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It's Miers:
White House counsel Harriett Miers will be nominated to the Supreme Court. I know absolutely nothing about Ms. Miers, beyond the basics from the media. But my initial reaction is that it's unfortunate (but not surprising) that for both Supreme Court nominations, the president has chosen well-connected insiders with ties to the executive branch, rather than individuals who are more likely to bring a more "independent" perspective to issues of government and especially presidential power. And appointing his "personal lawyer" from Texas seems very Lyndon Johnsonish, and is hardly likely to repel recent charges of Bush Administration cronyism. On the other hand, I'm please that Miers is (a) not from an elite law school; (b) not a federal judge; and (c) spent the vast majority of her career outside the beltway. All good things to bring new perspectives to the Court, and, in the case of (b), break a silly tradition [that Justices MUST be from the federal bench] that has evolved.
UPDATE: Comments on the conservative "confirmthem" site are apoplectic. This nomination may give the president some problems with his base.
FURTHER UPDATE: What do Miers and Roberts have in common? They both have significant executive branch experience, and both seem more likely than other potential candidates to uphold the Administration on issues related to the War on Terror (e.g., Padilla and whether a citizen arrested in the U.S. can be tried in military court). Conservative political activists want someone who will interpret the Constitution in line with conservative judicial principles. But just as FDR's primary goal in appointing Justices was to appoint Justices that would uphold the centerpiece of his presidency, the New Deal, which coincidentally resulted in his appointing individuals who were liberal on other things, perhaps Bush sees his legacy primarily in terms of the War on Terror, and appointing Justices who will acquiesce in exercises of executive authority is his priority, even if it isn't the priority of either his base or the nation as a whole. Such Justices may be coincidentally conservative on other issues, just as FDR's nominees moved the USSC generally to the Left. Thoughts?
Miers Nomination--Well, My Prediction Was Right:
Well, it looks like I was right, but I'm not too happy about it. As I wrote a month ago:
Why Roberts? Why did the President decide to nominate Roberts for Chief? The first reason is obvious--the way things are shaping up, he seems like an easy confirmation.
But allow me to propose a second, more speculative possibility. A distinguishing characteristic of this President seems to be the faith he puts in his own personal judgements and assessment of people. Perhaps it is arrogance, perhaps it is that he truly is a better judge of character and ability than the rest of us, but he truly seems to believe that he has better judgment about others than anyone else around him. Or perhaps he wants someone who he thinks will be loyal to him and no one else (such as outside interests). It is similarly my impression that far more than most Presidents he relies on his personal assessments of people who he chooses for his inner circle, rather than their resumes or experience. Indeed, he chose Roberts notwithstanding his relatively short time on the bench. Roberts, of course, was selected by him as well. Let me suggest that Roberts therefore has the one necessary (but not sufficient condition) for being Chief--he had previously won the President's trust the first time around.
***
If I am correct in this assessment of the President's decision-making style, this would suggest that his next nomination would likely be from the crop of judges that he has appointed since becoming President. This would include Brown, Clement, or McConnell, but not more experienced luminaries such as Luttig, Jones, or Wilkinson.
At the time, of course, I had assumed that some minimum degree of luminescence would be required, in addition to Presidential trust. Little did I know that being close to the President would turn out to be the sole criteriaon for nomination to the Supreme Court.
Update:
A quote off of the Comment board David linked to nicely sums up the cronyism of the pick:
Instead, this job gets filled as if it is a second tier cabinet post.
I haven't double-checked the transcript from the press conference, but is everyone sure that he said "Supreme Court" and not "Secretary of Transportation"? The latter certainly seems somewhat more plausible...
Harriett Miers?:
I don't know much about Harriett Miers, but I thought I would blog a few tentative reactions to her nomination. First, I am quite puzzled by President Bush's choice. According to news reports, Bush had instructed his staff to "find another Roberts." But Miers seems to be the anti-Roberts. As far as I can tell, she has no particular experience or expertise in any areas of law that the Supreme Court is likely to consider in the next twenty years; she has no history of having thought deeply about the role of judges in a constitutional democracy; and she is a complete unknown among the parts of the DC legal community that will now be considering her candidacy for the Supreme Court. Of course, this doesn't mean that Miers can't be an excellent Supreme Court Justice. She had a reputation in Texas as a very good and very principled lawyer. And it's also true that never having been a judge isn't disqualifying: William Rehnquist had never been a judge before being confirmed to the Court in 1972. But Rehnquist was a bit different. While he hadn't served as a judge, Rehnquist had considerable experience with the issues that came before the Supreme Court prior to his nomination to be a Justice. Rehnquist was the head of DOJ's Office of Legal Counsel at the time of his nomination, and was himself a former law clerk to Justice Jackson. Another thought is that, if Miers is confirmed, it seems quite possible that the effect of George W. Bush's two Supreme Court picks will be to retain the basic balance of the Supreme Court. Despite all the hullaballoo about the Court shifting to the right, the basic direction of the Court may remain "as is." It's hard to predict this, of course, as I have no idea how Miers would vote. But it seems plausible to me that Roberts will be a slightly more liberal version of Rehnquist, and Miers will be (if confirmed) a slightly more conservative version of O'Connor. The net result would be little change in the basic direction of the Court. In any event, all of this is very tentative. I don't know much about Harriett Miers, so I'll be learning more about her over the next few days just like everyone else.
Frum on Miers:
David Frum nicely sums up my concerns about Justice-designate Miers. I encourage you to read the whole thing, I'll just excerpt a bit:
So the question must be asked, as Admiral Rickover once demanded of Jimmy Carter: Why not the best?
I worked with Harriet Miers. She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated ... I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or - and more importantly - that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left.
I am not saying that she is not a legal conservative. I am not saying that she is not steely. I am saying only that there is no good reason to believe either of these things. Not even her closest associates on the job have no good reason to believe either of these things. In other words, we are being asked by this president to take this appointment purely on trust, without any independent reason to support it. And that is not a request conservatives can safely grant.
There have just been too many instances of seeming conservatives being sent to the high court, only to succumb to the prevailing vapors up there: O'Connor, Kennedy, Souter. Given that record, it is simply reckless for any conservative president, especially one backed by a 55-seat Senate majority, to take a hazard on anything other than a known quantity.
But here is what we do know: the pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements - the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard - that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is impossible to me to imagine that she can endure the anger and abuse - or resist the blandishments - that transformed, say, Anthony Kennedy into the judge he is today.
