« Miers' campaign contributions to Gore and Bentsen | Main | Professor Kingsfield and the Miers confirmation hearings »

Thursday, October 13, 2005

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.


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.)


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.


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.


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).


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.

Posted by Beldar at 12:35 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to National Review abandons any pretense of neutrality, open-mindedness on Miers nomination and sent a trackback ping are listed here:

» The Conservative Jackassery Report: Week Two from Alamo Nation

Tracked on Oct 13, 2005 1:25:34 AM

» Beldar Slam Dunks National Review from QT Monster's Place

Tracked on Oct 13, 2005 3:04:20 AM


(1) Bingo made the following comment | Oct 13, 2005 12:58:42 AM | Permalink

Excellent commentary Beldar. Online petitions have always struck me as suggesting an uncertain degree of immaturity, insecurity and, dare I say, panic?

(2) Senator Palpatine made the following comment | Oct 13, 2005 1:03:00 AM | Permalink

"Why? Why the incredible hurry?"

Because the longer this goes on the more it will hurt our party and our president.

I also have a horrible fear she may embarrass herself, not so much because of her knowledge or lack thereof, but because of her perceived vulnerability.

(3) Beldar made the following comment | Oct 13, 2005 1:13:19 AM | Permalink

Oh by all means, let's not let the evidence be collected before we make up our minds, that will hurt the Party and the President!

Except that withdrawing the nomination will hurt the Party and the President. More than proceeding? I dunno, neither does anyone, so why not see what the evidence is?

Maybe it will (gasp) change some minds, one way or the other.

There's also one thing I'm absolutely confident of about Harriet Miers: She deserves to make up her own mind whether to continue subjecting herself to this hideous process. Telling her, or the President, that her nomination should be withdrawn for her own good is inexcusably patronizing, and this woman clearly, clearly deserves better than to be patronized. She's earned the right to screw up bigtime and on national TV, if that's what it's to be. (Or to quiet her critics, if that's what it's to be.)

(4) Hans Gruber made the following comment | Oct 13, 2005 1:22:56 AM | Permalink

A terrible performance --whether her fault or not--is not just bad for her, it's bad for the president and bad for the party.

Even a dunce like Specter or Biden can ambush someone pretty easy in the format she will have to face.

Because she is perceived as vulnerable, as needing a "crash course in conlaw," when confronted with an obscure, unfair question, her performance will be viewed as evidence of her lack of knowledge.

Half of America wouldn't even know if Bush withdrew this nomination today, but if he waits a few more weeks, or after the hearings, of worst of all lets it go to a vote, the more he is damaging himself and his party.

(5) George Berryman made the following comment | Oct 13, 2005 1:31:20 AM | Permalink

"I also have a horrible fear she may embarrass herself, not so much because of her knowledge or lack thereof, but because of her perceived vulnerability."

She may embarrass *herself* because of a vulnerability perceived? The only perceived vulnerability here is coming from others, not herself. I doubt she's going to trip up during the hearings just because the pinheads at National Review don't think she can cut it.

(6) Hans Gruber made the following comment | Oct 13, 2005 1:35:25 AM | Permalink


Yes. Because she is perceived as needing a crash course in conlaw, any slip up will solidify that belief, whether or not it is justified.

(7) George Berryman made the following comment | Oct 13, 2005 1:39:50 AM | Permalink

So from here on out our President can only make appointment decisions based on whether or not our elite punditocracy thinks said appointee or nominee needs a crash course on constitutional law? And why are conservatives suddenly making a talking point from Arlen Freaking Specter something to base a weighty decision on? Most of the time we're busy bashing Specter (rightfully so) yet now many of us are breathlessly latching onto his opinion of a SCOTUS nominee?

(8) Hans Gruber made the following comment | Oct 13, 2005 1:46:32 AM | Permalink

Hey, the President is free to thumb his nose at his party and watch it implode on his watch. He's free to watch his approval rating fall into the low thirties.

