The Volokh Conspiracy

Orin has posted several interesting Miers pieces this week--I think the Novak column he mentioned is especially insightful. Here's a few things that I didn't notice my colleagues mention this week, especially on the politics of the Miers confirmation, that I found informative and stimulating.

Steven Teles has an interesting post on Mark Kleiman from earlier this week where he argues that the "Miers flap" among conservatives is an internal battle between the "nonelectoral intellectual" wing of the conservative movement versus the "electoral" grassroots wing. He writes:

So today each party has two wings--an electoral wing, which tends to be more populist and rests on a larger mobilized base, and a non-electoral wing, which tends to be elitist and defines itself more by intellectual principles. Each of these wings has substantial coordination within itself, and some degree of "coupling" to the other wing.

Thus back to Miers. What this conflict is really driven by is the temporary "decoupling" of the electoral and the non-electoral wings of the Republican party. The Christian Right, for example, is largely (but not exclusively) connected to the electoral wing of the Republican party. They care more about outcomes than constitutional principles, and thus are likely to be more susceptible to being persuaded that Harriet Miers will rule their way, regardless of her credentials or the quality of her mind. The lawyers who actively participated in the growth of the Federalist Society, on the other hand, think of legal change as a long-term game, one that is as dependent on shifts in "legal culture" and ideas as it is on who votes which way on the Court. Their conception of how you really create legal change is to produce an entire elite, trained in the top law schools, oriented to constitutional principle, and linked together into a network. Miers does not come out of that process of non-electoral mobilization, but out of the business wing of Texas politics--and hence her involvement with Bush's electoral and political career.

In essence, the non-electoral wing of the Republican party sees legal change as a "long twilight struggle" that happens slowly and indirectly, and in that process Justices matter as much for the intellectual leadership they show as the direction they rule. That is why so many of the Federalist Society types (and the non-lawyers they have influenced) preferred someone like Mike McConnell or Michael Luttig, both of whom are clearly "one of them." Interestingly, had either of these been nominated, both the electoral (at least the Christian conservatives) and non-electoral wings of the Republican party would have been pleased.

This seems largely correct to me--and mirrors my observation in my Legal Times column (now available on-line) that it is not enough to simply choose a Justice who will "vote right" but one who has the ability and temperament to try to help change the legal culture (although I would add that Justices who lack a well-developed judicial philosophy eventually may not even "vote right" down the road). Presumably I fall squarely in the "non-electoral" category.

Consistent with Teles's observation about a gulf between the electoral and non-electoral wings of the Republican Party is Donald Lambro's post on the Washington Times blog "Harriet Miers' Enigmatic Polls." Lambro notes that although Miers's nomination has been roundly criticized by conservative intellectuals, so far conservative voters are supporting her at roughly the same rate as they did Roberts when he was nominated (although many more are undecided at this point):

However, out in the real world, it’s a far different story. Pew found that “opposition to Miers is largely partisan,” though, notably, a narrow majority of conservative Republicans (54 percent) favor her nomination. And less than half of Republican moderates and liberals (43 percent) do, too.

Among conservative Republicans alone, Pew found just 9 percent were opposed to her.

News reports suggest that there is a wave of opposition to Miss Miers from conservative Republicans. But Pew’s poll finds that “opposition to Miers among conservative Republicans is not much greater than it was to [Supreme Court Judge John] Roberts in September.”

On the other hand, “about twice as many conservative Republicans express no opinion of Miers nomination than did so regarding the Roberts nomination last month (37 percent vs. 18 percent).”

At the same time, opposition to Miss Miers among Democrats, “especially liberal Democrats, is greater than it was toward Roberts. About half of liberal Democrats (52 percent) say Miers should not be confirmed, compared with 40 percent who opposed Roberts.”

Finally, on the American Spectator blog John Tabin counts heads on the Senate Judiciary Committee and concludes that it "Doesn't Look Good" for Miers for getting a positive vote out of committee (he notes that Supreme Court nominees cannot be killed in committee). He expresses great confidence that she cannot win confirmation:

Democrats might have concluded that it would be better to back Miers than risk facing a stronger conservative. But after the latest revelations about her pro-life views, Miers can expect almost no support from the party of Roe v. Wade.

Consider just the Judiciary Committee. Unless she explicitly declares fealty to upholding Roe, the five Democrats who voted against John Roberts won't vote for her. The three who did vote for Roberts — Herb Kohl of Wisconsin, Russ Feingold of Wisconsin, and Patrick Leahy of Vermont — did so on the grounds that the overwhelming qualifications of the nominee trumped their ideological concerns. With Miers, the qualifications are significantly less and the ideological concerns are now arguably greater. Miers will probably not get even a single vote from the Committee's eight Democrats.

She can't count on Committee Republicans, either. Another conservative Committee member, Jeff Sessions of Alabama, commented after the TUL-PAC questionnaire came out that Miers still needs to "show she has the capacity to be a Supreme Court justice." The New York Times reported two weeks ago that after meeting with Miers, conservative Committee member Sam Brownback of Kansas "said he would consider voting against the nomination, even if President Bush made a personal plea for his support." And squishy Committee Chairman Arlen Specter, along with ranking Democrat Leahy, it was reported yesterday, was very displeased with Miers's "incomplete" answers to a Judiciary Committee questionnaire.

Under a bipartisan agreement, Supreme Court nominations can't be killed in committee. But if all the Committee Democrats and even one Republican vote against her, the vote will be 9-9 and Miers will go to the Senate floor without a recommendation that she be approved. This will make it much harder to get Miers confirmed on the Senate floor. It will be harder still — probably impossible — if ten or more Senators vote against her in committee.

Finally, a friend of mine observes that he and other conservative lawyers are now living in fear of a "Stockdale moment" in the televised confirmation hearings. Even worse, whether fairly or not, Ms. Miers is starting to take on a bit of a Quayle-like persona where people will be lying in wait for the smallest trip-up and to expand it into something larger (consider, for instance, the scrutiny and questions that have been raised about her questionaire and the "proportional representation" issue). This same friend reports that he once saw Miers give a speech and has little confidence that Miers will substantially improve her case during her hearings:

She struck me as surprisingly unprepared and inarticulate (much like Bush himself). Indeed, she and Dubyah appear to be graduates of the same public speaking seminar . . . and that isn't a compliment. I think we are in for a lot of Supreme Court opinions with lines like "We're getting after 'em. We're smoking 'em out. We want 'em dead or alive" and "After reading the opinion below, I'm tellin' ya, the lower court did one heckuva job."

At this point it really seems like it could go either way, but the White House seems to be working with a pretty thin margin for error. Much of it depends, it seems, on whether the Democrats decide that they are better off with a stealth candidate like Miers or what is behind door #2. At this point, however, Tabin's calculations seem sound--although Miers is a stealth candidate on almost every issue, in light of the revelations over the past few weeks, she no longer seems to be a stealth candidate on Roe. In that light, it is hard to see how many Democrats could vote for her, not to mention liberal Republicans. The remaining margin really seems razor-thin at this point, such that any missteps at her hearings seemingly could prove fatal.