Miers on the War on Terror:
David observes that Miers may have been chosen for a willingness to uphold the administration's policies in the War on Terror. I recall that when AG Gonzales was under consideration, there was much talk that he might have to recuse himself from war-related cases.
Does anyone know whether limitations would apply to Miers? Will she have to recuse herself in War on Terror cases? I don't know this area of law and practice very well, so comments are open if anyone has thought about this.
Who Was the Last Supreme Court Justice Born in Texas?
(Show answer.)
Justice Sandra Day O'Connor, whom Texan Harriet Miers would replace if confirmed. Though O'Connor was born to Arizonans, and spent most of her adult career in Arizona, she was born in El Paso, and went to school there.
(Hide answer.)
Reactions from the Conservative Blogosphere:
I just took a quick tour of conservative blogs for reaction to the Miers nomination. A few excerpts: Feddie at Southern Appeal: I am done with President Bush: Harriet Miers? Are you freakin' kidding me?!
Can someone--anyone--make the case for Justice Miers on the merits? Seriously, this is the best the president could do?
. . . .
Un-freakin'-believable.
Oh, and if any of you RNC staffers are reading, you can take my name off the mailing list. I am not giving the national Republican Party another dime. Right Wing News: George Bush's decision to appoint Harriet Miers to the Supreme Court is bitterly disappointing.
Miers is a Bush crony with no real conservative credentials, who leapfrogged legions of more deserving judges just because she was Bush's pal. She used to be Bush's staff secretary for God's sake and now she's going to the Supreme Court while people like Michael Luttig, Priscilla Owen, Janice Rogers Brown & Emilio Garza are being left on the sidelines.
To merely describe Miers as a terrible pick is to underestimate her sheer awfulness as a selection. Michelle Malkin: It's not just that Miers has zero judicial experience. It's that she's so transparently a crony/"diversity" pick while so many other vastly more qualified and impressive candidates went to waste. If this is President Bush's bright idea to buck up his sagging popularity--among conservatives as well as the nation at large--one wonders whom he would have picked in rosier times. Shudder. Powerline: This nominee is a two-fer — she would not have been selected but for her gender, and she would not have been selected but for her status as a Bush crony. So instead of a 50-year old conservative experienced jurist we get a 60-year old with no judicial experience who may or may not be conservative.
I was hoping that, because this is Bush's second term, he would thumb his nose at the diversity-mongers and appoint the best candidate. He thumbed his nose all right, but at conservatives. William Kristol: I'm disappointed, depressed and demoralized.
. . .
I'm depressed. Roberts for O'Connor was an unambiguous improvement. Roberts for Rehnquist was an appropriate replacement. But moving Roberts over to the Rehnquist seat meant everything rode on this nomination--and that the president had to be ready to fight on constitutional grounds for a strong nominee. Apparently, he wasn't. It is very hard to avoid the conclusion that President Bush flinched from a fight on constitutional philosophy. Miers is undoubtedly a decent and competent person. But her selection will unavoidably be judged as reflecting a combination of cronyism and capitulation on the part of the president. ConfirmThem.com: We've got a lot to learn about SCOTUS nominee Harriet Miers. To hear the White House tell us, "With her distinguished career and extensive community involvement, Ms. Miers would bring a wealth of personal experience and diversity to the Supreme Court."
Diversity. Sure she does. In fact, she gives money to Republicans *and* Democrats.
Mr. President, you've got some explaining to do. And please remember - we've been defending you these five years because of this moment. Mark Levin at Bench Memos: The president and his advisors missed a truly historic opportunity to communicate with the American people about their government, the role of all three branches of the federal system, and the proper function of the judiciary. More importantly, they have failed to help the nation return to the equipoise of our constitutional system. And the current justices whose arrogance knows no bounds will be emboldened by this selection. They will see it as affirmation of their "extra-constitutionalism." The president flinched. Some have compared have compared profligate spending to Franklin Roosevelt's New Deal. But no one will accuse him of FDR's boldness when it comes to the Supreme Court.
If people are disappointed, they have every reason to be. Professor Bainbridge: I'm appalled.
. . .
. . . This appointment reeks of cronyism, which along with prideful arrogance seems to be the besetting sin of the Bush presidency. At this point, I see no reason - none, nada, zilch - for conservatives who care about the courts to lift a finger to support this candidate. Some bloggers are more positive, to be sure, but a surprising number aren't.
Liberal Advocacy Groups Quiet So Far:
While conservative blogs have been quite critical of the Miers nomination, the People for the American Way and the Alliance of Justice are being uncharacteristically quiet so far. The homepage for the Alliance for Justice doesn't even mention the Miers nomination, at least as of 12:30. The homepage for PFAW has a short and neutral call for thorough hearings: With no past judicial experience for the senators to consider, the burden will be on Miers to be forthright with the Senate and the American people. She must outline her judicial philosophy and provide direct answers to questions about how -- and whether -- she will uphold fundamental rights, liberties and legal protections on which Americans rely.
White Meets Powell Meets O'Connor?
I know little about Harriet Miers, beyond what I read in the papers (the electrons?) this morning. But I was struck by how her career path -- not necessarily her views, which I don't know -- fits more the paths of Justices White (especially) and Powell than of some more recent Justices. (There's also of course an element of Justice O'Connor, in the sense that both were among the first women to have risen to important positions in their civic and professional communities, Justice O'Connor in Arizona law and politics, and Harriet Miers in Dallas legal practice and in the Texas bar; but the analogy to White, and, to some extent, Powell, I think, is in many ways stronger.)
White and Powell, like Miers, came to the bench from lawyering, not from judging or the academy. Powell, like Miers, made his reputation chiefly in private practice, some amount of public service, and bar association leadership. White, like Miers, served in Washington following a substantial career in private practice (though Miers' was longer, since she is a decade and a half older than White was when he was nominated). White, like Miers, came to Washington after working on the presidential campaign, and had known the President before even before the campaign. My sense is that he was appointed both to the Administration and to the bench in large part because he enjoyed the President's personal confidence.
