Harriet Miers roundup

The arguments over Supreme Court nominee Harriet Miers show no sign of cooling off. Fortunately for those of us clamoring for more information, some of her writings are now available online thanks to That School Up North (Hat tip: The Volokh Conspiracy). I’ve not read them yet, but maybe there’ll be something there that can reassure me that Miers really is a strong constitutional originalist.
The entire SCOTUS nomination process sure has become a mess, hasn’t it? Mark Levin lays a big chunk of the blame for this latest trainwreck at the feet of the Gang of Fourteen, and I have to agree. Paul at Power Line isn’t too keen on this bunch either.
While I keep thinking about this, here’s a roundup of opinions from conservatives on both sides of the fight:

 

Con

 
Charles Krauthammer: “It will be argued that this criticism is elitist. But this is not about the Ivy League. The issue is not the venue of Miers’s constitutional scholarship, experience and engagement. The issue is their nonexistence.”


Daniel Henninger:
“Across these many years conservatives have been creating a structured legal edifice to stand against a liberal trend toward aggrandized federal power that began in the 1930s. Chief Justice William Rehnquist’s “New Federalism,” which devolves many powers back to the states, was one such example. Harriet Miers may share these reformist views, but her contribution to them is zero. Conservatives are upset because they see this choice as frittering away an opportunity of long-term consequence. … A Miers confirmation validates nothing, gives voice to nothing.”


David Limbaugh deflates charges of elitism:
“One wonders whether those crying “elitism” would choose the best available lawyer to represent them if their neck were on the line — in a criminal or civil matter. If they deserve the best in their individual struggles, don’t all Americans in their collective struggle to remain free?
“Picking a justice isn’t about rewarding individuals or satisfying gender, race or diversity concerns. It’s about protecting our sacred liberties. Since the best way to do that is to find the brightest constitutional scholars with the requisite character and sound judgment, then that is precisely what the president should do. That’s not elitism; it’s essential constitutional stewardship.”


Peggy Noonan, who wraps up with these observations:
“I’ve noticed that we live in an age in which judges and legal minds seem to hide their own judicial philosophy from themselves. And that might explain why a Harriet Miers has reached the age of 60 and no one seems to know what she thinks. … Supreme Court justices are more powerful than ever while who and what they are is more mysterious than ever. We have a two part problem. The first is that no one knows what they think until they’re there. The other is that they’re there forever.”


Bill Kristol, who called for Miers to withdraw on this morning’s Today Show.


Professor Bainbridge and his baseball analogy


Instapundit isn’t impressed:
“Bush raised the bar with Roberts, and then, having set the stage brilliantly for a McConnell, gave us a non-McConnell. Miers might turn out to be a great Justice, of course, but at the moment there’s absolutely no reason to expect that. Hope, maybe, but not expect. This isn’t the blogosphere’s fault, but the Administration’s.”


Confirm Them, where you shouldn’t miss this post, with this key graph:
“All we know is that we must trust the President who tells us that on a checklist of issues, Miers will check the right box. What about the issues that aren�t on the checklist? What about the issues that do not exist now, but will in ten years? By what standard are we now to form an opinion by which we can predicate our current support of her? To which judicial philosphy is Harriet Miers anchored so that she will avoid drifiting like Anthony Kennedy? For now, the President seems to tell us we�ll know it when we see it, but trust him.”


Ann Coulter (who even opposed John Roberts’ nomination, so this was a guaranteed punching bag for her)
Pro

Beldar: just start at the top and keep scrolling, but don’t miss this response to Krauthammer:
This is not an argument in favor of mediocrity. This is an argument in favor of adding some different kinds of smarts to the Court. Until fairly recently, it was the rule rather than the exception to draw some new Justices from the ranks of practicing lawyers who’ve been successful and who’ve demonstrated character, devotion to profession and community, and sound judgment as measured in a wide variety of contexts. I respectfully submit that if you think your menu has only three choices � circuit judges in column A, law professors in column B, and law professors turned circuit judges in column C � then you are indeed being either elitist, unimaginative, or both.” (emphasis in original)


Hugh Hewitt, the chief cheerleader for the Miers nomination. Just keep scrolling; he’s been prolific this week. I don’t buy his worries over an impending electoral implosion for the Republicans if Miers’ critics keep complaining:
“There are many persuasive reasons beyond “Party” to support Harriet Miers, but “Party” ought to have at least tempered some of the most strident critics of the nominee. Nothing lasting will be accomplished with SCOTUS unless the GOP remains in power beyond 2008 and 2012. If the current seven veterans linger, and the GOP is crippled because of intra-party quarrels, how will President Hillary’s and Vice President Obama’s justices rule? There is a great deal to be said for “Party,” including the willingness to accept that the good must not be the enemy of the perfect, and that at least 25% of the time you are going to be disappointed with the Party’s decision.”

