Centerfield

I think that there should be a minimum threshold of pre-eminence, probably in the legal field, for someone nominated to the Supreme Court. IOW, they should have distinguished themselves with their peers and hopefully somewhat in the eyes of the public.

The more unknown and less distinguished the nominee, the more they should be willing to be extra forthcoming in their job interview. Not going to happen, of course, though. I'm going to go more cynical and say that I find Jeremy's suggestion of an altar lamb very plausible. It's strategically clever. The way I figure it, the democrats have to know that they can really only get away with one filibuster.

Given this, she may well get confirmed if the democrats are smart enough to figure this for a sucker move. I can't see them getting any mileage out of a fillibuster of a nonentity, so this means she fails to be confirmed only if she can't muster sufficient GOP support.

There is of course, the possibility that this is, again, all explained by the Bush as Romantic Conservative hypothesis. Maybe Mier just feels right to Bush, and he puts a premium on loyalty. If people are loyal to him, it makes him feel that they'll do the right conservative thing when duty calls.

Posted by: bk at October 3, 2005 09:48 AM

Finally, on a cynical note, I wonder if Miers is not a sacrificial lamb designed to draw fire on qualification grounds … i.e. if Democrats oppose her and sink the nomination, Bush then turns around and nominates a very qualified, but very ideological, alternative. I don’t think this scenario is likely, but wanted to just mention the possibility.

I think you're closer to dead on target than you think, Jeremy. By putting up a nominee that has no judicial track record, Bush leaves the Dems with the unenviable chore of opposing her by beating up on her in public. A "morality play" tactic to bring out many useful sound bites and much political posturing going into the 2006 election season.

Politics ain't beanbag, the contest grounds aren't marked out like a football field, and there are no referees. Miers looks like a ringer being sent into the game. She's no lightweight. She may lack time on the bench, but anyone trying to steamroll her in hearings may get their ears clipped and strung, and their scalp handed to them. She is one tough and capable attorney.

Posted by: Tully at October 3, 2005 10:27 AM

In baseball terms that Mr. Bush would be familar with, strike three looking for out three!

Having a nominee with zero pedigree is like not even caring. If he is trying to provoke the nuclear option, I don't think she will be able to do it. I find it difficult to think that a fillibuster would be nessecary.

I can't wait to see what the ABA will say. She has zero experience in Constitutional law. I doubt she gets out of committee, let alone to the floor. Hope O'Conner is ready for another term.

Are all of Bush's advisors such self centered egotists that the only people they can recommend are themselves?

Posted by: Jim M at October 3, 2005 10:36 AM

I don't necessairly think she's a sacrificial lamb. The Dem's are going to have a hard time ripping her apart, especially after Reid asked Bush to nominate her.

Having a household name isn't a qualifier for the Supreme Court. If the Dem's decide to oppose her, my guess is they'll go for the "Can you believe that the President would appoint an Associate Justice who has never judged a case in her life?" line. Of course, this certainly isn't the first time we've had Justices with no prior judicial experience--Rehnquist and Powell are the most recent to my knowledge. Hell, at least she graduated from law school--something Justice Reed could never say.

I think it's just another example of Bush figuring out a way to side step the opposition. We'll see if it works.

Posted by: AR at October 3, 2005 10:51 AM

It seems to me that the first order of business for Bush is to get conservatives on board. From what I have read so far this morning, that is going to be more difficult than you might think.

Posted by: Todd Pearson at October 3, 2005 11:03 AM

Being as young as I am (a junior in college), I have little experience in evaluating Supreme Court nominees, but I do have a little more than a basic understanding of how the Supreme Court works: you need justices who show exemplary skill in arbitration and clear-headed decision-making.

Given the recent trouble Bush has had getting judicial appointments past the Democrats, I cannot fathom how this appointment could be anything but posturing. I mean, given the looooooong list of over-qualified candidates, why would Bush take a chance? I mean, if I remember correctly, many of the senate Democrats said last summer they wouldn't have a problem with Alberto Gonzales as a Suprem Court justice-- so why take the chance on a no-name?

I have a problem with suggesting that this one particular woman was nominated because of loyalty. I'm sure there's a good number of subordanate candidates from the long list of possibilities. Like, again, Alberto Gonzales. But maybe he has already been paid his dues by getting a cabinet post. Who knows.

As far as I can tell, this is a very thinly-veiled attempt to do something tricky. Maybe it's an attempt to get a closet ideologue on the bench, maybe it's an attempt to bring out the nuclear option and make the Democrats look stubborn and unreasonable, I don't know. I don't think anyone knows for sure (how could they?). But think there's one thing we can all agree on: this is probably not a selection of the most qualified candidate-- there is more to this than meets the eye.

Posted by: Art at October 3, 2005 11:03 AM

Being as young as I am (a junior in college)

Dude, you should still be sleeping, not thinking about the Supreme Court.

The Dem's are going to have a hard time ripping her apart, especially after Reid asked Bush to nominate her.

That's the first I've heard about that. What's the story?

Posted by: WHQ at October 3, 2005 11:21 AM

Yeah, I don't know what caused her name to be picked, but I can't wait to see what the ABA says about her.

Posted by: Literally Retarded at October 3, 2005 11:23 AM

I know how very egotistical this sounds, but the objections to Ms. Miers voiced on this thread so far seem to be a typical lay reaction. I don't care about Ms. Miers's personal views, because, while judges may be influenced by personal experiences, judges do not consciously determine cases based on personal preference (with some minor exceptions that prove the rule).

The argument that Ms. Miers has never been a judge is no argument at all. From a judicial standpoint, appellate judges have nothing in common with trial judges; if a president nominated a trial judge to the Supreme Court, the argument that the nominee had no judicial experience would go away, but the fact remains that what a trial judge is at the opposite end of the judicial spectrum from what an appellate judge is (with limited exceptions when it comes to magisterial and bankruptcy decisions, for example). You know, quite a few Supreme Court justices have no prior judicial experience. And, in point of fact, a sizeable constituency of the appellate practice bar had been hoping for another nominee with a rich and recent practice history, rather than someone who had been on the bench for a while. After all, 7 of the Associate Justices have been on the bench for a while.