And these items, I think, fit a pattern: During that era and before -- though not as much since the Stevens appointment in 1975 -- Justices were often drawn from among practicing lawyers who had made their reputations as lawyers; and, as lawyers, they were more often likely to have developed relationships with the President who appointed them, or at least the President's team. Chief Justice Roberts in some measure fits that profile as well, though of course he was an inside-the-Beltway lawyer as opposed to Miers, Powell, O'Connor, and to a smaller extent White, who built their careers in their own states. They were not academics or judges; but the current heavy loading of ex-academics and ex-judges is a relatively modern phenomenon, not a settled long-term tradition.
Naturally, one can tell little from this pattern about a nominee's quality -- White, Powell, and O'Connor have been highly regarded, but not so, for instance, with Arthur Goldberg or Abe Fortas -- or about the nominee's likely ideology. It's not even clear that coming from lawyering would make the nominee more particularistic and less given to applying broader ideological principles; White, Powell, and O'Connor can probably be characterized as relatively particularistically minded Justices, but so could, for instance, Justice Breyer. Conversely, one of the most ideologically minded Justices since World War II, Justices Hugo Black, had been a Senator, not a judge or an academic.
My point is simply that when one is looking at Miers' career and credentials, it may be helpful to avoid comparing her to the current crop of Justices -- the natural tendency whenever one is considering a new nominee -- but rather to nominees who come from a different, but just as historically well established, mold.
The Website Formerly Known as ConfirmThem.com:
Reading the reaction to the Miers nominatiom at ConfirmThem.com, I thought I would point out that the following URLs are still available: 1. www.weusedtosayconfirmthembutnowwearejustconfused.com
2. www.isthisreallyhappeningtome.com
3. www.thisisntwhatiwasexpectingwhenijoinedthiswebsite.com
4. www.nowforsomethingcompletelydifferent.org
Daily Kos on the Miers Nomination:
An excerpt: I reserve the right to change my mind, but Miers' biggest sin, at this early juncture, is her allegiance to Bush. That her appointment is an act of cronyism is without a doubt, but if that's the price of admission to another Souter or moderate justice, I'm willing to pay it.
. . .
[M]y early sense is that this is already a victory -- both politically and judicially -- for Democrats. In fact, it should be great fund watching conservatives go after Bush. He may actually break that 39-40 floor in the polls, given he's just pissed off the very people who have propped up his failed presidency.
Dick Cheney Defends Miers Pick:
Transcript here.
The Court and the Legal Culture:
Orin rounds up the conservative response to Miers. The chronic complaint, and one that I share, is that this amounts to a squandered opportunity, one that is heightened by the fact that this follows on the heels of the Roberts appointment. So allow me a quick comment on my concerns about the Roberts-Miers ticket.
There are two possible ways to think about appointments, one is to appoint those who will simply "vote right" on the Court, the other is to be more far-reaching and to try to change the legal culture. Individuals such as Brandeis, Holmes, Warren, all changed both the Court and the legal culture, by providing intellectual heft and credibility to a certain intellectual view of the law. Thomas and Scalia have been doing the same thing for some time now, with their view of the law. This is, of course, precisely why Bork was taken down as well. Rehnquist, by contrast, may have changed the voting patterns of the Court but did not change the legal culture through intellectual leadership. Even worse, pick someone who supposedly "votes right" but has no developed judicial philosophy, and soon you have someone who doesn't even do that (Blackmun, Souter, etc.).
Bush's back-to-back appointments of Roberts and Miers is a clear indication that his goal is at best to merely change the voting pattern of the Court rather than to change the legal culture. One suspects that the best that conservatives can hope for from the two them is that they will consistently "vote right." But neither of them appears to be suited by background or temperament to provide intellectual leadership that will move the legal culture. I suspect that this is the source of the conservative outrage about Miers. In addition, historically those who come to the Court without a clear jurisprudential philosophy almost always end up moving left, which may add still further to the concern about her apparent lack of intellectual heft. Simply because she has stood up to the political criticism that she has received working in the White House does not mean that she will be able to withstand the intellectual criticism that she will receive. Writing a persuasive Supreme Court opinion that will hold a majority is a whole different ball game from stonewalling the Washington Post reporters.
Put another way, looking at Miers resume, I can see nothing in her career or her resume to suggest that she has ever thought in any meaningful manner about larger questions of law or judicial philosophy. She went to a perfectly good law school, but during an era where it is hard to believe that she was thinking much about larger questions of law. She had a distinguished legal career, but from all appearances, one in which she would have rarely had the opportunity or inclination to think seriously about the Court or its role in American society. In private practice, she proved herself most distinguished, it appears as an administrator and manager at her law firm--useful skills, but different from those needed on the Court. Her practice at the various iterations of the Lidell firm in Texas appears to be a conventional trial litigation practice. Finally, her primary responsibility during her time working in Washington has been as a Staff Secretary--again doing management and administration, not intellectual heavy-lifting. Or, as we say in these parts, doing "process" rather than substance (some might say less charitably, "a glorified paper-pusher"). There is simply nothing in her background to suggest that she will exert any intellectual leadership inside or outside the Court. At least Roberts, as a lawyer was engaged in the big intellectual issues of the day, even if his judicial philosophy is more incremental than systematic.
At the very least, she will have a heck of a lot of learning to do and will be forced, at the age of 60, to think about many, many difficult issues that she has never confronted in her entire life. I suppose it is possible for a 60 year old to start what amounts to a completely new career and learn a completely new set of skills for the first time, but.... She hasn't even been practicing law for many, many years, but rather serving in either policy or administrative roles. At the very least, if she is to ever exercise any intellectual leadership of the there is going to be a substantial learning curve that suggests that it will be several years before she has anything meaningful to say. This in contrast to Luttig, McConnell, Brown, Jones, Batchelder--well, at least 100 other people who are at least as well-qualified, but who would not need on-the-job training. It is really quite difficult to imagine that she will ever be in a position to exercise any substantial intellectual leadership of the Court.
These appointments thus seem to confirm a common criticism of this President--that he is uninterested in ideas and interested only in power. While they may both turn out to be perfectly fine Justices, both Roberts and Miers appear to be both uninspired and uninspiring in terms of providing intellectual leadership on the Court. The Administration seems to be narrowly obsessed with winning minor tactical victories (here, an easy confirmation of a stealth candidate) while consistently failing to follow-through with meaningful long-term strategic victories (an opportunity to change the legal culture).
In the end, of course, the lack of a strategic vision means that even the tactical victories tend to be reversed (for instance, temporary tax cuts will likely fall victim to the inability to control spending). As Reagan understood, you have to first have the long-term strategic vision in mind so that you know when to make tactical compromises. Ideas are the long-run motivating force of history. Tactics without strategy, by contrast, leaves you rudderless.
