October 4, 2005

On Miers

I have read dozens of articles and blog posts by now on the Miers nomination, and I think this one by John Podhoretz fairly reflects my general sense of things.

....There is only one person on the planet who would have made this selection — the person whose personal lawyer Miers was, whose staff secretary she was, as well as, for less than a year, his chief White House counsel.

Without the patronage of George W. Bush, Harriet Miers is nothing more than a fairly obscure lawyer from Texas who served as president of a relatively minor law firm and served in state government on a lottery commission for five years.

They are the kind of credentials that might, under other circumstances, get someone a post as assistant secretary of labor, or even (in an administration's second term after a productive stint in the White House) a minor Cabinet post. These are not credentials for the U.S. Supreme Court, whose nine members essentially preside over the third co-equal branch of the federal government. ..

... Harriet Miers might be a very fine person. She might be a good lawyer. Her boss, President Bush, certainly thinks a lot of her work as staff secretary and policy aide.

But it is highly unlikely that she will be a good Supreme Court justice, because there is no indication in her 35 years in professional life that she has intellectual interests, that she has committed herself to the study of Constitutional theory and practice or even that she can write a decent English sentence. And it beggars reason to think that a person at the age of 60 can suddenly emerge as an intellectual powerhouse.

For all I know, President Bush has done something politically brilliant. For all I know, he has this thing wired, and Miers will sail through the Senate. For all I know, she will end up a popular choice, and his poll numbers will rise and Republicans who are disgruntled today will be kind of, well, gruntled tomorrow.

None of that will change the basic fact, which is that Miers was and is an unbecoming choice for one of the most important and influential jobs on this earth.

The selection is deflating for me, I guess because it is the opposite of the John Roberts nomination, which was an occasion to be proud of George Bush. While this nomination is by no means on the same level of cynicism and arrogance as Bill Clinton's pardon of Marc Rich, it has that same "because I can" flavor to it. OK, that comparison is over the top, but you take my point. It plays like a harp to the cronyism critics. And I don't care if she is secretly sworn to do conservatives' bidding till death do us part, the whole thing, including Harry Reid's initial reaction, smells like a backroom deal, done to avoid a fight instead of to select the best qualified candidate. Now the fight may well come from the right. Starting now...

This article by George Will is just now starting to hit the blogosphere, and it blisters the President. Do read it all. Will is on fire.

Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption — perhaps rebuttable but certainly in need of rebutting — should be that her nomination is not a defensible exercise of presidential deference to which senatorial discretion is due. It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court’s tasks. The president’s ‘‘argument’’ for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their prepresidential careers, and this president, particularly, is not disposed to such reflections.

Furthermore, there is no reason to believe that Miers’ nomination resulted from the president’s careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers’ name probably would not have appeared in any of the 10,000 places on those lists.

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech...

...It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court’s role. Otherwise the sound principle of substantial deference to a president’s choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.

The wisdom of presumptive opposition to Miers’ confirmation flows from the fact that constitutional reasoning is a talent — a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer’s career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.


Posted by dan at October 4, 2005 9:58 PM