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MIERS & THE MORNING AFTER

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By Michelle Malkin  •  October 4, 2005 08:29 AM

***scroll for updates…Bush Rose Garden press conference scheduled for 1030am EDT…a few liveblogging notes…other reax…1245pmEDT Drudge siren…transcript of presser***

Well, it’s a new day. Upon sober reflection, President Bush’s nomination of Harriet Miers to the Supreme Court appears…even worse than it did 24 hours ago. Conservative legal scholar John Yoo sums up the decision as an “opportunity squandered.” A smattering of my conservative readers who are trying to rationalize the nomination point to Miers’ bid to get the ABA to reconsider its pro-abortion rights stance. She tried to change policy. Good for her. But this tells us nothing about Miers’ judicial philosophy or temperament. She isn’t running for city council or state legislature, for God’s sake. Bush has proposed putting her on the Highest Court of the Land, for the rest of her natural life.

Another grating phrase I keep hearing from the few diehard Bush supporters trying to salvage this nomination is that she “opened doors” for women. All well and good. But I repeat: This tells us nothing about Miers’ judicial philosophy or temperament. We need strong conservative intellects on the court. Not bellhops.

Randy Barnett’s piece in the WSJ today is the best I’ve read on the case against Bush cronyism. An excerpt:

By characterizing this appointment as cronyism, I mean to cast no aspersions on Ms. Miers. I imagine she is an intelligent and able lawyer. To hold down the spot of White House counsel she must be that and more. She must also be personally loyal to the president and an effective bureaucratic infighter, two attributes that are not on the top of the list of qualifications for the Supreme Court.

To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered “judicial philosophy,” by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. Nothing in Harriet Miers’s professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people. It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement.

Even a star quarterback with years of high school and college football under his belt takes years of experience and hard knocks to develop the knowledge and instincts needed to survive in the NFL. The Supreme Court is the big league of the legal profession, and Ms. Miers has never even played the judicial equivalent of high school ball, much less won a Heisman Trophy.

Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.

A small minority of readers say we should wait and see, trust Bush, and hold out hope that Miers is a stealth candidate. This last line of defense is truly pathetic. We have a Republican House. A Republican Senate. And a Republican White House. Why is it, after working so hard to put a president in power who promised to appoint conservative judges, that we have to settle for crossing our fingers and accepting a blank-slate Supreme Court nominee with an ideological paper bag over her head?

***
In the extended entry below, I’m including a sampling of reader e-mails. Judging from the mailbag, the Miers maelstrom has riled movement conservatives (not just right-leaning Beltway pundits) to the core.

Call us the Coalition of the Illin.’

;)

(See Patrick Ruffini’s coalition of unfazed Bush supporters here.)

Beldar, who is in the Chillin’ camp, responds to Barnett’s piece. But the first commenter at Beldar’s blog echoes some of Illin’ crowd’s fundamental concerns:

John Roberts was met with limited enthusiasm from the right for a lot of the same reasons Miers is now under attack. But Roberts was initially nominated to replace O’Connor, so it was thought his lack of a paper trail was meant to make confirmation easier. And while his time as a judge was limited, his stellar career as a supreme court specialist ensured his competence.

What we have with Miers is essentially another blank slate candidate (like Roberts), but this time conservatives expected a stalwart conservative with a lengthy paper trail. Many (including myself) grudgingly went along with Roberts, but wanted the President to come through on his next pick. Now we have another blank slate, but with none of the mitigating factors Roberts had in his favor, such as his stellar credentials and his initially replacing the “moderate” justice O’Connor. I wouldn’t be happy with a Roberts clone either. I wanted a justice we could actually know something about before she takes her seat.

While your points are well taken about the value of ordinary life and ordinary lawyering, don’t you think a Supreme Court justice should spent considerable time thinking seriously about constitutional philosophy, federalism, and the role of Courts in our society before they take their seat on the Supreme Court? No doubt she has done this, but what public record of her thoughts exist on these questions? Do we really know what drives this women’s views on the Constitution (or Roberts’ for that matter)?