Picking someone who "votes right" without exercising intellectual leadership is a squandered opportunity. Even worse, if you try to pick someone who votes right without knowing why, soon you may have neither.
Update:
I have been rightly rebuked by Orin and others for seeming unduly harsh on Roberts, and I certainly did not mean to imply that Miers and Roberts are of similar experience or ability. Let me make this clear--Miers is no Roberts, and I recognize that. What I was trying to say in the first post, perhaps inelegantly, is that although Roberts is impeccably qualified and brilliant, his judicial philosophy remains somewhat of a blank slate and conservative enthusiasm was somewhat muted, and that most seem to believe he would be more in the Rehnquist mold than the Scalia/Thomas mold. The implicit deal, as conservatives seem to understand it, was to go along with Roberts for Chief, who seems to be excellent but is not exciting among conservative stalwarts, and then the second nominee would be in the McConnell/Jones/Luttig mode.
So, I simply meant to indicate that I think the backdrop of the relatively temperate enthusiasm among conservatives for Roberts on the grounds that I argued, may help to explain the extreme conservative frustration with Miers. I certainly did not mean to imply in any way that Roberts and Miers were comparable. My apologies for the lack of clarity.
A Quick Response to Todd:
Todd writes below: While they may both turn out to be perfectly fine Justices, both Roberts and Miers appear to be both uninspired and uninspiring in terms of providing intellectual leadership on the Court. The Administration seems to be narrowly obsessed with winning minor tactical victories (here, an easy confirmation of a stealth candidate) while consistently failing to follow-through with meaningful long-term strategic victories (an opportunity to change the legal culture). We don't know yet if this is true for Harriett Miers, but I can't disagree more strongly with Todd about the case of John Roberts. I think John Roberts is ideally suited to provide intellectual leadership on the Court; I think his work is going to have a profound effect on the legal profession and will exert a significant influence on trends in legal thought. Roberts believes deeply in the legal craft and in legal reasoning, and I think his leadership is going to impose a discipline on the work of the Court that will prove highly influential in the legal culture at large. The likelihood of that kind of impact is exactly what made Roberts such an inspired choice.
Andrew Cohen on Miers:
CBS News Legal Affairs correspondent Andrew Cohen predicts a nasty confirmation battle for Miers. (HT: Jason Sorens in our Comments).
My Take on Miers:
I have an op-ed scheduled to run in tomorrow's Wall Street Journal. I am told it will also be available on the free-to-access OpinionJournal.com. I will provide a link to it when it comes on line.
I wrote the essay over the past few hours without reading anything on the blogosphere, so it reflects my wholly unvarnished opinion. Good thing I did. Now that I have started perusing the blogs, I see that it would have much been harder to write after reading everyone else's reaction.
Miers on the Right to Keep and Bear Arms:
The New Republic's fine &c blog points to a 1992 article she wrote for the Texas Lawyer. In the article, she points to three infamous multiple homicides in Texas: the 1966 Texas Tower Shooting, in which a man climbed the clock tower at the University of Texas, and shot 14 people. (He was finally stopped when two policemen and a civilian rushed the building.) The second was the 1991 Killeen massacre, where a man entered a Luby's Cafeteria, and methodically slaughtered 23 unarmed people. (The incident played a major role in Texas rescinding its ban on carrying concealed handguns, and enacting a Shall Issue permit law.) The third incident in Miers' article had taken place recently; a man murdered two judges and two lawyers in a Fort Worth courthouse.
"How does a free society prevent" such crimes, she asked. She then explained:
The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs.
Miers, however, rejected the notion that "precious liberties", including "the right to bear arms," should be sacrificed in the name of crime prevention. Quite obviously, she was referring to the "right to bear arms" as an individual right. It's technically possible that she was referring only to the Texas Constitutional arms right, which clearly is individual, rather than to the Second Amendment. However, the context of the quote does not seem so constricted, and even to describe the Texas right a precious liberty says a good deal about Ms. Miers' thinking.
She then explained the true solution to crime:
We will be successful in solving our massive crime problems only when we attack the root causes....
We all can be active in some way to address the social issues that foster criminal behavior, such as: lack of self-esteem or hope in some segments of our society, poverty, lack of health care (particularly mental health care), lack of education, and family dysfunction.
I agree, and have argued in the Barry Law Review that much-improved pre-school programs for at-risk boys would be far more effective, in the long run, at reducing violent crime than would gun control or even more draconian "conservative" federal criminal laws.
As far as I know, you have to go back to Louis Brandeis to find a Supreme Court nominee whose pre-nomination writing extolled the right of armed self-defense. (I'll fill in the details on him in a subsquent post.) And even Brandeis had not specicially mentioned "the right to bear arms" as one of the "precious liberties" that "We are not willing to sacrifice."
Many web writers have raised legitimate questions about Miers. In terms of the right to arms, however, Americans who love their precious liberties need not hope about the unknown, but need only expect her to be consistent with what she has already said.
UPDATE: Just to clarify a few points: 1. It's possible that some nominee in-between Brandeis and Miers said something nice about the right to arms or self-defense, prior to his or her nomination. As elective candidates, Black, Warren, or O'Connor might be especially likely to have done so. It's just that, among the pro-RKBA community, there are no well-known quotes from them, as there are from Brandeis and Miers. 2. Everybody makes typos, but I agree that the quantity of errors in Miers' short article is troubling. 3. Clearly there were other potential nominees--including Pryor, Brown, and Jones--who have a more established record on the right to arms, and whose record on that issue is clearly part of a coherent judicial philosophy. 4. Given Miers' hero-worship of Bush, it is fair to wonder how often--if ever--she would rule against a position argued by Bush's Solicitor General. The current Bush policy is to defend all federal guns laws (including the D.C. handgun prohibition)--not by denying that the Second Amendment is an individual right, but by arguing that the civil plaintiffs do not have standing to challenge the law unless they are actually criminally prosecuted. That said, Miers is still very likely an improvement over O'Connor, who in United States v. Staples (1994)joined Justice O'Connor's concurrence regarding "the 'widespread lawful gun ownership' Congress and the States have allowed to persist in this country" and "the notable lack of comprehensive regulation." (emphasis added).