Also, I disagree that Supreme Court nominees should have household names. Law is a dry (which is not to say unrewarding) profession, for those of us who are not Greta van Sustern or the late Johnny Cochran. Picking a nominee with cachet to a lay audience is probably a sign that something is wrong. Very wrong. After all, there's got to be a reason that person's name got into the press to work its way into the mind of the average American, and most of those reasons are bad ones.

Ms. Miers is not a sacrificial lamb. Sen. Reid suggested the president nominate her. Suggestions that she is a sacrificial lamb seem to me to be grounded on an extreme cynicism (and I'm the jaded one) that craves some sort of nomination battle--the sort of nomination battle avoided with the nomination of Chief Justice Roberts, and is likely to be avoided here. I believe we know when we have a good nominee: when he has an excellent reputation among the bar in which he practiced (as evidenced, for example, by election as president of his state's bar association); when he has a keen and curious intellect that leads him to explore new theories rather than rely on a staid bag of tricks (which we will be able to observe during the nomination hearings); and when the only complaint available to the opposition after the hearings are over is, "We don't know enough about his personal views."

Ms. Miers appears to be a quite excellent nominee, in spite of those who want to know more about what her personal beliefs are, and in spite of those who wanted a household name, and in spite of those who were craving a fight that it now seems they will not get--again. Of course, the FBI background check hasn't been completed, and the Senate hasn't tested her out for quick-thinking and intellectual soundness yet, as they are constitutionally responsible for doing. But it's far to early to criticize this nomination just because it wasn't the one predicted above the fold in the daily press.

Posted by: The Jaded JD at October 3, 2005 11:27 AM

They bunted.... That's it. They made the safest pick possible. I am disappointed. There is nothing much we can say about Miers, but still, I think this is carrying the appointment of your friends to high places paradigm a bit far. Isn't it fair to say that there are clearly better candidates for this job? I think the sacrficial lamb theory is plausible, but I don't see Democrats opposing this nomination. I have to say that Jaded's post is very interesting, and it has at least made me think.

Posted by: Mathew at October 3, 2005 11:48 AM

Well, she donated money to Al Gore and the the DNC in the late '80s; that's probably why Reid set her name out. I agree with Mathew; the WH bunted on this one.

Posted by: Blue Jean at October 3, 2005 12:03 PM

Focusing too closely on the pure meaning of "sacrifical lamb" is IMO beside the main point. Which is that politically its a very clever strategic choice, for the reasons mentioned above. She can only potentially become a sacrifice if the democrats decide its worth throwing down the gauntlet here. I don't see that Republicans have much to gain by helping derail the nomination, because if they did so by echoing the "we don't know enough" line with the "she may not be conservative enough" refrain, that plays towards a future showndown over an ideologue. So IMO they are sort of bound to go along, absent a smoking gun.

I think that "bunt" is a good analogy. It's possible that these recent appointments result in Bush going down among the con-christian right as a cowardly compromiser spitting the leadership bit at opportunity time. But ultimately that case will be made or not on the basis of the noms' future rulings.

Bush or his advisors may well be either smart enough or lucky enough to know that it's not worth losing figuring out how best to please the insatiable. The only noms that could have fully pleased the CCR are of the Roy Moore-Pat Roberston flavor...

Posted by: bk at October 3, 2005 12:16 PM

Mathew, Blue Jean - I think the "bunted" comment is about the measure of it. I was merely making the cynical sacrificial lamb argument as a possibility, but the more I see of things, the more I think it's likely that this is going to be a relatively smooth confirmation fight. But yes, Mathew, I quite agree, the "friends in high places" thing seems rather apparent.

Jaded - Sorry for the "lay" view, that's why some of us don't have law degrees. As always, we appreciate your "non-lay" views - but realize that most of us out here don't look at the world through lawyer-colored glasses. Personal views may or may not factor into judicial decisions, but they certainly factor into confirmations. And we have no idea what Miers thinks about really anything, personally, judicially, or any other way. And that's a little unnerving.

I'm hardly criticizing her because she's unexpected, and I don't care that she's never been a judge - in fact I think that's probably a point in her favor. I just don't think she's got the kind of resume that would normally put her in contention for a Court seat. I'd like to hear more about why you think she's an "excellent" nominee. I think she's probably a "safe" nominee, but I'm not sure the two are the same thing necessarily.

Like I said in the post, I'm not making any snap judgments here, I'm certainly going to watch carefully and see how the hearings go and watch materializes. I see no reason to jump up and down in opposition just yet, but I also see no reason to jump for joy. Seems, all in all, like a very blah choice to me.

Posted by: JBD at October 3, 2005 12:17 PM

I guess I hold that a Justice of the Supreme Court should be a more proven entity. I don't think one has to be a sitting judge or have been on the bench. However, I think a well rounded practice in both criminal and civil law or academic work should be a heavy consideration in those who do not have bench experience. I am hoping more information will come out on Ms. Miers past work.

I do suspect that she will be somewhat non-cooperative with the committee based on her close ties to the President, though.

I consider this a miss because there are so many more choices that have just as much or more qualifications. Now, if she comes out and is a little open with the comittee, which I think a clean slate type nominee has to be versus a John Roberts who had a somewhat defined trail, then she may do ok if she presents herself well. However, seeing her described in some places as a "Pit Bull" and showing a determined loyalty for the President does not strike me as qualities of a Justice of the Supreme Court. Nor do these disqualify her.

Until more of her philosphy is revealed, I have to lean on my own philosphy of vote no until the candidate is proven. In this case, I feel the burden is on the nominee to prove herself worthy.

Posted by: Jim M at October 3, 2005 12:18 PM

Ms. Miers appears to be a quite excellent nominee

I don't mean to pick a fight here, but could you tell me what you're basing this on? Her credentials, from what I can see, is that she's a Team Bush insider, and little more. I realize it probably takes a lot to be a Team Bush insider, but I have yet to see why she is, except that she has ties to Texas.