“The debate ought rather to be an occasion for asking “What does the president know that I do not know?” and even, “Has the president earned my trust in this area?” … The series of posts she has held — Texas Bar president, Dallas City Council, and especially managing partner of a large law firm — all speak to her abilities which disappointment seems to forbid critics from recognizing. There are many hundreds of thousands of GOP faithful who have held similar posts. How wonderful to telegraph to them that their efforts are fine, for a certain class of people.”


President Aristotle offers nine reasons to support the nomination.


Marvin Olasky offers a variation of “c’mon, she’s an evangelical Christian, she’s conservative” … to which I say “Jimmy Carter’s an evangelical Christian.”

I’m still willing (barely) to give Bush the benefit of the doubt on this nomination, but my support keeps eroding. After my inital reaction (“Harriet who? What happened to Luttig and McConnell and Alito and … ?”), I moved toward a position reflected in Fred Barnes’ ambivalent column on Monday:

If all goes well, Harriet Miers will turn out to be a less impressive version of John Roberts: that is, a judicial conservative, or constitutionalist, who will cause the ideological balance on the Supreme Court to shift to the right. … All she needs to do is come off as a credible mainstream conservative, avoid the questions that Democrats will try to trick her on, and persuade senators she’s not merely a Bush crony. That accomplished, she should be confirmed.
She’d better be able to do this. If she can’t — if she’s not really a conservative — the political effect will be to shatter President Bush’s still-strong relationship with his base. The love affair will be over. The president will have dashed the hopes cherished by conservatives for a conservative Supreme Court. And he will be far weaker as a national political leader as a result.

Conservatives shouldn’t throw up their hands in despair, at least yet. They should wait until they hear from Miers as a witness before the Senate Judiciary Committee. It’s then that we’ll begin to find out if Bush was correct in his view that she’s the person to fulfill the dreams of so many conservatives and finally shove the Supreme Court to the right.

President Bush had better offer more than “I know her, she’s smart, she’s conservative … trust me.” And he’d better offer it soon, because movement conservatives like me are getting ready to jump ship over Miers.

3 comments

  1. The American Mind

    Miers Sounded Like O’Connor

    A commenter brought this Knight-Ridder story to my attention: In what appear to be some of her only public statements…

  2. Aime Watts

    I’d like to address the comment David Limbaugh made about the Supreme Court being an unchecked power. It seems to me that there was one President that addressed this issue quite succinctly by saying, “let them enforce what they said.” (I’m sorry, but his name eludes me at the moment, but that’s not the important bit.) What is quite important is that this President recognised his role as Chief Executive Officer, and as such no law or judicial fiat gets enforced except through his office.
    More Presidents should pay more attention to that role. No law or Court decision has any weight or merit beyond that. Insofar as that goes, the President is the check over Constitutional Creationism, regardless from which other branch it comes from.
    Now, as to the President’s selection of justices.
    The Constitution is silent as to qualifications specific to that office, therefore any person of good character and ability should be eligible. Nowhere in the Constitution does it even imply that jurists should be lawyers, for example. As we have a government of the people, by the people, and for the people, any of us should be eligible to fill that post.
    It is difficult in the extreme to be elected President and again to be reelected, the choices for these appointments are his alone. If people want different people selected, let them get elected President. Appointing Justices is the privilege of that office alone.
    Anyway, it has become painfully clear that where a person stands before they become Justices on the Supreme Court is no indication whatsoever where they will stand once they are confirmed. Let the dice fall where they will. At least Bush (43) knows this person much better than his father knew David Souter, that RINO bastard!
    As out of control as the Supreme Court has become in the past few decades, the Congress has usurped much more power than the Constitution ever hinted that they could wield, for scores of years, and have become a danger to all of our freedom. They are the bigger problem and the cure, the only cure, is to remove every single incumbent for the next twenty years in order to purge the elitism that prevails in that once August body.
    Our once great government is very sick; hopefully the information age will become a cure. Let us pray that it can be cured. Let us pray.