Trust Bush? Sorry, Republicans have been burned too many times.

***

Update: Rich Lowry takes on the odious “diversity” rationale for the Miers nomination…

It is only natural that relationships will be important to any political leader. But Bush needs to widen his horizons. Blocked from putting one of his Texas buddies, former White House counsel Alberto Gonzales, on the Court by conservative opposition, he went to another one of his Texas buddies, current White House counsel Miers. Having selected the head of his vice-presidential search team to be his vice president, he now picks the head of his Supreme Court search team to be on the Supreme Court.

There is something to be said for having a Court that is not all white men. But Miers has a whiff of an affirmative-action selection about her that is unnecessary. When Sandra Day O’Connor was tapped in 1981, she was one of the few qualified women in the country. Now, there are dozens and dozens of women on appellate courts, on state supreme courts, and on law-school faculties whose qualifications would be beyond question. There is no reason to go to a nominee who might have been on the pioneering edge 15 years ago, when she was first woman head of the Texas state bar, but has since been surpassed by women who have reaped the benefits of decades of greater opportunity.

Exactly.

Matthew Heidt at Froggy Ruminations dissects the “coffee and donuts” defense of Miers. Hugh Hewitt is still Chillin.’ John Hawkins is Illin.’ Ed Morrissey is suspended somewhere between Chill and Ill.

Add pessimistic Patterico to the Illin’ camp.

Rick Moran calls the Miers pick “an arrogant choice.” Or is it a sign of weakness?
How about both?

***
115am EDT. Rose Garden press conference. NYPost reporter Deborah Orin asks for Bush’s reaction to criticism from conservative female lawyers about Miers’ lack of credentials. Bush: “I would ask them to watch the hearings of Harriet Miers…she’s plenty bright…she was a pioneer in Texas…she’s not a publicity hound, she just did her job…people can opine all they want.” Did he mean to imply that stronger conservative female candidates such as Janice Rogers Brown, Edith Jones, and Priscilla Owen were “publicity hounds?” Also: Isn’t oh-pining the job of a Supreme Court justice?

1135am EDT. A new talking point of the Miers’ defenders is that critics are Beltway insiders who don’t like that she’s a Texas outsider. Completely bogus. Objections are coming from rank-and-file Republicans from all over the country–lawyer and non-lawyer, pundit and non-pundit alike. A few more reader e-mails:

I, like many in the conservative movement, am angry. Not only at the President, but at Republicans as a whole. I am sick of being asked for my vote every two years and then brushed aside by the very people I helped elect. I may not vote for a Democrat, but I can vote with my feet.

Sincerely Livid,
John in Montgomery, Tx.

Lynn S.:

I feel duped by Dubya. He can ask all he wants for his constituents to trust him but I don’t any longer. He got us into an unpopular war and I trusted him to protect our national security. He promised to protect our country after 9/11 and I trusted him—although the borders are still not secure. He promised to nominate conservative judges to the Supreme Court and I trusted him & he’s failed me in this nomination of Miers. I never questioned Robert’s nomination as he was a judge and I liked what I read about him. But the cronyism is very revealing and arrogant on this last Bush betrayal.

I have spoken to many loyal GOP Bushies who feel the same. The real danger here is the disillusioned, depressed, disheartened, distraught, disgusted & dyspeptic feelings we have now extending into the 2006 elections. I am considering becoming an Independent voter and I am not alone. It is very possible that this decision on nominating Miers and the illegal immigration issues will divide the GOP and many will simply stay home and not vote in 2006—–giving the Democrats easy victories as we lose the majority.

Conservatives have to defeat the current malaise we feel and FIGHT for our beliefs even if political leaders fail us. We have to look harder for true leadership instead of false promises for votes.