This brings up another point that has been eluded to but not directly brought up yet today: is her closeness to the president a conflict of interest? I realize politics is all about rewarding loyalty with positions of power, but when the president is good friends with a Supreme Court justice, how can we be sure there is a separation of power?

And let me make clear I would disagree with any president ever appointing a close personal friend to the Supreme Court, be they Democrat, Republican, or, God willing, independent.

Posted by: Art at October 3, 2005 12:26 PM

Keep in mind that the person who nominated her does not have a law degree, either, and is, in that sense, a lay person. I guess that make the lay point of view one to consider.

Posted by: WHQ at October 3, 2005 12:56 PM

Let's review Ms. Miers's credentials. Are they as stunning as the Chief Justice's? No. Not many lawyers have his credentials. (Would the Chief Justice be a worse member of the Court if he hadn't had those two short years on the D.C. Circuit? No. So the lack of prior judicial experience isn't a big deal. After all, Judge Roberts was on the D.C. Circuit because he was smart; he didn't become smart because he had sat on the D.C. Circuit. Don't put the cart before the horse.)

I. Peer review

1. First woman elected President of the Dallas Bar Association (1985).
2. First woman elected President of the Texas Bar Association (1992).
3. Elected president of her law firm, Locke, Purnell, Rain & Harrell (1996).
4. Nominated to be chair of the American Bar Association House of Delegates (the #2 spot), but withdrew when appointed Assistant to the President (2001).

Obviously, she has earned the respect of practitioners who have worked with and against her, including the partners at her firm while she was in private practice.

II. Cronyism

1. Yes, it is true she has been an Administration flunky since the president's inauguration. Assistant to the President and Staff Secretary, 2001-03; Assistant to the President and Deputy Chief of Staff (a/k/a Josh Lyman), 2003-2005; Counsel to the President, 2005-present.
2. General Counsel, Bush Gubernatorial Transition Team, 1994.
3. Chair, Texas Lottery Commission, 1995-2000. Much has been made of this seemingly patronage appointment. Bear in mind, however, it was a volunteer position held while she was practicing law for a living. She also cleaned up the commission, by all accounts.
4. Gave $250 to the Clinton campaign in 1991. Gave $1000 to the Gore primary campaign in 1988. Gave to the DNC during Bush-Dukakis, against the president's father. And this is a president who holds grudges.

Whether Ms. Miers is a conservative who remained a blue dog Democrat until experiencing a "come to Jesus" GOP epiphany during the Clinton Administration is not known. But unless that's exactly what happened, it looks from the record like Governor-elect Bush (or more likely, his transition team director) hired a lawyer reputed to be among the best in Texas for his transition team. After personally interacting with her as counsel, then-Governor Bush appointed her to do a tough job at the TLC. After she proved her mettle (for free, if the job was volunteer), his confidence in her abilities was only confirmed. So he took her to DC with him in 2001, despite her prior Democratic blasphemy.

An Administration insider she may be, but the record doesn't show that she's another Michael Brown, a jockey club manager turned into FEMA director. She appears to have substance, which coincides with her proximity to the president--rather than merely having proximity without substance.

I've never been to Texas, so I don't know her reputation there. Is it possible she's got the brain of a baked sweet potato and merely went from organization to organization, elected from position to position, simply as the trophy woman? Sure. I don't think it's likely.

Sandra Day O'Connor was not widely known outside of Arizona when appointed to the Court by President Reagan. If we ignore the fact that Ms. Miers is an insider (which is how the president knew of her to nominate her), and imagine that her name was put forward by the next GOP president, instead of the one she works for now, would she be objectionable? I don't think so. So without some demonstration that she has no substance, I don't think her role in this Administration should be held against her.

Posted by: The Jaded JD at October 3, 2005 01:05 PM

I think she's got some impressive credentials as an attorney, and anyone who thinks they're from "trophyism" is in for a big letdown.

And yes, she was a Democrat through the 1980's. Like so many others. Which adds more weight to seeing this as a shrewd strategic pick. Her personal philosophies as they might apply to judicial interpretation are best known by those closest to her.

Some conservatives are already whining because they didn't get a blatantly right-wing nominee. Note that I did NOT say "conservative" nominee. Miers may be a rockhard conservative--I don't know. She does not appear to be a "winger," and I count that as a major plus.

Posted by: Tully at October 3, 2005 02:29 PM

I always enjoy your expert opinions Jaded. I'm not being facetious.

Posted by: Adam at October 3, 2005 02:34 PM

It will surprise absolutely no one that I am not pleased by this nomination. ;) As Brian artfully put it recently, she seems to be "just another flavor of dead wrong."

Rather than unnecessarily swelling the comment pages at Centerfields, I will merely link to comments I posted at my own blog.

Posted by: Simon at October 3, 2005 02:34 PM

I hate this pick, but only because I think it is a wuss move politically. On a good note, Red State is foaming at the mouth, so this may not be so bad after all.

Posted by: Mathew at October 3, 2005 03:09 PM

Well, this is very contrary to all that I had predicted... at least I think it is. Frankly, I was saying "Harriet Who?" when I found out. I still don't know enough about her to actually say whether or not I was wrong in my predictions or right, but I'll be anxiously awaiting the verdict.

Posted by: CleverWes at October 3, 2005 03:12 PM

Wes,

You're not alone. You (and everyone else) should read Joel Achenbach, if only for the brief moment of levity.

Posted by: The Jaded JD at October 3, 2005 03:31 PM

Something tells me if she had attended an Ivy League or East Coast university or law school that some of the "lack of quality CV" arguments wouldn't be as strong.
She will be confirmed and will, like Chief Justice Roberts, make the Democrat Senators look like lightweights.

Posted by: betweenmantleandmaris at October 3, 2005 03:57 PM

Jaded;
Your gonna have to change you name. Of all of the posters so far you seem the LEAST jaded.