"A Spirit of Favoritism":
My Wall Street Journal essay, Cronyism, is available (for free) on OpinionJournal.com. Here is the concluding paragraph:
Times like these demand a justice with a firm grasp on constitutional text, history and principles. Someone who can resist the severe pressure brought by Congress, by the executive branch, by state and local governments, and also by fellow justices to exceed the Constitution's limits on government power. Does anything in her record suggest that Harriet Miers will be that sort of justice? We do not need to wait for Senate hearings to answer this question. What hearings will tell us, however, is whether the Senate, too, will succumb, in Hamilton's words, to "a spirit of favoritism." (Comments are activated, but please confine posts to matters of substance—both pro and con—related to this post. Crudities will be removed.)
Miers: Mind the Gap?
Putting together the points about Miers being close to Bush and the complaints about her lack of a public record on the subjects with which the Supreme Court deals, what is striking here is the gap between what Bush knows about her and what the public knows about her. We are beyond reading tea leaves when we are dissecting how many cookies she baked for her church, and what that tells us about the likelihood that she will find displays of the ten commandments constitutional. Insofar as Souter was a "stealth" candidate, it isn't as if George H.W. Bush knew him much better than the rest of us could if we read his opinions. White's views were largely unknown to the public, but he was not particularly intimate with Kennedy. My guess is that the last nominee for whom the gap (between the President's private knowledge and the public's available knowledge) was really large was Abe Fortas — although even there the gap may have been smaller, in that he had taken positions on a number of important public matters.
So, unless we learn significantly more about Miers in the coming weeks — a definite possibility, but by no means a certainty — it seems to me that one's assessment of her jurisprudential views will largely be a function of one's assessment of:
A) Bush's success in determining how she will likely vote on issues that are important to him;
B) What issues Bush regards as important; and
C) Whether one agrees with Bush's position on those issues.
For Bush supporters to support her on these grounds (i.e., her jurisprudential views), it seems to me that one has to have some confidence in all three. That means that you need to have confidence in Bush's ability to judge how she will vote (maybe she's told him in so many words, but probably not; still, there might be enough for him to make educated guesses with some confidence). And you need to be confident that he regards as important what you regard as important. As David Bernstein noted, it may be that Bush is choosing her because he really cares about executive power and the war on terror, and he knows where she'll come out on those issues, but that he isn't prioritizing issues that are central to his political base. For Bush opponents, by contrast, one needs either to have significant doubts about Bush's success in predicting her votes or to believe that what he regards as important is a relatively small universe.
This should not necessarily determine one's support for or opposition to her — perhaps she should be opposed on grounds of cronyism or the unimpressiveness of her background, or perhaps she should be supported on the grounds that the alternatives to her are likely to be worse — but it does seem to be an important calculus in assessing her likely jurisprudential views.
This is Downright Embarrassing (Miers):
First, read Steve Bainbridge's devastating critique of the Miers nomination. You back? Good!
New York Times:
To persuade the right to embrace Ms. Miers's selection despite her lack of a clear record on social issues, representatives of the White House put Justice Hecht on at least one conference call with influential social conservative organizers on Monday to talk about her faith and character.
Some evangelical Protestants were heralding the possibility that one of their own would have a seat on the court after decades of complaining that their brand of Christianity met condescension and exclusion from the American establishment.
In an interview Tuesday on the televangelist Pat Robertson's "700 Club," Jay Sekulow, chief counsel of the Christian conservative American Center for Law and Justice, said Ms. Miers would be the first evangelical Protestant on the court since the 1930's. "So this is a big opportunity for those of us who have a conviction, that share an evangelical faith in Christianity, to see someone with our positions put on the court," Mr. Sekulow said. (1) Is the evangelical right, who along with the rest of the conservative coalition, swore "no new Souters" (i.e., no supporting a Supreme Court nominee based on personal assurances of the nominee's constitutional views, without supporting evidence) going to allow itself to be suckered by identity politics of the basest sort?
(2) Shame on the White House for engaging in such identity politics. Racial identity politics is corrosive enough. Do we need to add religious identity politics to the mix? Especially for the Supreme Court? This is supposed to be a Supreme Court nomination, not some weird American variant of the government-appointed Chief Rabbi of Israel (which is, in its own way, appalling).
(3) Thus far, beyond the president's personal endorsement and her loyalty to him, all that supporters of Miers have been able to come up with is that she's an evangelical Christian and personally pro-life. Are conservatives, religious or not, supposed to support a nominee for a lifetime appointment on the Supreme Court solely on the basis of her personal faith? Why not just appoint Mario Cuomo? By all indications, from what I recall, when Clinton was thinking of nominating him, he was a religious Catholic who was sincerely personally opposed to abortion. Heck, "religious Christian and anti-abortion" would almost certainly have described William Brennan when he was appointed to the Supreme Court.
(4) Conservatives, including religiously motivated conservatives, should be looking well-beyond Miers' views on "social issues" to her views of the Constitution. This is true even for those who don't actually care about the Constitution, but only about social issues. After all, Miers can easily be on the court for twenty or more years (her mother is 93!) Who knows what issues will arise in the time span? Eventually, her views on current social issues will be largely irrelevant, and her views on the Constitution will be what matters as future disputes arise.
I'm trying to reserve judgment here, but I don't think I can anymore. The president has appointed someone with at least the minimum qualifications to be a justice, but that's about all. He's broken his promise to appoint someone in the mold of Thomas and Scalia, and not because he's found someone equally talented but with a somewhat different conservative judicial philosophy, such as Posner or, less extreme, Kozinski. Rather, he's appointed a crony, whose record of political donations smacks of opportunism (or "pragmatism") more than anything else (a Democrat when they controlled Texas, a Republican when control shifted), and whose great moment of political "courage," according to her supporters, involved asking the ABA to stay neutral on abortion. This, apparently, makes her a regular Joan of Arc. As noted previously, she may have been appointed because she's likely to uphold Executive power, which will be a great gift to President Hillary Clinton, whose ascension is becoming more and more likely due to the Bush Administration's incompetence.
And, to top it all off,the president sends his minions to drum up support based on her personal religious philosophy. I'm sure Miers' didn't ask the White House to trumpet her religious views, and, given her reported modesty and shyness, it's entirely possible that she's mortified. So without placing any blame on Ms. Miers, whose only done what she's been asked, and save perhaps the Powell United Nations speech, and the blatant lies about the cost of the Medicare drug law, this has to be the most embarrassing episode of the entire Bush Administration.
