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.