I have to admit when I heard the name and of her anonymity and lack of judicial experience I played out the following scenario: Meets with with members of Judiciary committee and receives polite public comments from the Democratic side with warnings "to answer the questions". At hearing doesn't answer the obvious questions by giving the now standard line about not specifically answering questions that could come before the Court. For some this will guarantee/justify the "no" vote. Now, if she does answer the questions you're not supposed to answer she guarantees more "no's" (from the wavering Democrats or the wavering conservative Republicans). Hence, no benefits to answering them so she won't answer them.

I don't have any opinion of the nominee but I have to admit it seems this blog is more interested in a "fight" (i.e. the "bunt" analogy).

Posted by: c3 at October 3, 2005 03:58 PM

Jaded--I think this is probably the first time I've agreed with you down the line. And, yes, Achenbach's column is pretty funny.

Let's just talk about the cronyism charge that I've heard creeping up. I listened to Rush to gauge the far right's reaction (I'll discuss that in a minute) and he played a montage of various talking heads. "Crony, crony, crony..." It's like they have no originality. If a person is qualified for the job, are they to be bypassed simply because they happen to be close to the President? Hey, at least he hasn't appointed his brother Attorney General.

I mentioned Rush...he's not happy. Bill Kristol went as far as to say he's "depressed." I thought about sending up a supply of Paxil, but somehow I think he'll pull out just fine. I do find it amusing that the far right wants to fight this. How are they going to fight it? Who are they going to use? As conservative as many Republican Senators may be, they aren't going to get involved in any effort to derail a Supreme Court nomination from a President of their own party just because James Dobson gives him the thumbs down. Sure, there's a handful that are rabid enough, but do you really want Coburn and Brownback as the public face you show to the rest of the country?

Posted by: AR at October 3, 2005 03:59 PM

I can't believe that no one here has seen through Harriet Miers' sinister plot to donate to Al Gore's campaign to seem more moderate when appointed to the Supreme Court years later. You're all so blind.

Posted by: WHQ at October 3, 2005 04:27 PM

C3,

It is not about wanting to see a fight. We are going to see fighting anyway, between the President and the base of his own party, which has become apparent. I just wish it was a fight over a nominee that was worth it, and I am not sure this one is. I am not sure she isn't of course. More vanilla from what is becoming a bland Presidency, when the only thing W originally had going for him, IMO, was his ability to think big... Greatness comes when we swing for the fenses... Of course, if you strike out than you are a miserable failure. I guess when it comes to something as important as the Supreme Court, I would rather the President lose big than lose because he was afraid to play, but then again I never voted for this President because he got my blood pumping.

Did anyone see that Schumer said this had the potential to be a consensus nominee? You got to give W credit. He is about to do what nobody said he was capable of doing: fill two Supreme Court vacancies without divisive fight. However, I leave you with this: is not fighting worth a mediocre Supreme Court Justice?

Posted by: Mathew at October 3, 2005 04:36 PM

LOL...WHQ. I donated $5 to Jerry Fallwell when I was a kid, but the religious right still doesn't like me. Where did I go wrong?

Posted by: AR at October 3, 2005 04:37 PM

I don't care about Ms. Miers's personal views, because, while judges may be influenced by personal experiences, judges do not consciously determine cases based on personal preference (with some minor exceptions that prove the rule).

If I shared for an instant that exceedingly rosy view of how Judges operate, I would agree that Ms. Miers' personal views do not matter. Judges should not rule based on personal preference, but history has frequently shown that they often do.

Ms. Miers is not a sacrificial lamb. Sen. Reid suggested the president nominate her.

I see. So Harry Reid's seal of approval should be taken by those of us who do not see the court in quite the same terms as Teddy Kennedy and Chuck Schumer as a good thing? Why so? Why not the kiss of death?

Ms. Miers appears to be a quite excellent nominee, in spite of those who want to know more about what her personal beliefs are

Well, we're clearly operating under a very different premise of what a good nominee is. A good nominee to the Supreme Court, to my mind is someone who is demonstrably has a clear record of process-oriented originalist judicial philosophy. John Roberts did not meet that standard, despite his clearly stellar grasp of the law. Ms. Miers likely does not have a Roberts-scale intellect, but it is not this which gives me pause; it is the fact that no Republican President - this President in particular - has earned the right to say "trust me" when it comes to nominating Supreme Court justices. I'm not rejecting her out-of-hand, I'm saying I want to see evidence that she understands that the Supreme Court is not a common-law court; that she believed that the original understanding of the text, not precedent, controls where they conflict. I want to see evidence of how she sees the role of the Judge - do they apply the law or make it? Posted by: Simon at October 3, 2005 05:25 PM

It's ffunny how "cronyism" suddenly appears with the hard right. I guess the embarrassment of Mike Brown (though I never thought the man as that) has caused the right to develop a weird case of Tourette's.
You would think that the Beltway actually hired their staff the way they do at McDonald's - fill out an application, interview and show up. Why is it only now the concept of cronyism becomes a complaint? Where was it last year? Or during the clinton administration?

Posted by: Rachel at October 3, 2005 07:14 PM

Simon,

The Supreme Court of the United States is a common law court. It hears cases arising from the common law, as it hears cases arising from statutory law, constitutional law, and equity. I appreciate that your understanding of the Court is not the most robust; neither is mine. But let's do stick to terms we understand. We could argue for ages the difference between law and equity, but there's no point. Judges both "make" law (though a happier term is "discover" it) and apply it.

That Senator Reid suggested Ms. Miers is offered only to illustrate the improbability that the president nominated her as a sacrificial lamb, not that she will make a good justice. If the president wanted to offer a nominee he hoped the Democrats would villify, in order to withdraw that nominee and replace it with someone more conservative, it seems unlikely the president would have selected a nominee the Democratic Leader suggested in the first place.

Your opinion that judges often rule based on personal preference is unsubstantiated. (Granted, you didn't say that your opinion is that judges rule based on personal preference more often than not, so I won't respond to that different argument.) I will say that, without citing some sort of empirical evidence, you argument falls a bit short in my view. After all, having had no legal training and having never appeared at the bar of any court, you don't have the credibility of my own experience clerking for, arguing and trying cases in front of, and benefiting (or not) from the orders of federal judges. Obviously, that's a personal belief--you may be more credible to others than I am. But you're sitting there on the outside trying to tell me, on the inside, that the system "often" fails, while that is inconsistent with my own personal observation and experience.

