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Friday, October 14, 2005

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.)


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?


\*/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!

Posted by Beldar at 10:45 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Fisking NRO's latest anti-Miers manifesto and sent a trackback ping are listed here:


(1) TBinSTL made the following comment | Oct 14, 2005 11:11:34 PM | Permalink

How the mighty are fallen. I guess trying to get hip has it's price. Maybe more thought and less Star Trek would be good for them. Their approach to blogging in the The Corner (no comments) seems to have resulted in a sort of intellectual "standing wave" which has convinced many there that whatever thought first pops into their heads is ok to go with.

Wow! I had no idea how much it would hurt to type that.

(2) Mark K. Sprengel made the following comment | Oct 14, 2005 11:17:54 PM | Permalink

Excellent! I can't believe they missed that "make clear laws" error. Keep up the good work. I wish more of the Conservative pundits would wait for the hearings and see how she performs.

(3) stevesturm made the following comment | Oct 14, 2005 11:28:12 PM | Permalink

Aw, I can't get trackback to work tonight.... so here's the link to my great post on Beldar's fisking of NRO.

(4) Patterico made the following comment | Oct 15, 2005 12:25:55 AM | Permalink

The amicus brief in question [on affirmative action], of course, bore not Ms. Miers' name, but that of left-wing radical Solicitor General Ted Olsen.

The implication being that he was in some way behind the Adminstration's position on affirmative action. I'm almost positive you know better than that. What is the purpose of bringing Ted Olsen's conservative credentials into this argument, when he didn't agree with the position?

(5) Beldar made the following comment | Oct 15, 2005 12:37:32 AM | Permalink

Signing a brief does have some significance. You're representing certain things to the court, as a matter of ethics and compliance with Fed. R. Civ. P. 11. I don't know if what the brief ended up saying squared exactly with what Ted Olsen recommended or not, but I do know — without relying on some off-the-record leaker — that he did sign it (rather than, say, resigning). That's more than I know about Ms. Miers' position, with all due respect. Ultimately, I think that just as John Roberts articulated well in his hearings, and most folks gave him the benefit of the doubt on, the views expressed in a brief ultimately are attributable not to the lawyers, but to the client — hence my point that the brief ultimately is most attributable to Dubya. And even with respect to him, I don't know if it reflects mostly a political judgment on what the Administration had to say (or refrain from saying) to get him re-elected (in part so he could change the Court's direction), or if that's what he actually thinks; I hope it's the former, but I'd readily agree that I'd rather have seen him risk some votes by taking the principled high road. Y'all (who are condemning Miers for supposedly agreeing with this brief) aren't giving her the same credit given to Roberts, nor that which (I agree) should be given to Olsen.

(For what it's worth, had I been in either Miers' or Olsen's shoes, I would have argued that politics cut in favor of that position, principle against it, and that principle ought to govern; but if Dubya picked politics, I would have signed the brief too rather than resigning. Don't forget that the Administration also took a strong, successful stance against the Michigan undergraduate policy, which was a quota in all but name.)

(6) derebu made the following comment | Oct 15, 2005 1:22:54 AM | Permalink

Enjoyed having that MST3K break down of that editorial Beldar. You and Hugh and Anchoress have been my heroes in all this. You are the leaders in a responsible and measured and mature process. You also are encouraging giving any nominee respect and dignity which I'm sorely ashamed to see lacking for this candidate. No one would want to be treated this way by "friends" ever.

They say liberalism is a disease. But after "make clear laws" among too many NARAL/moveon.org esque attacks from prejudice conservatives editorials, I hope NRO sends themselves to the corner. I am sick of reading their personal nightmares as logical proofs (with admitted lack of knowledge) for demanding anything regarding Miers or the Senate (what side of the aisle is supposed to use only emotion as evidences for their positions' righteousness again?). Its as bad as the MSM reading Rove and Cheny indictments into the Plame grand jury when they are probably not the actual targets.
Funny NRO does not want the truth. They dont want her to open her mouth. Heaven forbid we should have informed debate and decisions. You know I found John Roberts very telling and revealing about his judicial philosophy and restraint during his confirmation hearings despite avoiding case positions (the 45 second response to Durbin was exquisite along with the baseball analogies). It reassured me about him while not knowing much about him before. How Miers will not either demonstrate her qualifications or incompitance for the job in the same opportunity is baffling.
The fact NRO demands she doesnt even deserve the hearings for her own good is completely exasperrating and patronizing. I would be furious if I was about to get a promotion and people who dont know me and dont even want to know me (but are on the same team)demand to have me fired or are asking me to resign, for my own good. All because of the simple reason they dreamed I was a nightmare come to life.
How about this analogy NRO:
You are a child shivering in their sheets worried about the boogyman under your bed but demand the lights stay off so you can hold to your nightmare's reality as long as they are off. That way Miers can be Souter or O'Conner or Blackman or Flint or (insert name). Miers meanwhile is fast asleep, in her own bed, at peace after she prayed that eve.