Harriet Miers and the Meaning of Cronyism--
I want to endorse the thoughts of my co-conspirator Randy Barnett expressed in the Wall Street Journal: "Cronyism."
At the time of the Roberts appointment, I thought that one thing that endeared Roberts to Bush was his likely support for government power in the War Against Terror. That reason looks to be much more significant as an explanation for the Miers appointment.
It seems to me that there are two sorts and motivations for cronyism: one kind of cronyism is to do favors for friends and relatives to help them; the second kind of cronyism is to favor friends or relatives, not to help them, but because you think they would do a better job than others. When John Kennedy chose his brother Bobby to be Attorney General or Lyndon Johnson chose his close friend and former lawyer, the eminent Abe Fortas, to be an Associate Justice, these were not done primarily as favors to these men, but rather because Presidents Kennedy and Johnson wanted people they trusted in top government positions.
I suspect that George Bush's cronyism is of the second sort. I suspect that Bush is under no illusions that Harriet Miers is the best qualified person (or woman) for the job, but she may well be the one that he trusts most strongly to do a good job on the issue he cares most about, the War on Terror.
That said, it's still cronyism.
Unless Miers performs extraordinarily well during the Senate hearings, I am opposed to her nomination.
Harriet Miers: Some Undistinguished Writing.--
I just read a series of excerpts collected by Time Magazine from Harriet Miers' article in the 1992 Texas Lawyer.
(In the comments below, perhaps someone can link a full copy. [UPDATE: Here it is.] I want to see if Time slyly picked out the worst passages, or whether (as I fear) the entire article is as painfully platitudinous as the excerpts that Time chose.)
The first Miers quotation [See the 2D UPDATE below; the error in this passage is in LEXIS's transcription--JL]:
"The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs."
What is the "freedom of liberties"? We all make typographical errors (and this may well be one [UPDATE: it is a typo; see 2D Update below]), but her writing has that airy feel of someone trying to sound important by regurgitating empty platitudes.
Time's second excerpt includes this sentence:
"Those who would choose a rule of man rather than the rule of law must not escape fitting penalty."
You get the sense that first she wrote "must not escape penalty," then thought that she needed to qualify it with the word "fitting," but she didn't realize that idiomatically this would require adding an article: "must not escape a fitting penalty." On this blog (and elsewhere), I have published many sentences as awkward as this one of Miers', but I'd like to see something that read as clearly as the articles or op-eds of my co-conspirators.
Time's third excerpt is similarly timeless:
"We all can be active in some way to address the social issues that foster criminal behavior, such as: lack of self-esteem or hope in some segments of our society, poverty, lack of health care (particularly mental health care), lack of education, and family dysfunction."
I have refrained from explaining why some of Miers' sentences are awkward, but this one violates the "short-to-long principle," explained by Joseph Williams in his books on writing. For grace, Miers' list should be reordered from shorter to longer elements: "poverty, family dysfunction, the lack of education, the lack of health care (particularly mental health care), and the lack of self-esteem or hope in some segments of our society." Not every good writer does this all the time, and many good writers do this instinctually without a rule, but in these excerpts from her meager writing, Miers consistently makes poor choices. In these excerpts, Miers shows no natural skill for writing.
Time's fourth excerpt:
"We lawyers are trained in problem-solving and we have the leadership and other opportunities available to professionals in our society. The two men who died exemplified individuals devoted to their God, their families, their fellow man, their communities and their profession. Speakers in both memorial services, used the very same words: ˜Well done, good and faithful servant."
Note the incorrect comma in the last sentence [UPDATE: again, the comma is a typographical error by LEXIS] and the plodding first sentence.
To be fair, I confess that Time's fifth excerpt ends on a more eloquent note. Speaking about two violent murders, Miers wrote:
"Plain and simple, they are despicable acts —- examples of the worst nature of man. The rest of us are challenged even more to demonstrate the best."
Of course, in our prose we ALL make lots of mistakes. Further, one can't be certain that Miers actually wrote this article published under her name. An associate in her law firm may well have ghost-written it for her. Or a poor editor may have tampered with Miers' writing.
Yet if these are representative examples of Harriet Miers' writings, she will be among the least able writers to serve on the Court in recent years. In my opinion, the majority of students whom I supervise for independent senior research projects at Northwestern Law write better prose than the passages published in the Texas Lawyer under Harriet Miers' name.
The last piece that I encountered before reading the excerpts from Miers' article was Randy Barnett's op-ed on Miers. The difference in the quality of the prose between the two pieces is striking. Randy Barnett writes like a person who earns his living by expressing his reasoning in writing; Harriet Miers doesn't — though if she is confirmed, that is exactly what she will be doing for the next couple of decades. (Since 1971, Justices have left the Court at the average age of 79.5).
It has been said of Justice Blackmun that he realized his own intellectual limitations, leaving the hard job of drafting his opinions to his clerks, reserving to himself the easier task of substantively cite-checking what his clerks wrote. Unless Miers' writing has improved since 1992 (and it may well have), she might take a leaf from Justice Blackmun's book.
UPDATE:
1. In the comments, some argue that my suggestion that an Associate or clerk at Miers' firm might have written the Texas Lawyer article is probably true. I don't know.
2. Originally, I had missed the Miers article on both Westlaw and LEXIS, but LEXIS has it (as a reader notes in comments). I would like to see a photocopy of the original (it's not on Heinonline.org) because there are enough errors in the LEXIS version that I suspect that at least part of the fault is not in Miers' writing but in the typists at LEXIS. Some of the following excerpts look more like LEXIS typos than Miers' writing to me [UPDATE: my suspicions are confirmed in the 2D Update below]:
Many times the push for such precautions is aimed at the criminal courts, but as the Fort Worth case shows, but civil courts have at least as great an interest in courthouse security. . . .
Judicial appropriations for the State of Texas represent 0.32 percent of the total state appropriations. While money cannot solve all the problems, and many times increased expenditure is a simple but wrong approach to solving problems and face, adequate personnel, space and equipment for the judiciary in Texas are essential if we expect the third branch of government to do its job.
Until I see a copy of the published article, I think it is likely that at least some of the errors I criticized in my earlier post were errors of the LEXIS typists. Certainly, the two errors listed in this update look like typists' errors [UPDATE: They are.]