I will not support candidates in 2006 or 2008 who 1) will not stand up and fight for increased security and enforcement of illegal immigration laws; or 2) candidates who do not have backbones to do what is right instead of collecting votes to continue their vacations in D.C. I will no longer support an invertebrate party until they regenerate backbones again. I am very angry with the “I told ya so” comments that will now come regarding my support for Bush—TWICE.

Bush’s broken promises:

Mr. Bush has said consistently through two campaigns that he would nominate judges who would strictly interpret the Constitution and who would not legislate from the bench.

More broken promises.

I really think pressure on the GOP Senate and Congress is needed to force Bush into another appropriate nominee with judicial experience and known conservative beliefs. Shall we roll? Surely some of the Senators and Congressmen are a little worried about the outrage from conservatives? Or are they arrogant and take us for granted as well?

Jeff Goldstein weighs in on the shortsightedness of the “judicial outsider” meme.

1245pm EDT. The Drudge siren is up, linking to this Time magazine story. Drudge plays up the first item on Miers’ city council candidacy positions on gay rights and AIDS funding. What’s more noteworthy is just how ridiculously slim the pickings are in Time’s round-up of Miers’ legal writing samples.

***

Danny Glover at Beltway Blogroll has a round-up, and highlights James Dobson’s defense of Miers. Wonder if Dobson will stick with it now.

Thomas Lifson at The American Thinker, one of my favorite sites, supports the Miers nomination. Sorry, but the coffee-and-donuts defense just does not work for me.

***
Previous:

Utterly underwhelmed

Message to the White House

Reader James W. forwarded his letter to President Bush:

Dear President Bush:

You have lost my support, President Bush. You have failed to deliver the type of judicial nominees that social conservatives prayed you would appoint. If your choices of John Roberts and Harriet Miers turn out to be good picks, we won’t know it for many months, if not years. In the meantime you have proven to me that Republicans treat social conservatives exactly the same way that Democrats treat blacks. Sucker them in long enough to get their vote and then ignore them.

The single most important thing that you needed to do for our country during your time as our President was to succeed in replacing activist judges with conservative judges who will strictly interpret our constitution in their decisions, replacing them at all judicial levels, but in particular at the United States Supreme Court. The protection of life at all stages and the protection of the family from erroneous and illegal interpretations of the Constitution by liberal judges was and remains at stake. Your entire presidency will be a horrible waste if we have turned over the Supreme Court to moderates and liberals who will continue to destroy the family and our society. If that is in fact what has happened, nothing else matters…we are lost as a nation.

Over the past few years I have looked the other way at the poor decisions you made, time and time again, because I thought surely he won’t let us down with his judicial appointments. You abandoned school vouchers and made a pact with the devil (Sen. Kennedy) which did not result in the kind of monumental changes that would have improved the inner city education disaster. You surrendered on your faith-based initiative when you could have won. You signed unconstitutional campaign finance laws. You failed to offer strong support for some of your best judicial nominees, Miguel Estrada comes to mind. You have failed to protect our borders due to some apparent misguided idea that you can win the Hispanic vote by allowing terrorists to infiltrate our country. And you have increased the size of government spending to obscene levels, failing to veto even one pork-laden bill passed by Congress. In many ways your domestic policies are quite pathetic. However, I thought, he won’t let us down on the judges. But I was wrong. You have.

Mr. President, it may be too late for anything to be done. I have already decided that, for the first time in the 41 years I have been eligible to vote, I will not go to the polls in Virginia next month. I am fed up with supporting Republicans who won’t live up to their promises. If enough people do as I do you will see a clear message sent to you next month from a Red state if the Democrats win the race for governor aggain AND retake control of the state legislature. It really doesn’t matter in Virginia anyway–a Republican legislature last year enacted a sales tax increase when our state had a running surplus! So much for the benefits of conservative control.

I don’t see Judge Roberts or Judge Miers being able to “redeem” themselves with a solid pro-life pro-family record between now and the mid-term elections next November. So, it is entirely possible that the Republican control of the house and senate may be at risk if enough people think as I do. Think about it, Mr. President, you have now done your part to waste the incredible opporttunity that conservatives earned during last year’s election. Shame on you, Mr. President.