I hold NRO responsible now for excusing these leftist extremists to use these same smear I-don't-know-anything about-the-candidate-but-I-fear-them-anyway tactics and will have NO defense when they condemn it again. Why? Because the left will just post NRO's own quotes/actions to justify their antics. Thanks for the shortsightedness NRO. For defenders of conservativism you just made it harder by giving the left ammunition to use repeatedly against us in debates to defend their actions. This NRO editorial and petition are just more friendly fire digging a deeper hole to climb out of.

(7) Rob made the following comment | Oct 15, 2005 1:26:46 AM | Permalink

If Miers were to "withdraw her own nomination" it could only be interpreted one way: as President George W Bush cutting and running.

This would be a huge mistake for President Bush, having consequences far beyond the Miers nomination.

(8) Polaris made the following comment | Oct 15, 2005 1:30:48 AM | Permalink


It is said that there are five stages in grief:

1. Denial
2. Anger
3. Bargining
4. Depression
5. Acceptance

It seems to me that NR just moved from stage 2 to stage 3.


(9) George Won't made the following comment | Oct 15, 2005 2:10:09 AM | Permalink

Harriet doesn't have decades of experience in Constitutional Law, as do Luttig, Edith Jones, et al. She should step down and let someone MORE EXPERIENCED AND YOUNGER be nominated.

Nice writing, Mr. Beldar, but no cigar.

(10) Peggy made the following comment | Oct 15, 2005 2:34:20 AM | Permalink

The president won't withdraw the nomination, and I've written to Senators demanding she be confirmed if the hearings go well for her.

What's left for me is grieving at the hysteria and dishonesty at NRO. I've been reading it avidly since it came online, and visited The Corner repeatedly daily, though in recent months (even before Miers' nomination) it often descended into cutesy/snarky adolescence.

I'll continue reading (and will renew my subscription to) NRO for the articles by such as Hanson, Pryce-Jones, Rossett and many others, but there are a lot of them I don't know if I'll ever again read -- who knows which side of their mouths they'll be speaking from?

Their rantings about Miers (and the president) have all the hallmarks that made us despise the Clintonistas so much -- half-truths, untruths, personal smear tactics and all the rest, and leave me with the same feeling of disgust and distrust. And it makes me so angry because I thought so highly of them before.

(11) George Turner made the following comment | Oct 15, 2005 2:35:33 AM | Permalink

Beautifully Fisked. I haven't tried the two-color in-flow style before, but I think you've advanced the art.

The NRO editorial makes a tactical error in demanding that Miers withdraw immediately for the good of the President. At this point it would look like she was either pressured or chickened out. I'm sure by Monday the NRO-ons will have realized as much, and start discussing the "Miers' sepuku option", or whether even that would be too obvious. By Friday they'll be publicly calling on her to have a fatal accident in her bathtub, just to spare the conservative movement, the courts, the Constitution, Freedom, and endangered constructionist unicorns.

[Funny but prolly-too-personal bit about one of the NROniks arbitrarily edited out by Beldar; sorry Mr. Turner, but I'm trying to pour oil on the waters.]

(12) derebu made the following comment | Oct 15, 2005 2:45:58 AM | Permalink

George [I think this means "George Won't, not George Turner — Beldar],
to be consistent with your losing argument you must in turn demand 40%+ of all our supreme court justices to have stepped down from their respective nominations. That would included Marshall, Renquist, and Clarence Thomas based on your stated standard above. I bet you were the same person lauding Thomas now that demanded he withdraw during his nomination process too (as being less qualified then other prominent conservative jurists and academics - because he was considered as a lessor choice too).
You want only professors and well versed judges to be jurists (which I see as part of the root cause of some of the incestuous based decisions that produce Kelo, prenumbras, and 25 year decision limits) then amend the Consitution or be elected president.
Other then unsubstantiated fears and dashed dreams of (insert name) jurist nomination I still am seeking actual responsible critiques of this woman that are not based on unknowns, lies, or pure emotion.
In addition, please name a better candidate then Miers if JRB, Owens, Luttig, Clement, McConnel all withdrew their own name (did you know several of the names just listed here did exactly that?). Its quite foolish move by any stretch to trash a decent woman, demand your candidate be picked instead, when your candidate might have well come out and said they withdrew themselves before one was named. If you dont believe me, then Dobson lied too.