I'm still not persuaded you know what originalism means (after lengthy exchanges with you on that subject on other threads here), so I'm not going to debate with you about whether Harriet Miers is an originalist or not, or whether we even have the data to know. You seem to be charging out of the gate waving the banner that she is not, though, and I believe that to be premature. And while you may not trust the president, and he may not have earned your trust, Article II makes that rather moot: the president nominates whom he likes. So the fact that the president has faith in Ms. Miers is rather more critical a place to begin the analysis of whether she is a good nominee than whether you have faith in her.

Posted by: The Jaded JD at October 3, 2005 07:49 PM

I think the cronyism charge may have more traction then most people think. Brown/FEMA has put this on the public radar. Plus, I would pay close attention to the Plame case in this regard. I don't know if anyone caught this but yesterday Stephanopolus said that according to his sources both Cheney and Bush discussed Plame. If it turns out that this is pre Novak column then the Democrats can literally bludgeon the GOP with it. As it is they may have a point by noting that Miers is too close to the President and that impartiality could be a problem in cases involving the executive branch.

Posted by: Marcus at October 3, 2005 09:12 PM

The more I find out about her past work, the more I have to say no. Unless someone can find me some instance where she has a background in criminal law, I can not feel that she is a good choice.

Now, she may have an excellent or even fantastic understanding of criminal law; but has never had a chance to show it. I do not think that the Supreme Court is the place to try to prove it.

With her lack of any time on the bench AND lack of anything that I can find that shows work in criminal law, I do not think she should be confirmed.

There are many others who have just on the surface much better qualifications. A justice on the Supreme Court should not be there just becuase he or she knows someone. If she was not close to Bush, she would never have been put forward. Not calling cronyisim, just stating what appears to be very close to, if not, fact.

Posted by: Jim M at October 4, 2005 08:54 AM

Jim,

But isn't that how multitudes have gotten to where they are? As the saying goes, "It's not what you know, It's who you know." That's just reality. You can have the most brilliant mind in the world, but if you don't make the effort to know the right people, you may never have the chance to share that brilliance on a larger scale. So she's close to the President. That's a disqualifier? Guess Jack should have never named Bobby AG.

Posted by: AR at October 4, 2005 09:43 AM

FWIW, a solid 3/4 of the GP, based on an unscientific CNN poll, think previous experience as a judge is a necessary qualification for a SCJ. Even though this poll is unscientific, I don't think these results could be very far skewed, at least not towards the idea that it's NOT a necessary precursor.

So while one can make the argument that it's not essential, and cite good precedents, 3/4 of the GP doesn't buy it.

The big question for me here is this: what would be the democrats' motive for opposing this nomination? Simple lack of trust? Would their failure to oppose this nom on cronyism grounds come back to haunt them/ If you ask me, the democrats should say very little and let this play out on the GOP side...

Posted by: bk at October 4, 2005 09:51 AM

AR, Of course you have to know the right people. However, when it appears to be the major reason a person gets nominated, I seriously question it.

If someone can find me some cases where Ms. Miers has done some criminal law work, be it pro-bono defense, prosecution or papers, I would be a lot less apprehensive about having someone who may not be a proper fit as a Justice.

The majority of Justices who have been nominated without serving as judges have had this experience. Her government experience consists of the Texas Lottery Commision and the Dallas City Council. Not the type of experience that seems to outweigh this lack of criminal experience. Maybe if she had served in a state house or in Congress, I could be more placated.

She may be the most fantastic mind on the face of the planet. However, so could the White House janitor for all I know. There is no proof available that she is qualified, IMHO, for this position. I am open to hear her comments; but I feel the burden of proof is going to have to be on the Ms. Miers to prove her worth and not on the Senate to proves she isn't.

Posted by: Jim M at October 4, 2005 11:40 AM

I feel the burden of proof is going to have to be on the Ms. Miers to prove her worth and not on the Senate to proves she isn't.

Jim, I don't get this comment, since it seems to presume that there is going to be an organized opposition rising. Ms. Miers isn't going to have any burden of proof unless there's organized opposition. Who do you think this is going to come from? Do you think democrats are going to oppose this nomination despite the fact that Senator Reid has previously supported the idea? Or do you think that the GOP is going to oppose its own President here? Neither of these seem likely to me.

I can see some democrats raising objections to cover their flanks on charges of cronyism and on the possibility of a non-forthcoming ideologue, but my guess is that somehow democrats decide these objections are worth overlooking in the hopes that she's fairly moderate, and that it's not worth risking someone worse. That would leave GOP members throwing bombs at their President. That's very unrepublican. So what exactly is your hypothesis for Ms Miers being required to prove that she's qualified beyond her existing record of general legal competence?

Posted by: bk at October 4, 2005 11:58 AM

bk, I said that was how I felt. How I feel and what happens are probably two completely different things.

I am talking in more abstract and not political. She will probably end up being confirmed even though I do not think she is qualified.

It is not a Republican/Democrat thing to me. It is a simple matter of is she qualified to be a Justice on the Supreme Court of the United States of America? In my opinion, which really doesn't matter a hill of beans, she isn't unless I can learn more about her. I will probably write some letters asking my Senators to vote no. That will be as far as my opinion matters. I only hope some Senators do share my opinion and push for the answers. I doubt it happens.

Posted by: Jim M at October 4, 2005 12:25 PM

The bottom line is that Conservatives did not vote for Bush and the GOP to put more Justices on the bench that could turn into a Stevens or a Souter. If this turns out the way I'm worried it'll turn out then the GOP may start getting thier ears boxed in future election cycles as conservatives (like myself) get disillusioned and decide to remain home or start making protest votes for minor party candidates.

JD, Constitutionaly the point may be moot... but politicaly it's not.... as long as Presidents and Congress-critters require VOTES to get into office in the first place, the choices they make WILL have consequences for them in future.

Basicaly the GOP is telling me they don't want my vote in future......and at this point they may very well not get it.

