumed by them. Oh yes, courtroom lawyers are gamblers by nature, and we have to be. But to the extent that the gambling metaphor fits our professional activities (and it does fit, reasonably well), we're poker players, friends and neighbors, and we're committed to the notion that by vigorously and creatively representing our clients within the bounds of law and ethics, we can reduce randomness and, perhaps sometimes, beat the odds through skill and preparation. Personally, I've never spent a single thin dime on the Texas Lottery, and I never will.

Nor was taking a position at the head of the Lottery Commission a résumé credential for someone who'd already progressed along Harriet Miers' career path. (Indeed, her critics scoff at it now.) It was, at best, a sidestep, and one fraught with huge risks if she failed — risks that could have ended not just her work at the Lottery, but for all practical purposes her entire professional career.

And finally, if we do make some reasonable assumptions about Ms. Miers' faith and how it might affect her views of the Texas Lottery: Her reflexive shudder upon being asked to take up this particular task may have been long and profound indeed. This will strike you as either corny or self-evident for me to say, but I'm quite sure that she prayed about it. And it wouldn't surprise me if she and Dubya prayed together about it.

But the consistent, dominant theme of Harriet Miers' life has been service: Service to her family, her church, her community, her law firm, her profession, and to her clients (both paying and pro bono). George W. Bush gave her the opportunity for service to the State of Texas and its Governor. Recall that she has shown personal courage, and dedication to principle despite swift countercurrents, when she fought to return the American Bar Association to its original apolitical status as a service organization — even though to do so, she had to risk being identified unfairly (as is now in fact happening) with the modern, politicized ABA's pro-abortion agenda.

The Texas Lottery was going to go forward no matter her answer; the only question was, on a going-forward basis, would it be (and appear to be) competent and clean (at least as much as a state-run lottery can be), or would it be (or appear to be) incompetent and corrupt? So when Dubya asked, what ultimately happened was that Harriet Miers apparently gulped down any reservations she may have had, and then she saluted. (Not a mindless robotic salute; a knowing and dutiful salute.) She took the job, she rolled up her sleeves, she started digging, she started applying her fact-gathering and management skills, and then she started taking names and kicking butt. (The name-taking was quite literal; the butt-kicking was metaphorical, but nevertheless no doubt quite impressive to those who found themselves suddenly and dramatically unemployed.)

Some pundits are muttering ominously and self-importantly about imminent "surprises" having to do with Ms. Miers' involvement with the Texas Lottery which they say are about to break into the public consciousness. Well, okay; maybe. Color me very skeptical, because anything that could be used to discredit Ms. Miers could also have been used to discredit Dubya, and there's been no shortage of people down here in Texas looking for ways to discredit Dubya for the last decade or more. (Think Ben Barnes and Mary Mapes and you'll only have scratched the surface. The whole Ben Barnes/TANG story began in civil litigation over Texas Lottery problems. One wonders who may be out scouting for late 1990s-era word processing software and printers even as you read this.) So we'll see what happens. But from my viewpoint as a Texan today, on the most elemental, macroscopic level, Harriet Miers' service with the Texas Lottery can be boiled down to this: (a) Broken before she went there, and (b) Fixed when she left. Oh, sure, she had some help, as I know she'd be the first to insist. But still, in the big picture: One riot, one ranger; then no more riot.

(This, of course, is bound to become the subject of smug tittering like her service to the Bush-43 Administration, and thereby the Nation, as White House Staff Secretary. "Oh, she not only served coffee at the White House, she cleaned house back in Texas!" No good deed goes unpunished, it seems, nor great deed unmocked.)

Regardless of what you, she, or any of them think about the ethical and moral and religious implications of the Texas Lottery, Mr. Miller, evangelicals and other fair-minded people aren't more concerned about the fact that Harriet Miers ran the Texas Lottery because they recognize that it was critically important to the State of Texas — to its Governor, its legislators, its citizens, and especially to its children — that someone brave, competent, and responsible step up to fix its problems. She was (indeed, she still is) — and so she did.

The single best criticism of the Miers nomination

Life tenure is, of course, the proverbial double-edged sword. But certainly an acknowledged strategy of Presidents from both parties has been to pick Justices who are young enough to reasonably be expected to spend many years on the Supreme Court — a "force multiplier" of a sort, each such pick still casting but one vote, yet casting votes for year upon year. And at 60, Ms. Miers is almost a decade older than the newly confirmed Chief Justice.

Initial criticisms from the right about Ms. Miers' age have almost disappeared, however, as her opponents have realized that it's a criticism that can only stick if one first accepts as a premise that Ms. Miers' votes over her likely career will be to one's liking. That is a premise they've spat back out. Indeed, Ms. Miers' age and actuarial likelihood of a shorter tenure undercuts their arguments across the board and, in particular, their arguments that Justices tend to drift to the left the longer they're on the bench and the farther removed they are from their "roots." It's likewise a bit unseemly for Ms. Miers' supporters to argue that, as a more mature nominee, she's unlikely to be as impressionable and subject to persuasion from the left as some younger potential nominees. (Unseemly — but valid.)

It's not directly on point, since it was from a contest involving two particular combatants — and Ms. Miers, to her misfortune, is compared against every other potential nominee whom her critics would rather have seen get the nod (including some who certainly would have been aggressively filibustered, and at least some of those probably successfully) — but I can't help recalling this wonderful bit from the second 1984 Presidential Debate:

MODERATOR: Mr. Trewhitt, your question to President Reagan?

REPORTER: Mr. President, I want to raise an issue that I think has been lurking out there for two or three weeks, and cast it specifically in national security terms. You already are the oldest President in history, and some of your staff say you were tired after your most recent encounter with Mr. Mondale. I recall, yes, that President Kennedy, who had to go for days on end with very little sleep during the Cuba missile crisis. Is there any doubt in your mind that you would be able to function in such circumstances?

REAGAN: Not at all, Mr. Trewhitt and I want you to know that also I will not make age an issue of this campaign. I am not going to exploit for political purposes my opponent's youth and inexperience. If I still have time, I might add, Mr. Trewhitt, I might add that it was Seneca or it was Cicero, I don't know which, that said if it was not for the elders correcting the mistakes of the young, there would be no state.

This was "vintage" Gipper, of course. But this quip essentially ended President Reagan's age as in issue in that election. And while the age of a potential nominee may indeed be relevant in selecting among many candidates, once that candidate has been nominated, then absent some unusual circumstance — "the nominee is on a respirator!" or "the nominee has just been diagnosed with a terminal disease!" — it ought to basically drop out of the confirmation discussion.