It is simply FALSE that only elites are upset with this nomination. There is profound disappointment in the conservative legal community, and among social conservatives who closely follow the courts. Lott, Thune, and Santorum, to name a few, have all come out with very, very measured statements. If you think this is just a matter of a few elite conservative intellectuals throwing a tantrum, then you are profoundly mistaken.

(9) craig mclaughlin made the following comment | Oct 13, 2005 1:46:49 AM | Permalink

I've seen it asserted by lots of folks in lots of places that Ms. Miers needs "a crash course in conlaw." I went to law school at the University of Georgia. I took a constitutional law course. My professor clerked for Judge Blackmun. Despite being distracted by Athens night life-- I came to school hungover a lot-- I didn't really have any trouble keeping up. I certainly don't consider myself an expert. But I could be if I tried. Constitutional law isn't that hard. Multivariable Calculus is harder. (I've studied both) So when journalists like, for example, David Broder (on Meet the Press) or the corner gang wonder if a law school graduate who has been practicing law for thirty years is smart enough to grasp the constitutional issues, well, that's just funny to me.

I don't think it is too much to ask, as Beldar and xrlq are, to at least let the woman have a hearing. One fundamental role of our legal system is to replace the lynch mob with something better.

(10) Hans Gruber made the following comment | Oct 13, 2005 1:55:13 AM | Permalink

"I certainly don't consider myself an expert. But I could be if I tried."

In two weeks? I am not sure if I am making myself very clear.

Let's try this again. Whether or not Miers is competent in constitutional law, she is vulnerable to that charge. That is how she is perceived, like it or not.

If she slips up, which isn't hard to do if a Senator decides to throw her a difficult, obscure question, then she will be perceived--rightly or wrongly--as second rate.

This isn't a problem, of course, when a nominee is already perceived as highly competent, as John Roberts was.

(11) coffeedrinker (aka Middle America Conservative) made the following comment | Oct 13, 2005 1:58:21 AM | Permalink

Throughout all the Bush-bashing from the left of the past 5 years, the conservatives (like myself) have been criticizing Liberals for jumping to conclusions and calling for ridiculous actions based on meager facts. We also have been pointing out their selective use of various facts to support their arguments.

I now see that conservatives are not immune to this disease, as well. Funny, how the Ivy Leaguers of the right who question Harriet Miers' intellect have resorted to the same "jump-the-gun" mentality of the Liberals.

I guess "elites" are "elites" no matter what judicial or political philosophy they purport to follow.

(12) Beldar made the following comment | Oct 13, 2005 2:04:28 AM | Permalink

Mr. Gruber, thank you for the articulate comments. With due respect, sir, I think you give too much credit to the good senators, and too little to Ms. Miers.

Events may prove me wrong, but from the performance of all of the senators (unfortunately of both parties) at the Roberts confirmation hearing, I've drawn the firm conclusion that none of them is capable of reading from a good script and sticking to it, even if their staffers can write one (which is still an open question).

I absolutely, positively agree that John Roberts was, by training and experience, probably the most well-spoken nominee in his confirmation hearings in the history of the Republic. Having battled wits with the Justices of the Supreme Court and various lower appellate courts on a very regular basis, he was superbly prepared to face the Senate. But I think those who believe Harriet Miers is chopped liver by comparison are going to be surprised.

You're right: She hasn't spent a career responding to oral argument questions from SCOTUS Justices.

No, her appellate appearances appear to have been limited to the Fifth Circuit and Texas intermediate appellate courts (no slackers). Her other public speaking opportunities appear to have been limited to state and federal court trial judges perhaps innumerable but as yet unnumbered; Dallas City Councilpersons; various local, state, and national bar functionaries; clients like Disney and Microsoft; her partners who were fighting over such things as cross-state mergers and who gets how much money out of this year's pie; and the President of the United States and his staff.

Where do I place Joe Biden in that continuum? Ehhhhh. Great smile. Sharp dresser. Dead meat.

(13) JS made the following comment | Oct 13, 2005 2:16:02 AM | Permalink

dumbest post. ever.

for one thing you used about 1000 words to say nothing. then you made the point that because an online petition "permits only one set of opinions" that National Review authors have closed their minds. I'm missing why an open mind requires that National Review offer an array of online petitions, one for each type of reader.