Posted by: cengel at October 4, 2005 12:42 PM

I'll be honest, I still don't know whether I support her or not. I'm going to keep my mouth shut until the senate starts doing its job and I can hear from the information that they gather. Right now, she's too much of a ghost for me to find enough solid evidence on her.

While I think both sides of the argument have made good points, I'm still struggling to find the weight behind either view. Anyone else having the same struggle?

Posted by: CleverWes at October 4, 2005 12:45 PM

Yep!

Posted by: WHQ at October 4, 2005 12:58 PM

Yep. But I don't obsess over it.

Viewed from another angle, the nomination is a strategic one designed to support the more moderate & centrist Republicans in the mid-terms next year. The more right-wing (and left-wing) congresscritters are pretty much in "safe" seats, it's mostly the moderates & centrists that have to fight for re-election. The wingers can rant and rave and keep their support base up, the more middle-of-the-roaders get some cover.

Two years after that when the Presidential election rolls around again, only the previously hard-core committed will remember or care all that much. Unless Miers turns out to be another Ginsburg or Thomas. Take your pick. Everyone will be pumping up the New Dog, not tearing down the old one. In any case, Bush won't be running, and the anger will still end up directed at him and not the congresscritters. And those on the wings will still have much the same choices--either stick with the devil on their side, or simply stay home. In which case the least dis-spirited party wins....

Posted by: Tully at October 4, 2005 01:09 PM

Gee, after listening to you talk, Tully, I suddenly feel that life is meaningless...

Thanks a lot.

Posted by: CleverWes at October 4, 2005 02:14 PM

I think it's worthwhile to make a distinction between "unqualified" and "not the most obviously prestigious." Miers seems to fit better to me in this latter category. She was President of the Texas bar, counsel to the president, and seems well-regarded personally, though her resume doesn't include the sort of nuts and bolts experience check-offs as, say, Roberts.

It seems reasonable to me that she's probably able enough to sit on the SCOTUS, follow the arguments, review the cases, and have substantive input. Seems to me its likely she's smart and passionate enough to meet the responsibilities of the office. Those on the right who are complaining about her lack of qualifications seem primarily concerned with a lack of evidence that she's ideologically sufficient. Tough toenails. She can probably do the job, just not in the way you want her to do it.

But I do agree with Cengel that this nomination probably does send a message that Bush is currently unwilling to fight the grand battle they've been spoiling for. The reasons why he may be currently unwilling to do this are worth speculating over, IMO(like say, wants moderate support for the war and for SS reform after 2006 mid-terms), but I don't think any such rationales will appease the irritated faithful.

I think the currently disgruntled feel like they've been deprived of the f__k-you moment to which they believe they are entitled. I don't think they are wrong about being deprived, but I don't think they are in fact entitled to this moment. It'snot enough of a direction change for the faithful, but IMO its a decent tack.

Posted by: bk at October 4, 2005 03:11 PM

Can she do the job? Of course she can. In all honesty, anyone with a law degree should be able to "do the job."

The Supreme Court is the highest court in the land. It's "qualifications" should also be the highest. I would argue the same thing for Congress and President, even though we don't get the most qualified candidates there either. It is a different process for them. To me, this is like a party nominating someone for President who only has government experience on a transit authority.

It is an idealistic view. I admit that. however, the Supreme Court is not like other branches of government. This is a lifetime appointment to a bench that has the final word. There is no mulligan. There is no appeal. There is no waiting for the next administration or election to get the bum out. The Supreme Court should ONLY be the highest of the high. Ms. Miers may belong in this group. There is not enough in her past to say she does to me at this time.

As far as President of the Texas Bar, a workaholic like she has been described and a good corporate lawyer with exceptional skills can accomplish this. It does show that she has approval of her peers in many aspects. It is a positive. I am not sure that it overcomes the lack of experience in many areas of the law that she will be faced with.

I intend to hear her out. I am not closed minded to say that she in no way deserves the nomination. I do not expect her to answer my doubts, though. If she does in the hearings, I will yield my opposition to her appointment. I don't even care so much about her ideologies. I just think that the position is too important to not give to an extremely well qualified candidate versus someone who can do the job.

Posted by: Jim M at October 4, 2005 03:38 PM

Several things - after thinking about this all day and doing some reading I think this is a very problematic nomination. The personal connection to Bush reminds me of Hamilton in the Federalist papers (#76) " He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."

Granted she is bright, a tough litigator and has earned the respect of her colleagues but this is also the same woman whose job was to bring Bush the PDB's and brief him on their contents including the infamous August 6, 2001 memo entitled "Bin Laden Determined to Strike in U.S."
I don't think she did a good job that day.

As a White House counsel it's probablly a sure thing that she was in on discussions of the Plame case. If she gets on the bench she will have to recuse herself from any decision involving the current occupants of the White House regarding the Plame case and possibly others.

Posted by: Marcus at October 5, 2005 03:08 AM

Lessee, an attorney who's spent her career in the real world, working on real cases with real clients and running real organizations with real employees and real payrolls, instead of in academia or the legislature or on the appellate bench. Obviously, she is thoroughly unsuitable to deal with the fine abstract reasoning required of a US Supreme Court justice, simply because she isn't sufficiently inexperienced at reality.

[/cynicism]

The Supreme Court is the highest court in the land. It's "qualifications" should also be the highest...The Supreme Court should ONLY be the highest of the high.

That would be the "aristocrats only" argument, that only law professors and appellate judges need be considered. Although it kinda sounds like the Cheech & Chong standard, or the Men In Black parody standard ("The best of the best of the best, SIR!"). It's also the standard that would have excluded Byron White, Chief Justice William Rehnquist, Chief Justice Earl Warren, Chief Justice Salmon Chase, and Chief Justice Roger Taney from the court. IOW, it's not a terribly substantive objection, and it's somewhat of an argument in favor of exclusivity and elitism.

If we go with the "cronyism" argument, we also lose most of that list above. The Hamilton quotation has three very relevant words in it that make it specious. "...no other merit..." Miers seems to have some other merits. She's not fresh off the turnip truck. She has a track record of accomplishment as an attorney. It may not be THE best resume out there, but it's sure not a bad one.