(13) George Turner made the following comment | Oct 15, 2005 3:55:21 AM | Permalink

Quite true about being a bit personal, Beldar. You can save that one for cocktail snark.

You know, it's odd that some conservative pundits would try to rile everybody up with apocalyptic tales about what happens when someone lacks a clear and proven judicial philosophy.

"But Edna, she lacks a judicial philosophy!"

"So do you, dear."

"I do too have a judicial philosophy. You can tell when someone's guilty by their beady little eyes."

"Whatever you say, dear."

For all those who now claim they've devoted the last thirty years of their life working up to this very moment, I posit this question:

If Hillary won in 2008 and by happenstance, the entire Supreme Court took a three-hour cruise on the SS Minnow and got lost in a typhoon, would you despair at the eighty-year rebuilding effort?

If that thought had you checking your heart monitor, perhaps you're wound a bit too tight to watch the courts.

(14) Aitch748 made the following comment | Oct 15, 2005 9:52:46 AM | Permalink

Wow. That was good. :-)

I bet Harriet Miers would have caught those errors, too.

Thank you Beldar, for being a voice of sanity for the past week.

(15) Uncle Bill made the following comment | Oct 15, 2005 10:25:51 AM | Permalink

I think that David Frum is part of the NRO cabal, perhaps one of the intelectual leaders.

AJ at Strata-Sphere thinks that David has an axe (or two) to grind.

wpmelcher -at- comcast -dot- net

(16) Patrick Wells made the following comment | Oct 15, 2005 12:33:30 PM | Permalink

"And some have gotten their knickers so twisted that even Bill Clinton couldn't untwist 'em."

It's telling that the best defense of the Miers position seems to be exactly this kind of empty, snarky, remark.

If there is any evidence out there suggesting that Miers will be a justice who will not legislate from the bench, you need to produce it.

All evidence we have is that Miers will uphold AA, uphold Kelo, uphold Roe, uphold restrictions on speech, and on and on.

Do you actually deny this evidence, or do you simply not care how she rules on these cases? Answering this quesion would not solve all the acrinomy on the right, but it would at least be the start of dialog.

(17) Jeff G made the following comment | Oct 15, 2005 2:40:44 PM | Permalink

Thanks, Beldar. I'll add this as an update to my post.

(18) Beldar made the following comment | Oct 15, 2005 4:25:55 PM | Permalink

Mr. Wells:

(1) Read the post.

(2) Follow the links.

(3) If you think you've wasted your time, feel free to direct your browser elsewhere.

I don't insist that my arguments are all correct or that I'm always right. I do know when I've made some. Yes, absolutely, I deny the conclusory opinions that you describe as "evidence" but never spell out. I've spent two weeks writing about why those conclusory opinions aren't persuasive. And your suggestiong that I "don't care," sir, is indeed precisely the kind of statement that generates hard feelings, even fist-fights. It tells me that your knickers are twisted.

This post in particular, by its nature, was intended to be snarky and was disclosed as such within the first sentence. If you can't at least manage a smile from that, then I respectfully submit that you are humorless -- regardless of which of us turns out to be right. Please be civil if you choose to comment here again.

(19) nash made the following comment | Oct 16, 2005 4:48:24 PM | Permalink

You linked to a previous post in your "fisking" above where you wrote about her pro-bono work on a social security case:

"Harriet Miers. . . couldn't get this panel. . . to bend a harsh administrative law out of shape. Funny, that, how Judge Rubin still went out of his way to compliment Ms. Miers."

Gee, aren't you supporting the other side's argument that she's a nice lady and a competent lawyer, but will try to bend the law to achieve her desired outcomes???

(20) anon made the following comment | Oct 16, 2005 5:30:52 PM | Permalink

Give 'em hell Beldar!

Love it!

I am going to be re-reading this a COUPLE of times.

This reminds me of Zell Miller!

Truth in the face of pomposity.

Goldwater and WFB wanna know the difference?

Goldwater-fighter pilot-swore, told the truth and hated pomposity. He would have hated that little letter that K-Lo posted within hours from Elaine Donnelly @ The Center for Military Readiness trying to scapegoat Harriet Miers for Rummy's decisions. Hang that around Harriet's neck-whatever K-Lo.

He would remember that there is a WAR on-and just who in the Corner is their go to military guy?

Rich Lowry!?!?