(14) Beldar made the following comment | Oct 13, 2005 2:18:01 AM | Permalink

Gosh, JS, that's why I pay for the bandwidth, so you can come here and abuse me for taking up so much of it! Thanks, come again now.

(15) hunter made the following comment | Oct 13, 2005 2:51:28 AM | Permalink

Mostly, I am finding myself with a lot less interest in reading the thoughts and ideas of the mutineers on this. Their knee jerk reaction against Harriet is not more credible when they go out and fabricate data to support their pre-existing conclusion. W has kept his word. The mutineers have created a new standard: only nominate people on our list of conservatives. And then they claim that W is the one breaking his word.
Please show me anywhere where NRO was part of the vetting and decision making process?
Where was NRO in helping to make the case for the filibuster reform?
Is Frum going to take on for the team when the defacto veto power of the demohacks in the Senate is unmasked?
Buckley must be terribly worried and saddened that the movement he started, and has done so much to help this nation is now being fissured by the magazine he founded to promote conservatism.
Shame on NRO and the rest of the mutineers.

(16) Hans Gruber made the following comment | Oct 13, 2005 2:56:28 AM | Permalink


She may well be the legal and intellectual superior of every member of the judiciary. But the fact is she will be questioned in a forum that is undeniably asymetrical. They get to ask the questions. They get to prepare those questions in advance, and then prepare their rebuttals to her probable answers in advance. She must answer those questions as they come at her. One can ask about some obscure court history or precedent, and make her look foolish with out much skill or knowledge.

Even if she makes some error that is not caught by the Senators at the time, the error will undoubtedly be found by those watching. The error will be proof of her lack of knowledge and fitness to serve on the Court. Leno will have some more ammo for a few more jokes, and the president and our party will be damaged further--much of it self-inflicted. And the crony charge will be etched in history.

She has a difficult task ahead of her. She must convince conservatives of her competence and her conservative judicial philosophy--whatever that may be--and then she must defend that philosophy from rabid liberals.

She cannot, unfortuntately, claim she has no grand philosophy like Roberts did, because that will sink her with conservative Senators.

(17) Xrlq made the following comment | Oct 13, 2005 3:02:34 AM | Permalink

As far as I'm concerned, David Frum's first two screeds on Miers permanently forfeited the privilege of me giving a rat's patootie what (or if) David Frum thinks about anything. Given how desperate he's been to push every conceivable argument, however dubious, strained, downright stupid or even mutually contradictory it may be (oppose Miers because she's an unqualified judge who will vote the wrong way, and because she's so old she won't be on the court long enough!), this pathetic petition does not surprise me in the least. Nevertheless, it bears noting that it is hosted in Frum's area of NR, not a common area, so unless and until the NR comes out and says "we support this petition," I'm reluctant to impute Frum's individual petulance to the institution at large. Respondeat superior is fine for determining tort liability, but I'm not sure it's a reliable measure of general jerkitude.

(18) Hans Gruber made the following comment | Oct 13, 2005 3:07:09 AM | Permalink

"W has kept his word."

Bush promised us "strict constructionists," and strongly implied they would be close to Scalia and Thomas philosophically. A strict constructionist is a synonym for orginalist or textualist. They all belong to the same constitutional club. It's a matter of preference--largely semantic--but Bush could have picked somebody from any of those camps.

Bush has given us one nominee with outstanding credentials but that claims no judicial philosophy whatsoever. Strike one. No judicial philosophy and endorsement of the oxymoron "substnative due process" does not translate into "strict constructionist."

Now he hands us another nominee, this time a former Democrat and supporter of racial preferences, who has never written or commented publicly about any issue of constitutional significance in her nearly forty years as a lawyer. Maybe she will dazzle us with her "strict constructionism," and maybe she won't. If I were a betting man...

(19) Xrlq made the following comment | Oct 13, 2005 3:13:19 AM | Permalink

Hans, didn't she handle the case against that rabble rouser who challenged Bush and Cheney's right to run on the same ticket? I wouldn't say that case had no constitutional significance.