Extensive experience with criminal law would be a plus, but there's no shortage of that on the court. Her extensive experience in civil law is certainly no minus. Many of our justices have made it to the court with lots of criminal and government and academic experience, but little civil experience.

So after we go through the aristocrat and cronyism objections, what else is there? Not to say that there is no merit at all in those objections, just that any thorough analysis should go much deeper than that. Taken by themselves, they aren't substantive enough to be disqualifiers (IMAO).

Posted by: Tully at October 5, 2005 10:14 AM

TJJD-

The Supreme Court of the United States is a common law court. It hears cases arising from the common law, as it hears cases arising from statutory law, constitutional law, and equity.

The Supreme Court is not a common-law cout. Its powers arise and are exclusively confined to the ajudication of "Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made." It is not enough to have an equity case - for the Supreme Court to have jurisdiction, the equity case must raise Federal questions. Furthermore, the Supreme Court's power extends to cases arising under the constitution (which the court cannot amend, see Art. V where the court is never mentioned, cf. Art. III where the amendment power is never mentioned), the laws of the United States (which the court cannot amend or make anew, see Art. I §1 Cl.1) or treaties (which the court cannot ratify, amend or propose, Art. II, §2 Cl.2).

Perhaps we are operating under different definitions of a common-law court. In saying that the Supreme Court is not a common law court, what I am saying specifically is that in the Supreme Court, text controls, not precedent. The foundation of the law is not stare decisis, it is the text of democratically-adopted statutes and constitutions, which the court is not empowered to change. See Steven G. Calabresi, The Tradition of the Written Constitution: Text, Precedent, and Burke p.4 (warning against "mistak[ing] the American Constitution for the British Constitution where there are islands of text in a sea of tradition, instead of the other way around."

Stare decisis is a tool which is used to ensure the consistency of law in common-law jurisdictions, because there is no point of reference against which a judgement can be compared other than past precedent. But in a statutory law setting, the point of reference is the text itself. Stare decisis is not moot, it still has some value, but it cannot supercede the actual text.

You may or may not think that I know what originalism is, but I would say that I can identify several different originalist theories, differentiate between them, rejecting those that I don't agree with and explaining why. I think I have a fairly coherent view on what the constitution is, how one should inquire into its meaning, how one should approach construction, and I can tie that theory into a theory of statutory interpretation without inherent contradiction. I can explain why I reject some results that I like and reluctantly embrace others I do not like, and with all due respect, I think that's a pretty good start for someone without a J.D.

Posted by: SimonD at October 5, 2005 12:42 PM

...Which, I might add, is more than several people who sit on the Senate Judiciary Committee who attended Ivy League Law Schools seem to have managed, based on the evidence of the ghastly pantomime of the democrats during the roberts hearings, and is more than this nominee has thusfar demonstrated that she has worked out.

Posted by: Simon at October 5, 2005 12:45 PM

Simon, you make stare decisis sound like the electical grounding system on a boat.

Posted by: WHQ at October 5, 2005 12:53 PM

WHQ-
I'm not sure if that's a compliment or an insult, although I suspect it will be read as either, depending on the disposition of a given reader towards that doctrine. ;)

Posted by: Simon at October 5, 2005 01:53 PM

I'd say it was neither an insult, nor a compliment, but a rather amusing observation that I wish I had thought of. I applaud you, WHQ.

I just want to make one brief comment here. Bush isn't a moron. He speaks like a moron. He sounds like a moron. He snickers like a moron. However, behind those chimpanzee eyes and facial features sits a very calculating and cunning mind. Bush didn't just walk down the hall and pick the first person he came across. He knows what he's doing on this and I think if we look at his decision of Miers as solely cronyism, then we'll be selling Bush far too short and we'll be missing out on part of motivations.

Posted by: CleverWes at October 5, 2005 02:17 PM

Cunning? Bush? I just don't see that. He's stubborn enough to value his own counsel and do what he thinks is right based on his romantic sense of conservatism. He's not without some deviousness, as we all are, but I think of cunning as reserved for the top percentiles of people especially gifted at crafting complex strategy through a combination of lengthy analysis and good intuition.

IMO, it feels like a word to describe a way of thinking and doing things with which Bush often seems to have very little patience. I'm not saying he's without such skill, but comparatively I doubt he'll go down as one of our more cunning statesmen/presidents.

Posted by: bk at October 5, 2005 03:05 PM

Buhs doesn't need to personally be a cunning strategic super-genius, just marginally brighter than your average bear. He has Satan on his side, remember? But I note that Harvard Graduate Business School is not known for admitting and graduating large numbers of total idiots either.

Posted by: Tully at October 5, 2005 05:03 PM

Just because she has merit does not dismiss the cronyism charge Tully.
Her closeness to the White House, the possible conflicts of interest should Fitzgerald charge Rove, Libby, Fleischer and others get them convicted and then the inevitable appeals render her unable to perform her duties as a justice.
This also applies to any legal appeal concerning the powers of the executive branch while the Bush admin is still in office. The same argument could apply to other Republicans who may get convicted of various crimes such as Taft, DeLay and others, not to mention the guy who's name escapes me, was arrested just after his appointment to a White house job. IF she was an old friend of his working in a law firm in Houston instead of spending the past 10 or so years close to him then there would be no validity to the cronyism charge.

Furthermore, like I noted above, I have a real problem with someone who can't get across to even the dimmest bulb, which Bush is NOT, the dangers posed by bin Laden to the USA from the Aug 6th 2001 PDB.

"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity."
Alexander Hamilton, federalist Paper #76

Miers' fitness has yet to be determined.

Posted by: Marcus at October 5, 2005 06:33 PM

The only potential conflict of interest would be with those she actually worked for on the issue, Marcus, not those she happens to know. You're conflating enormously. It's the perpetually popular "spread the net" tactic of avoiding the specifics of an issue by broadening the hell out of it to include numerous irrelevant issues. Even if any of those things came to pass (doubtful) the odds of any of them reaching the USSC are so remote that the argument itself is a red herring.