2D UPDATE: In two comments below, Virginia Postrel helpfully reports on what she found in checking the excerpts above against a library microfiche copy of Harriet Miers' 1992 article. Although I raised the possibility of typos in my original post, by the time of my first update, I thought that some of the worst errors must be LEXIS typos: "I think it is likely that at least some of the errors I criticized in my earlier post were errors of the LEXIS typists. Certainly, the two errors listed in this update look like typists' errors."
Postrel points out that the first error is NOT in the original:
I have the original article, courtesy of microfiche in the SMU Law library. The first quote is wrong. The correct quotation is:
"Those precious liberties include free speech, freedom to assemble, freedom of religion, access to public places, the right to bear arms and freedom from constant surveillance."
The rest of the quotations [in my original post] are correct. She writes like a competent corporate executive, maybe a p.r. person, avoiding controversy while still managing to make something of an argument.
In her second comment, Postrel checks the errors noted in my first update, errors that looked to me like LEXIS typos. Postrel wrote:
I forgot to check the update. There are indeed typos in both quotes. The originals read:
Many times the push for such precautions is aimed at the criminal courts, but as the Fort Worth case shows, the civil courts have at least as great an interest in courthouse security. . . .
and
Judicial appropriations for the State of Texas represent 0.32 percent of the total state appropriations. While money cannot solve all the problems, and many times increased expenditure is a simple but wrong approach to solving problems we face, adequate personnel, space and equipment for the judiciary in Texas are essential if we expect the third branch of government to do its job.
Thanks to Virginia for clearing this up.
A Dilemma for the Democrats.--
It is becoming clear that the criticism of Harriet Miers is strong enough from both the right and the center that Democrats can oppose her nomination without paying much of a political price.
We learned in the Roberts nomination that some Democratic Senators were willing to find reasons to go back on their earlier assurances that they would support a "mainstream conservative," but not an extremist. When Bush nominated a mainstream conservative, John Roberts, fully half of Senate Democrats opposed his confirmation.
Now George Bush has nominated a weak choice for the Supreme Court, one without a strong judicial philosophy that might help her resist the pressures to "grow in office" in ways that would please the NY Times and the Washington Post.
Will Democratic Senators vote for Miers in the belief that, while she may start out as a conservative, she may eventually make the same move to the left that Justices Souter, Blackmun, and Stevens made? And, even if she doesn't, Miers may at least make the sort of move to the center that Justices O'Connor and Kennedy have made. (The fervor with which Bush asserted that Miers would not change her views after long service on the Court makes me wonder whether she promised him that she wouldn't change. But can anyone be expected to keep such a promise years from now?)
Or will Democratic Senators decide to try to stop the Miers nomination if they can? Although I think that Senate Democrats could survive the political fallout from a filibuster, in my opinion Supreme Court nominees deserve an up-or-down vote. It may take a few weeks for the politics to sort itself out, but getting some Republican defectors may be entirely possible. My best guess is that almost all Democratic Senators will at least begin by tentatively opposing Miers.
A Malfunctioning White House:
In all the attention paid to Harriet Miers lack of qualifications to be on the Supreme Court, the process by which she became the nominee has generally been ignored. After all, it is only day two in this sad saga. Here is a long excerpt from Tom Smith's post on The Right Coast that deserves wide circulation, in addition to MSM follow up by journalists. (We bloggers, after all, can only do so much.)
The more I think about this nomination, the worse it seems. But then, I am so frequently wrong, perhaps that bodes well. Worst to me is that it is redolent of weakness. It is the sort of decision a President who feels weak would make. It is also completely conflicted. When Ms. Miers put her hat in the ring, who in the WH was supposed to say, "but, Mr. President, she's not qualified"? Anybody who torpedoed her would have to work with her in the future, which would not be fun. So the people closest to the process are immediately in a position of not being able to give candid advice — a reason not to pick close cronies in the first place. Relatedly, the WH counsel's office traditionally is the place judicial candidates are vetted. So this is like your marriage counselor telling you you should get divorced and marry her, or something. Total conflict of interest. Bush needs a lawyer or something to advise him on how to make decisions consistently with his duties of office. Oh that's right! His lawyer's the one getting nominated! Well, I'm sure her sense of law and propriety will dramatically improve once she is making unreviewable law for the whole country.
Also, it looks like a weak president captured by his staff. Maybe this is too cynical, but I fear, utterly lovely in every conceivable respect though she may be, Ms. Miers may have sensed that when W was at his most embattled was the perfect time to cash in her big chip with the guy. And with threats from the Dems on one side, and your staff using that to help themselves on the other, what are you supposed to do? And don't imagine there was a soul in the WH saying, uh, maybe we should pick someone who is, like, really qualified? I don't know if there is a species in which the babies eat the parents, some spiders maybe, but if so, they should be called creepycrawly Whitehousestaffiensis. This has that look to me. It also looks very much like a deal with the Senate Democrats, a pick off their list of acceptable candidates, which makes one wonder why Bush and Rove thought that was necessary, unless they think things are going really badly, which maybe they are. Miers and Rove probably get along famously. How very nice for them.
I have been a critic of the Yale-Harvard-Supreme Court Clerk- etc. etc. mystique before, and I do think being overly impressed by liberal establishment credentials plays into the hands of the dark side. But really. I can't help but think W's not being a lawyer makes him a bit clueless about what a Supreme Court Justice should be. It's a very demanding job, both intellectually and morally. You put someone not up to the job up there and bad things happen. Bad things happen to prose — read a Souter opinion (if you dare); bad things happen to philosophy (Kennedy) and bad things happen to law (O'Connor). I do not expect any president to know enough about judicial philosophy to pick judges on his own. I expect him or her, however, to appoint advisers who do know about such matters and follow their advice. Either the President made this choice on the recommendation of his principal adviser (which is Harriet Miers), over her objection, or for some reason she abstained to counsel him on the merits of this particular pick in which case she could not perform her principal task which would have then fallen to her subordinates or to the President's political advisers.
In any case, there is no basis in fact to trust the President's judgment about the kind of justice she will be. None.
Update: Matthew Frank makes a similar observation this morning in NRO's Bench Memos.:
The trouble is, her own self-interest became inextricably bound up in the process of decision-making at that point. Not a good thing, and it was Bush's fault. So, to whom did he turn, if anyone, for an opinion on Miers's merits?