(20) Beldar made the following comment | Oct 13, 2005 3:15:57 AM | Permalink

Two words, Xrlq:



(This being a concept Harriet Miers argued in her Disney case on personal jurisdiction, and one of the slipperiest concepts in the law of agency.)

(21) Beldar made the following comment | Oct 13, 2005 3:29:50 AM | Permalink

[T]he fact is she will be questioned in a forum that is undeniably asymetrical. They get to ask the questions. They get to prepare those questions in advance, and then prepare their rebuttals to her probable answers in advance. She must answer those questions as they come at her. One can ask about some obscure court history or precedent, and make her look foolish with out much skill or knowledge.

Yes, yes! I entirely agree, Mr. Gruber! You'd think they could take advantage of these intrinsic advantages!

But they could no more do so with the Roberts nomination than they could manage to lower their pants before soiling themselves. It's not pretty or logical, I agree. But that's ... Our ... Senate. The world's greatest deliberative body™.

To hit the sweet spot, to utterly expose (if that's doable) the nominee's lack of comprehensive constitutional familiarity (if she is guilty thereof — her inability to cite cases, volumes, pages, lines, majority and dissenting opinions, Justices, margins, date and footnotes — all of which John Roberts, bless his robotic memory, seemed able to do), the Senators themselves will have had to master this.

Fat. Chance. Better chance that they will memorize the periodic table. Better chance that they will ask a question from the floor of the Judiciary Committee hearings that inspires Larry Tribe's next Harvard Law Review article or con-law treatise.

Ain't. Gonna happen. Sorry. You and events may prove me wrong, but I ... don' think so.

(22) TBinSTL made the following comment | Oct 13, 2005 3:44:23 AM | Permalink

Perhaps not coincidentally, I have found myself less and less enamored with the work being done at NRO for some time now. I am more and more mindful of WFB's absence. His unwavering affection for and loyalty to Reagan would have earned him a "Ron-bot" moniker these days.

(23) Rob made the following comment | Oct 13, 2005 3:51:48 AM | Permalink

The "needs crash course in Con Law" comment comes from Senator Arlen Specter, a hard core consitutional theorist and ex-law review editor of the Yale Law Review

Don't pay attention to such people, they are usually very pale and often need to get out of the law library to catch a few rays of sunshine now and then

(24) Carl Pham made the following comment | Oct 13, 2005 4:01:16 AM | Permalink

NRO, at least, seems to have a touch of hysteria every now and then. Remember The Corner's panicky outbursts during the election because of those bogus exit-poll projections? Hewitt slapped them down fairly hard for being silly geese.

I blame Kathryn Lopez, since she seems to be some kind of editorial force, and she definitely has a personal history of freaking out when she thinks something ungood is happening. Maybe she drinks too much coffee.

Myself, I don't understand why GWB nominated Meiers, but he has more political acumen than fifty of me -- or, for that matter, fifty of David Frum. So while I don't know why, I would be pretty darn surprised if the armchair theorists turned out right and the great crafty political engineer in the White House proved wrong.

Also, as a non-lawyer, I'm very cool -- even hostile -- to the law professorly argument that she can't be any good more or less just because she's never been a judge.

Screw that. If an intelligent, capable and successful man or woman of the world can't figure out what the Constitution says and doesn't say -- if it takes some kind of Yoda-like supergenius to figure out what the hell Madison meant, and how to sort out simple justice from all the clever arguments those lawyers will be making in front of her -- well, then the Republic is already doomed.

This is supposed to be a plain-talkin' what you see is what you get, no-nonsense government by as well as for the people, not some arcane canon parseable only by legal monks after half a century's study of secret scrolls. I'm just not too keen on buying into the proposition that we non-professional (i.e. non-judge) yokels are too clueless to be trusted with certain of the levers of power.