But since you insist on conflating and dragging in side issues, I'll offer you the same bet I offered Carla--$10 to a charity of the winner's choice that the Fitzgerald investigation issues no indictments under the IIPA Act. Payment to be proven by valid receipt from the charity. (Though I will happily accept proof of blood donation to the Red Cross in lieu of any cash donation.)

The same "cronyism" argument could have been leveled at Rehnquist, Warren, Chase, and Taney. It would have been just as lightweight. Anyone who has achieved enough stature and prominence as an attorney to be considered is going to know and/or have worked for countless people in political circles. When Presidents nominate USSC justices, it's hardly a surprise that the pick will come from their "team" and not from the opposition's.

Please also note that you are actively misrepresenting what I said, which was that while such things no doubt deserve some consideration by Senators in the confirmation process, by themselves they are not at all disqualifiers. The primary considerations are the President's perogative to nominate and the Senate's right to object.

And jumping from a "no merit" Hamilton quote to one justifying the Senate confirmation process? Puh-lease. No one has argued that the Senate won't have their Constitutional say.

Posted by: Tully at October 5, 2005 08:13 PM

Ann Coulter hates Harriet Miers. Her arguments are that Bush owes the religious right and should pay up, that Miers' law school wasn't good enough, and that the GOP really wants a nominee that loathes liberals, and only a conservative from an elite liberal law school will have been "blooded" enough and can muster the required outrage.

To me, that's almost a recommendation in itself.

Posted by: Tully at October 5, 2005 08:50 PM

I can't relate to the school snobbery argument. I don't think there's anything inherently wrong with a non-judge being nominated. The cronyism charge would only be valid if she was not qualified, in my opinion.

Bush did campaign explicitly on nominating strict constructionists, so his supporters are not unreasonably hoping if not expecting for one with a proven history of this judicial philosophy. Some Republicans feel they've been burned about 4 times on "trust me!" candidates who have drifted (or plain jumped), so this might explain their lack of trust this time.

Among Republicans, only grumpsters and polemics seemed upset with Roberts, but with Miers it is a far, far greater swath.

Bush may have thrown a hand grenade into the morale and cohesion of his own party with this nomination. Or the fuss might be much ado about nothing. I'll be Kerryesque and offer both possibilities at once without making a decision. All I know is it will be fun to watch.

I do think being a White House Counsel is far more of an impressive credential for SC Justice than many others seem to. She must have advised the President on a long list of the most critical constitutional issues. But wait, this is also the huge problem with her nomination, she'll have to recuse herself on all of those same key issues.

It's great having a justice who understands the perspective of the executive branch on say national security issues, but what use is it when they have to keep recusing themselves just when their critical vote is most needed? What on earth was Bush thinking?

Sometimes I think Harry Reid is dumber than a sack of hammers, but from a partisan perspective he's a genius for recommending this one.

Posted by: Susan at October 6, 2005 04:23 AM

I'm also getting tired of the "she's not the most qualified" argument. So what? Is she qualified or isn't she? If she is, then move on to other considerations. If she isn't, then shoot her down.

Posted by: Tully at October 6, 2005 08:49 AM

It seems as though the only people who aren't bellowing over this nomination are the ones who have a firm grasp of what makes a person qualified to be on the Court and who don't have some axe to grind. I'm sure I'll get replies from people who fall into one of those categories complaining that I've accused them of being in the other.

Posted by: WHQ at October 6, 2005 09:19 AM

I didn't word that last part very well, but I think you know what I mean.

Posted by: WHQ at October 6, 2005 09:22 AM

LOL. I know exactly what you mean, WHQ.

As far as I can tell, the only Constitutional "qualifications" to reach the Court are nomination and confirmation. If the President nominates and the Senate confirms, the nominee is de jure "qualified." All else is opinion, and the President and Senate are de facto the only folks with relevant opinions in the matter of qualifications.

Posted by: Tully at October 6, 2005 10:21 AM

I do think being a White House Counsel is far more of an impressive credential for SC Justice than many others seem to. She must have advised the President on a long list of the most critical constitutional issues. But wait, this is also the huge problem with her nomination, she'll have to recuse herself on all of those same key issues.

Nope. That's what the DoJ's Office of Legal Counsel does.

It seems as though the only people who aren't bellowing over this nomination are the ones who have a firm grasp of what makes a person qualified to be on the Court and who don't have some axe to grind.

I really don't think that's a fair accusation. There are a lot of people who are shouting mad about this, there's a few people who are too angry to even speak (notice that it took nearly two days for Coulter to recover sufficiently to put pen to paper), and there is almost nobody who is happy. There is a palbable feeling of betrayal among conservatives, and as David Frum pointed out on Washington Journal this morning, the reaction of most of the legal world has been - loudly or quietly - "are you kidding?" Posted by: Simon at October 6, 2005 10:24 PM

Simon, the White House Counsel's office advises the President on *all* legal issues concerning the President and the White House, including a long list of critical constitutional issues.

The fact that another governmental office also provides constitutional advice does not make this any less true.

Posted by: Susan at October 6, 2005 11:05 PM

notice that it took nearly two days for Coulter to recover sufficiently to put pen to paper

Not a good example. Please see "axe to grind."

Posted by: WHQ at October 7, 2005 09:11 AM

Anyone hear from Pat HMV lately? He must be up to his eyeballs down in La. I'd love to hear his take.

Simon, forgive me for having some doubt about your take that the discontent is widespread and virulent. It may be so, I have no way of knowing. I'd like to hear more from a few more GOP moderates. Seems to me the sparks are all coming from the well-known bomb-throwers.

Posted by: bk at October 7, 2005 09:49 AM

Pat's up to his ears settling into a new job. His free time is a bit limited.

Posted by: Tully at October 7, 2005 10:55 AM

In Simon's defense, I'll post this, though it's a reflection of discontent in the country, while Simon is referring to the hopping madness of the right wing. Then again, I'm just an obscure bomb thrower...;-)

Posted by: Blue Jean at October 7, 2005 03:51 PM