(21) Beldar made the following comment | Oct 16, 2005 6:44:26 PM | Permalink

Nash, thanks for the comment, but: No, no, a thousand times no!

The reason I mentioned that case in this post is because her taking a pro bono case like this one, and taking it so far, is completely inconsistent with what the NRO editorial claimed about her suppsoed "strong tendency to identify with local elites and establishments."

What you're now trying to do — and I reject — is say that because she did her best to represent her client by looking for loopholes or creative interpretations of the relevant statutes, she would also do that from the bench.

I have zero doubt that — a la John Roberts — had she been the lawyer for H&HS, she could have argued the opposite proposition with as much competency. And I'm pretty sure that just like Judges Rubin, Gee, and King, she'd have ruled from the bench on this case the same way they did (because the statute does in fact sharply, and appropriately, restrict judicial intervention in what's intended to be a largely administrative exercise of discretion).

Her taking an appointment to represent an indigent criminal defendant doesn't mean she's pro-crime either. But it does say something about her commitment to her profession and to the system that provides counsel for indigent defendants (or, here, indigent applicants for social security benefits).

(22) JC made the following comment | Oct 16, 2005 7:31:44 PM | Permalink

Beldar, you've been in my favorite links section for a while, and I've always enjoyed reading your stuff. After the John Roberts nomination, I was concerned about supporting someone with so little in the way of a judicial record, but my mind was changed after I read some of your posts. I trusted your intellectual honesty and your judgment. But your posts generally in the wake of the Miers nomination have caused me to lose my faith in the latter, and this post specifically has now contributed to my loss of faith in the former.

Your "fisking" is basically a hash of the three old standbys the pro-Miers camp has advanced since the start:

1. Trust the president.
2. She's been a good lawyer and a nice lady.
3. Critics of the nomination are arrogant crybabies who should have kept their concerns to themselves.

Quite frankly, I expected better from you. I suspect you won't care one way or the other, but your credibility has been considerably damaged in my eyes and I can no longer take your opinions seriously.

(23) Battsman made the following comment | Oct 16, 2005 9:42:49 PM | Permalink

Well, one good thing has come out of this mess. I found this site, Anchoress, and Hewitt. At the last election, I had begun reading some other sites (including NRO) pretty regularly, but this hateful turning on the President and Miers has completely turned me off. I don't bother going to NRO any more, and I guess I now empathize with my more liberal colleagues who used to say they hated that site.

As for Miers, I don't know whether she's a great pick or not ... but neither do the geniuses at NRO. I do believe that the President has made great judicial choices up to now, and I've seen no reason to believe he's suddenly - when it matters most - gone bonkers and selected a loon.

Now, I am interested in reading facts about Harriet Miers, but not some of the over the top comments (I've even seen some say it's "worrisome" that she's never been married - sheesh).

If time shows her to be an awful SC judge, Bush will bear the blame past his lifetime, and I'll be there denouncing her (as I do Souter).

If, on the other hand, she winds up being excellent, I hope the naysayers will have the integrity to say "well, what do you know, GWB did us proud."

(24) nash made the following comment | Oct 16, 2005 9:43:12 PM | Permalink


You wrote:

"And I'm pretty sure that. . . she'd have ruled from the bench on this case the same way they did (because the statute does in fact sharply, and appropriately, restrict judicial intervention."

I'm not a lawyer so you'll have to excuse what may be a simple minded question. Why would Miers take on a pro-bono case if she knew (or should have known, if what you wrote is true) that she had no chance of winning? Eiher she was hoping they would bend the rules for her client, or she was incompetent as a lawyer.

Pro-bono work is very commendable, but I think you've highlighted a case where she has shown very questionable judgement if what you wrote is true.

(25) Beldar made the following comment | Oct 16, 2005 9:58:37 PM | Permalink

Nash, you apparently have a very inaccurate conception of what it means to be a lawyer, or you're deliberately being a troll. Either way, this post will conclude our discussion of this particular matter on this blog.

Lawyers aren't, or at least shouldn't try to be, little gods and goddesses who whip our clients around and tell them to get back in the gutter.

By signing the briefing on behalf of her client, Ms. Miers, like every other lawyer practicing in the federal courts, affirmed to the court that she had a good-faith basis for the arguments she was making -- that there were factual bases for them, and that there either was support in the existing precedent or she was arguing for a reasonable extention or change in that precedent.