(25) David Walser made the following comment | Oct 13, 2005 4:08:41 AM | Permalink

The good folks at NRO just don't understand the reason they are being called elitists. They say, "We don't care that she just has a degree from SMU. We would have supported so-and-so, who went to USC." Sure, they aren't elitist in the sense of demanding a particular pedigree. They are elitist in the sense of demanding that the President's nominee must come off of their list or he or she will be deemed unqualified until proven otherwise (which, of course, they won't have the good grace to allow the nominee an opportunity to prove his or her qualifications). They are so knowledgeable and so well-connected that they know ALL the possible nominees of any reasonable quality! They know more than the President and his entire team of advisors! They are being called elitists because they are acting like elitists -- they know more than anyone else about this topic and act accordingly. In addition to conceited and presumptuous, elitist seems like an apt adjective for this attitude.

(26) Hans Gruber made the following comment | Oct 13, 2005 4:18:37 AM | Permalink

"Myself, I don't understand why GWB nominated Meiers, but he has more political acumen than fifty of me -- or, for that matter, fifty of David Frum."

Yes, but apparently not enough "political acumen" to realize this nomination would be a total disaster.

Word is out that Cheney opposed this choice, among others. The vetting process was poor, in large part because of conflicts of interest--those in charge of vetting her were subject to retaliation by her. Nice formula for success, right?

(27) Hans Gruber made the following comment | Oct 13, 2005 4:20:35 AM | Permalink

Sorry, I should have posted this in my last comment. Fund's story on vetting process:

(28) David Walser made the following comment | Oct 13, 2005 4:49:48 AM | Permalink

Hans - You remind me of Cubs fans. Some are so sure their team will some how find a way of losing, they cannot bear to watch the game. I can understand this from Cubs fans. To an extent, I understand this feeling since I share it whenever President Bush approaches a microphone -- I start to cringe before he even opens his mouth so sure am I he will be less than smooth in delivering his comments. Despite understanding how some might not bear to watch, I can't fathom Cubs fans petitioning the season be be called off -- all because they are afraid their team will lose. Hey. Let'em play and give Miers a chance to testify. It's not impossible that someone with decades of experiance being grilled by judges in front of juries will do alright when confronted with Senators. Stranger things have happened.

(29) saveliberty made the following comment | Oct 13, 2005 6:07:00 AM | Permalink

I agree with Beldar and will add the following observations as a beltway outsider and nonlawyer--

One of the first rules of resolving differences in the business (non lawyerly) world is to give the other person the benefit of the doubt.

Imagine going into your boss's office to escalate an issue but without giving your boss or the persons that you may have a grievance with the benefit of the doubt.

It will backfire on you.

So here's another scenario. Imagine that you have identified what you perceive to be an issue and you escalate it to your boss. Your boss notes it but you don't see the outcome you would like. You go back in, because clearly he or she didn't understand. You hammer again.

Still no change.

Now you're getting frustrated.

So is your boss.

It didn't have to be that way if you could have given him or her more of the benefit of the doubt.

Good litigation skills and good management skills include the ability to recognize when to stop making your point as there is a point of diminishing (and even backfiring) returns.

The last observation is that the most powerful vulnerability to effective management and communication is the set of underlying assumptions.

This is the source of all conflict that I have seen and had to manage through in business.

It's appearing as though NRO seems to think that it can change the nominee. And that may be true.

But I disagree with the tacit premise that they can replace the Miers nomination with the type of candidate that they want and have that person be confirmed.

It would be different if the Democrats reamed her and the Republicans supported her.

IMHO, NRO has overplayed its hand and risks a more explicitly liberal nominee.

There are the disgruntled who have added other frustrations to their intensity of opposing Harriet Miers.

That's especially unfortunate.

(30) Glenn made the following comment | Oct 13, 2005 7:59:02 AM | Permalink

Hans -

Yes, but apparently not enough "political acumen" to realize this nomination would be a total disaster.

It is very likely the President and all involved in the process understood that this nomination would stir up trouble. The President made a decision to proceed anyway.

Let me expand on that last sentence: The President made a decison with at least a decent understanding of the potential political consequences to exercise his power under the Constitution to nominate Miers. I have read reports that her nomination was strongly opposed by many of the WH staff, but Bush proceeded anyway.