More on the Bush Administration Shamelessly Using Miers's Religion:
In the Comments to my last post, commentator "Steve" writes:
What bothers me is that there is not supposed to be a religious test for public office, and Republicans scream bloody murder every time a Democrat so much as mentions a nominee's religion (this came up at the Pryor hearings).
So it's strange, in this context, to hear conservatives urging each other to support the Miers nomination by citing her religion. How is it that a specific religion can be a positive, but never a negative?
It's doubly embarassing to hear this kind of talk from people who scorn the notion of the SC as a "super-legislature." Anyone who supports Miers because of her religion is acting based on results rather than on judicial philosophy, and they have no room to complain if a future President nominates judges solely to produce the outcomes he (or she) desires.
Well-said!
A Stunning Column By George Will:
The blogosphere was abuzz last night by news of this hard-hitting column by George Will. I am tempted to post the whole thing but here is an excerpt:
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 pre-presidential careers, and this president particularly is not disposed to such reflections.
Furthermore, there is no reason to believe that Miers's 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's 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. The day before the 2000 Iowa caucuses he was asked — to ensure a considered response from him, he had been told in advance that he would be asked — whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, "I agree." Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, "I do."
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's 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. The White House should be getting very nervous this morning. But the real questions are: How nervous are Republican senators and are they capable of handling the responsibility of "advise and consent"? Will the Democrat senators accept a mediocre (or worse) nominee who they imagine will be more pliable in the future or will they actually oppose a nominee based on her lack of qualifications to be in the Supreme Court rather than on how she will vote once there?
Update: Well, we now have the answer to the question about Republican senators from this WSJ column by John Cornyn.
Gods v. Geeks:
Is the conservative opposition to Miers mostly the work of a few whiny Beltway intellectuals? Over at Slate, John Dickerson tries to make that case: The debate within the Republican Party over Harriet Miers has quickly devolved into a simple question: Is the nominee qualified because of her religious faith, or unqualified by her lack of intellectual heft? On the one side, James Dobson, Miers' fellow parishioners at Valley View Christian Church, and President Bush speak for her heart. On the other, George Will and William Kristol and others who swooned for John Roberts decry her unimpressive legal mind.
In this battle, the White House has clearly sided with the churchgoing masses against the Republican Party's own whiny Beltway intellectuals. The Bushies have always mistrusted their own bow-tied secularists, but the rift has never before been so public. This is a very provocative picture, but I don't think it's an accurate one. It's true that different factions of the GOP have different concerns, and focus on different questions. It's also true that lots of conservative intellectuals have either objected to the Miers nomination or been noncommittal. But my sense is that such reactions are relatively widespread on the right, including the likes of Rick Santorum, Rush Limbaugh, Gary Bauer, Pat Buchanan, and Phyllis Schlafly. If the members of this group count as "bow-tied secularists," then that's news to me. Dickerson focuses on James Dobson, and presents him as an enthusiastic Miers supporter. But Dobson's half-hour radio show on the Miers nomination Wednesday (summary here) indicates that Dobson is considerably more conflicted than Dickerson suggests. Of course, whether this discomfort will amount to anything -- and whether it is justified -- remains to be seen. But I don't think it's accurate to suggest that it's limited to a small group of commentators. Hat tip: Howard.
More on Miers, Intellectuals, and Evangelicals:
Over at TNR's Etc. blog, Noam Scheiber responds to my post criticizing the argument that the conservative reaction to the Miers nomination reveals a divide between intellectuals and religious conservatives. He writes: Sure, people like Perkins and Santorum have hedged their bets, taken a wait and see attitude, maybe even expressed some reservations or concerns. Even James Dobson has backed off his early enthusiasm for Miers a bit. What these people haven't done is make a principled case against Miers, which means they can still be persuaded to support her--and, I suspect, they probably will once they see more evidence of her political and social conservatism.
On the other hand, a principled case against Miers is exactly what conservative intellectuals like George Will, David Frum, and Bill Kristol have made. I think Scheiber is confusing two different questions. The first question is whether Bush made the right call when he nominated Miers; the second question is whether Miers should be confirmed by the Senate. What Scheiber presents as a divide between intellectuals and religious conservatives is really a divide between conservatives debating the first question and conservatives debating the second question. Dobson and Santorum have been focused on the bottom line of whether they support the confirmation of Miers (and in Santorum's case, whether he will vote up or down). In contrast, Will, Frum, and Kristol have harshly criticized the President for having nominated Miers in the first place; to my knowledge, none of them have taken the position that that Miers should be defeated in the Senate. George Will comes the closest when he says that "it might be very important" that Miers is not confirmed, but I don't think that's quite enough. In sum, the two groups aren't disagreeing, but rather answering different questions. The commentators are ruminating on process, while the politicans and political leaders are focusing on the bottom line vote. UPDATE: In response to a comment below, I should have been explicit that the two sets of positions aren't inconsistent. Lots of conservatives feel that Bush made a poor choice, given the options, and they feel conflicted about whether the Senate should now vote to confirm Miers. The commentators are focusing on the former, the political leaders on the latter.
The Harriet Miers Oeuvre.--
The University of Michigan has helpfully put online much of Harriet Miers' published wrtiting (scroll down to "Articles by Miers").
I have read about a half dozen of Miers' pieces so far--nothing particularly good or bad about any of them. They are pretty standard practitioner fare, apparently fully competent, but seemingly no better or worse than a thousand lawyers at good firms in Chicago would do. There is none of the flair that showed in many of Roberts' memos in the Reagan Administration. I've read nothing intellectually substantial by Miers so far, but then I've just started working through the list. If she has any sharp analytical skills, they are not apparent in the pieces I've read. Given Miers' genuine success in practice, I suspect that she is a better advisor and negotiator than writer.
One thing stands out: most of Miers' published writing that I've read is stimulated by her close ties to the ABA.
Krauthammer: "Withdraw This Nominee":
Charles Krauthammer's Friday column has upped the ante on George Will et. al. by urging the withdrawal of Harriett Miers's nomination to the Supreme Court. An excerpt: [N]ominating a constitutional tabula rasa to sit on what is America's constitutional court is an exercise of regal authority with the arbitrariness of a king giving his favorite general a particularly plush dukedom. The only advance we've made since then is that Supreme Court dukedoms are not hereditary.
. . .
There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous. Hat tip: Simon Dodd.
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