I did not say, and am not saying, that she asked them to twist the law. I haven't read her briefing, and I've only read the court's opinion. The Court clearly felt sympathetic for Ms. Miers' client, but felt that it could not grant her relief without twisting the law, which is to say, that's why Ms. Miers' client lost. But I'm quite certain that however it was phrased, Ms. Miers' briefing represented her best professional efforts to meet her ethical obligations both of candor to the tribunal and zealous representation of her client within the bounds of the law.

Moreover, I had the privilege of knowing the three Fifth Circuit judges on this panel. One of them, I worked for every day for a year as a law clerk, and the other two she sat with on a special screening panel with throughout that same year. They covered the entire political spectrum of the Fifth Circuit as it existed at that time, with my judge being in the middle, Judge Rubin on the political left, and Judge Gee on the right. They were all, however, superb judges. If they, or any one of them, had any inkling that Ms. Miers was asking the Fifth Circuit to do something improper, or that she was incompetent, or that her factual or legal arguments were frivilous, they would not have signed on to an opinion that began with a conspicuous and very unusual compliment to her professional ability!

(26) Beldar made the following comment | Oct 16, 2005 10:03:36 PM | Permalink

JC, you don't win any kudos from me by mischaracterizing my arguments and leveling personal insults either, so you're welcome to direct your browser elsewhere. Good luck in life.

(27) nash made the following comment | Oct 17, 2005 12:44:01 AM | Permalink

I apologize. I wasn't trying to troll your blog. I heard you on Hewitt the other day and found the link to this post on another blog. The portion I commented on just happened to catch my attention. I still see some incongruity between what you wrote but I don't expect you to try to clear it up for me.

One thing I will say is that some of what you wrote in your fisking is pretty sarcastic. I'm not sure if that's the best way to turn around the opposition to Mier's nomination and maintain party unity.

Thank you for your time,


(28) Beldar made the following comment | Oct 17, 2005 2:10:24 AM | Permalink

Nash, thanks. I take your last comment at face value, and hope you'll continue to read and comment here.

Many non-lawyers have trouble understanding, for example, how an ethical, moral, God-fearing and crime-hating lawyer can stand to vigorously represent a criminal defendant who's guilty. Some few who fully understand the arguments for and against, still reject the proposition. It's a conceptual problem that is very close to the core of what it means to be a lawyer and a professional, and if I became snappish in trying to summarize how I think it applies to Ms. Miers' track record, then I apologize to you. But take a look, perhaps, at this post, in which I explain why, for example, I think John Roberts and I both would have agreed to represent the Topeka Board of Education.

You're right that the fisking on this particular post is very snarky and sarcastic. Duly disclosed in the first sentence. I agree also that a steady diet of that is ineffective. But I read, for example, someone on another blog refer to this post as my having engaged in "name-calling." No, I didn't. Someone else said in a comment here I'd accused the NRO folks of being crybabies and told them to shut up. No, I didn't -- I'm inviting them back to the debate, in fact. I know that their editors and contributors have excellent, quirky senses of humor, and that in other contexts they've been willing to engage in some self-deprication, even self-mockery. If you'll read my last 30 posts, almost all of which are about the Miers nomination, you'll see that this one is way above most of those on the sarcasm meter; this one, though, I intentionally cut loose on because I think good-natured, non-hateful snark and sarcasm are especially effective rhetorical tools when one's fisking.

(29) Jeff made the following comment | Oct 17, 2005 10:44:34 AM | Permalink

Thanks so much for your well reasoned and well stated posts.

I often wonder what would David Frum (and George Will, Bill Kristol, Charles Krauthammer, et. al.) have done if he had to choose between:
1. Someone he knew well and strongly believed would be the best choice for SCOTUS, but would be opposed by many inside and outside his party;
2. Someone he did not know as well, but was highly regarded by others inside his party.

Would Frum have the courage of his convictions to stand up and fight for who he believed in, or would he yield to the 'wisdom of others'?

Although I don't know what Frum would do, I believe I know what our President would do... which is one of the reasons I voted for him.

BTW, how many votes did Frum, Kristol and Krauthammer receive in the last Presidential election?

(30) Jeff made the following comment | Oct 17, 2005 5:54:19 PM | Permalink

Most of them at NRO would be writing for a left wing magazine if they thought they could get 15 miutes of fame out of it. They are intellectual mercenaries who would argue for anyone, about anything if it got them some ink time and some "power".
The reality is they are not actually powerful forces for conservative ideas. To my knowledge not one of them has run for public office in NYC. (WFB is the exception) They are obviously not willing to put their money where their mouth is. The writing about conservative "ideals" instead of trying to actually implement them is why they don't understand how come so many Congressmen and Senators on the right are so wobbly on the conservative ideals. (Easy to write, tough to implement)

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