What this tells me is that Bush went into this with his eyes open, aware of the consequences yet convinced he was doing the right thing. He took the advice of others and decided that the conclusions were not in the best interests of the country.

His "political acumen" got him elected twice to the highest office in the land in two of the most hotly contested elections in memory.

Without meaning any disrespect, I wonder how you can reach the conclusion that Bush was too politically naive to realize the consequences of his actions. This nomination has so far generated an awful lot of heat, but very little light. That is what the hearings are for - spotlighting the nominee.

Using hyperbole like "total disaster" to describe Miers' nomination is exactly the kind of thing that we should be avoiding. It is fine to be concerned about the outcome of this process, but offering up prejudgments such as "total disaster" is not the kind of rhetoric that will add meaning to this debate. Neither will NRO's petition or David Frum's fact-challenged rants.

Before we pronounce this nomination the political equivalent of Krakatoa, why don't we at least wait for the volcano to actually explode?

(31) Hans Gruber made the following comment | Oct 13, 2005 8:23:51 AM | Permalink

"Without meaning any disrespect, I wonder how you can reach the conclusion that Bush was too politically naive to realize the consequences of his actions."

Who is being naive? Are you suggesting that Bush knew half of his base would violently oppose this nomination but he decided to proceed for the good of the country?

Hey, Beldar puts up an admirable defense of the gal, but she can't be THAT good.

(32) Rob made the following comment | Oct 13, 2005 8:25:29 AM | Permalink

The Miers-bashers still need to tell us how a provably "will overturn Roe" candidate is supposed to get by the nomination process, when the large majority of the american population still favor keeping abortion legal, no matter how abhorrent they may personally believe it to be

Now if one truely believes abortion is murder (which technically is defined as an unlawful killing) - then obviously it would not matter what the majority of the public thought about abortion, and abortion simply s/b made illegal

The problem presented is that many even non "pro-choice" members of the general public believe while certainly the fetus is killed, its not in the nature of a murder of a baby.

Thomas as one might remember got by, after Anita Hill testified, by labeling the entire process a "high tech lynching" Thomas of course denied having ever thought about abortion and Roe in any definitive way.

(33) Hans Gruber made the following comment | Oct 13, 2005 8:31:20 AM | Permalink

First, overturning Roe doesn't make abortion illegal. The public's supposed support of it is based on faulty premises.

Luttig, to name one, does not have a public position on Roe. He is, however, verfiably a legal conservative.

(34) DC made the following comment | Oct 13, 2005 8:52:50 AM | Permalink


So ... let's see, an opinion journal has to be objective. Right, gotcha.

Okay ... and you, who have made your mind up on this nomination, are objective? I understand.

And the President's flaks who have said things about the Republican Party base they would never say about Chuck Schumer are full of goodwill and virtue. I see.

You fly off the handle and insult Peggy Noonan and turn a blind eye to the WH calling its most ardent supporters "sexist". Blows my mind.

Hugh says we've been given a judge like Potter Stewart. This is great, Beldar. We'll just shut up and let the flaks make the case.

(35) Beldar made the following comment | Oct 13, 2005 9:19:48 AM | Permalink

DC: I won't be baited.

But your nominal undecidedness is wearing a bit thin.

Mr. Gruber, I honestly don't know whether the WH anticipated this degree of opposition or not. But I'll tell you what I do believe: The WH staff knows how to count. (I.e., count votes on the Senate floor, i.e., knows whether there's a chance in hell that a Luttig or a Brown or a Jones could have gathered 50 votes for the nuclear option.) But again, I maintain that who is or isn't destroying the Republican Party isn't the issue. This is about who fills O'Connor's seat.

(36) slarrow made the following comment | Oct 13, 2005 9:21:10 AM | Permalink

Cheap, DC. Very cheap.

I read the caveats Beldar posted. Did you?

Remember how you said that discussion of the nomination can push someone from agnostic to taking a position? I remarked then it works both ways. It still does.

(37) PRIM made the following comment | Oct 13, 2005 9:38:58 AM | Permalink

Beldar: Excellent. Keep it up. Three observations:
1) The Miers nomination is NRO's "Katrina Coverage" moment.
2) Group blogs like The Corner and Bench Memos are best when they show a range of opinion. Today they seem more like a herd mentality.
3) David Frum lasted a year in the Bush White House. There's got to be a story there. Could Miers have manhandled him?

(38) Rob made the following comment | Oct 13, 2005 9:44:10 AM | Permalink

"First, overturning Roe doesn't make abortion illegal. The public's supposed support of it is based on faulty premises."

I am glad that you have explained to us that Roe will now be a non-issue. The Judiciary Committe members should now be so informed.

(39) My Boaz's Ruth made the following comment | Oct 13, 2005 9:44:15 AM | Permalink

1. I have no read The Corner NEARLY as much in the last week as I used to (Dipping in to see if they have calmed down. Nope, and skipping away again). After the confirmation hearings, if things calm down, I may be back. Maybe by then I'll have broke the addiction.

2. The Corner's immediate reaction when the nomination came out was so extreme anti-Miers that it swung me toward her. No benefit of the doubt to their President at all. I am still cautious, waiting for confirmation hearings. But very annoyed at everyone who don't even want to give her that! What are they so afraid of if they are certain that she is not fit?

(40) mountain noise made the following comment | Oct 13, 2005 9:52:13 AM | Permalink


has a good account as to why he left. I have a feeling that he is a wee bit bitter about being asked, very nicely of course, to find other employment.

(41) Peggy made the following comment | Oct 13, 2005 10:11:08 AM | Permalink

It looks like NRO and NR are terrified of Miers being confirmed and proving out one of the best Supremes conservatives could hope for.

Belder, I'll repeat myself -- your's is one of the strongest voices of accurate information and sanity in this entire brouhaha, and I for one am very grateful.

(42) Ironman made the following comment | Oct 13, 2005 10:17:23 AM | Permalink

I think we need a thread on the recusal issue. It makes little sense to name a justice who may need to miss some of the most important cases before the Court.

This issue ought to be cleared up BEFORE we proceeds further.

(43) made the following comment | Oct 13, 2005 10:39:51 AM | Permalink

I'm ever amused by the cyberspace breast-beaters who presume to speak for the "base". The "base" is the over 62 million Americans who voted for George W. Bush last November and who will find Harriet Miers a trustworthy, talented and honorable person. Nobody who delivers elections cares what the self-styled wannabe conservative opinion makers picking at hors d'ourves at Manhattan and Georgetown cocktail parties think of this pick. Laura Ingraham wants to write another book and bolster her radio ratings. The NRO ham 'n eggers (who are dependably, hysterically wrong about everything)are desperate for web hits and funding. They've thrown this President overboard in the hope of taking leadership of the '06/'08 pundit brigade (and its attendant book deals, speaking gigs and media bookings). Bush is going to BENEFIT from the harpies of the fringe right so adamantly opposing this nomination. The dumb dumb elitists are effectively providing Bush and any pol who supports him a huge "triangulation" opportunity. But, elitism and street smarts are often mutually exclusive traits.

(44) Jeff Carlson made the following comment | Oct 13, 2005 10:40:17 AM | Permalink


Great post ... up until 2 weeks ago I made NRO my first "blog" in the morning, that is no longer the case. From what I see on NRO now it all boils down to, "We know what makes a nominee qualified" and Miers doesn't fit our standard. In cases like that I always look at the background of the people making such a claim i.e. "I know better than you" to see what life expereinces they have behind them to support their confidence. In looking at the bio's of the major NRO writers I can find nobody with any real jobs. By real jobs I mean not in journalism or politics. From what I can see they are all professional opinion writers or in the case of Furm add in some speech writing as well. I'm sorry but in my world view an opinion that comes from "books" and pure analysis of writings is worthless. In the real world, in a real jobs, experience with people and making decisions (some of which turn out to be wrong) is what gives you the "cattle" to go with your big hat and big boots. The folks at NRO sure do have a big hat and big boots, just no cattle.

(45) Rob made the following comment | Oct 13, 2005 10:42:14 AM | Permalink

I saw the Matt Lauer interview with Laura Bush, and what the media is now CLAIMING she said, and they are not the same. Yet of course its repeated in here also, not a surprise.

Miers now is being bashed from all sides, most of it entirely unfair including these media distortions, and I will now be surprised if she makes it to hearing

For a good summary of how the media distorted Laura's remark, see the following:


(46) Michael B made the following comment | Oct 13, 2005 10:43:30 AM | Permalink

This blog started out making some specific, if ultimately unconvincing, defenses of Miers. They were both readable and cogent. More recently a marked devolution has set in. For example we're told the age issue was "the single best criticism of the Miers nomination". (Show us a single commentator who expressed this.) Now this.

The Miers nomination will hopefully be pulled or rejected while there's still time to do so. (And yes, time is important. One need only recall Kennedy's preemptive salvos vis-a-vis Bork.) Why? Because the evidence supports that course of action, not because it's some type of rush to judgement.

John Fund, today
Stuart Taylor
Andrew Cline

Many others, reflecting substantive issues and evidence, could be listed.

Also because the constitution begins with "we the people", not 'we the evangelicals' or 'we the business interests', both categories, we've been reassured, Miers will reflect (represent?) on the court. But others, NRO included, want her to be mindful of the constitution on solid constitutional grounds and be ready to lead and counter the casuistries and sophisticates of sundry legal and extra legal kinds he/she will inevitably have to face. Roberts, yes, a Luttig, Brown, Estrada, many others, yes. Miers, given the evidence and issues and challenges, no.

(47) Carl Pham made the following comment | Oct 13, 2005 10:48:09 AM | Permalink

Yes, but apparently not enough "political acumen" to realize this nomination would be a total disaster.

Well, Mr. Gruber, I did say I have no political acumen of which to speak, so I bow to your wisdom on this point. However, inasmuch as this thread began with Beldar's comments on overreaction, would you be willing to define "total disaster" a bit more precisely? Do you mean that if the President does not withdraw Harriet Meiers' nomination that....

(1) Terrorists will attack the United States and thousands will die?

(2) The economy will slump into recession and millions will lose their jobs?

(3) Leadership will crumble in one or more cities, a la New Orleans, and citizens will have to arm themselves against roving bands of thugs?

(4) The President will be impeached, convicted, and sent to jail?

(5) GOP Senators will resign their seats or switch parties en masse, too embarassed to continue their allegiance to the party?

...or, er....

(6) The President's poll numbers will drop 5 points for the next six weeks? Or at least until the tiny attention span of the Chicken Littles in the media (left and right) is exhausted, and the next Sky Is Falling(TM) disaster from the Bush White house trots along?

(48) Drugstore Cowgirl made the following comment | Oct 13, 2005 10:55:51 AM | Permalink

It seems to me that David Frum simply cannot stand Harriet Miers. His first post about her started out by stating that she is a lovely, intelligent person, etc. then very quickly became so unkind that it was pretty clear that he thought her anything BUT lovely, intelligent, etc. NRO's position on this nomination has become so ugly and personal that I no longer go there and am considering cancelling my subscription to NR. Sorry, Beldar but you are obviously a much nicer person than I am because I'm over them.

(49) Rob made the following comment | Oct 13, 2005 10:57:54 AM | Permalink

I GUARANTEE (using that late great Cajun "chef" Justin Wilson's tone) if and when this nominee is knocked out of the box before even getting a hearing - THIS RELENTLESS TRASHING will end up historically as one the most unfair bash-downs in modern history

"Have they no decency?"


(50) Ironman made the following comment | Oct 13, 2005 10:59:46 AM | Permalink

I'ss easy to dismiss the punditocracy on this one, but are we going to leave the President to face the MSM unarmed?

We are going to need them down the road, unless you want them to tag team with the legacy media agaisnt the President

Let think long term, folks..if possible.

The comments to this entry are closed.