Andrew G.:

This judicial pick is the last straw. It should have been Janice Brown.

Don’t get me wrong, I’ll never vote for a stinking Democrat as long as I live, but I think the best message we can send is for conservatives to simply not vote. Let the Democrats beat the hell out of the Republicans so that they will get the point. Things can’t really be any worse anyways.

Don G. sends his response to Ken Mehlman:

Ken Melmhan wants my help in getting Harriet Miers confirmed. Here’s what he got from me in response. I suggest he get simillar replies from
others in the conservative movement.

Ken, I have supported the president through thick and thin. Through his flip-flop on campaign finance reform, to the horrid “No Child Left Behind,” to the wrong-headed steel tarriffs, to the awful prescription drug benefit. I defended him following Katrina. I have been a Bush supporter from the beginning. I have been a true believer.

He officially lost my support today. I believed the president when he said that he was going to appoint justices in the mold of Scalia and Thomas. There were more well-qualified conservative constitutionalists, including minorties and women, to appoint than you could shake a stick at. And what is his choice? A lady I have never heard of with no track-record whatsoever, no established conservative credientials (indeed, much in her past to indicate otherwise), a pedestrian academic bacground (SMU law degree, district court clerkship), no constituional law experience, and to top all of that she is 60 years old. I thought Bush was above all this diversity nonsense. I thought he was ready to stand by his base and defend constitutionalist judges. I thought he was ready to fight for what he and I believe in. Michael McConnell, Edith Jones, J. Michael Luttig, J. Harvie Wilkinson, etc…there are dozens more who would have been fabulous nominees. They would have inspired the base and prepared us to fight for a stronger Republican presence in the federal government come ’06. It would have cemented the president’s legacy and done much to gloss the bitter disappointment of his father’s blunder with Souter.

What did we get? Betrayal. I still can’t believe it, Ken. Not only won’t you be getting me to lift a finger in support of this pick (you know, the one with a strong whif of cronyism), I am going to have to re-evaluate entirely my support for Bush as the conservative standard bearer and for the Republican party as the repository of conservatism. I am no d[ew]y-eyed idealist. I understand the political realities that real policy-making involves. None of that justifies this pick. The president has 55 Republicans in the Senate. That’s a five and a five behind it. A president unwilling to advance a jurist on record as a conservative has
either lost his nerve…or never had one to begin with. A president unwilling or unable to appoint a publicly-confirmed judicial conservative with that strong of a Republican presence in the Senate is undeserving of our movement’s support. I am thoroughly disappointed, demoralized, and depressed (just like Bill Kristol and the rest of the Right-wing). What’s more, I’m shocked. The president had me convinced that he was a bold man who would make bold nominations. I was sure that was exactly what he would do. I was wrong. Fool me once, shame on you. I won’t be fooled twice.

Lee D.:

So. Mr. Bush will not go to the mat to pick a known conservative for the Supreme Court — one with a good conservative paper trail. He’d rather avoid a fight with Charles Schumer than fulfill a promise to his base.

A lot of us have stuck with George and defended him time and time again, for this moment, when conservatives would finally get to decide the next Supreme Court justices. What a letdown. My advice: See if Chuckie Schumer will vote Republican in the next election. I’m done with Republicans. Clearly, Mr. Bush likes Arlen Specter “RINO” Republicans better than he likes religious conservatives. Great. Then he won’t need our support or our money, and the Republican Party won’t need our votes. Have a wonderful time getting Republicans elected without us.

Ethan B.:

I feel completely depressed. Bush has blown it completely. Miers is the anti-Roberts. Everyone who voted for Bush fought hard for the promise of something better than mediocrity. Who needs a third rate lawyer beholden to corporate interests on the Supreme Court? I think that conservatives should encourage the Senate to reject her nomination. Bush needs to be saved from himself, and the only hope is that saner heads in the Senate will realize that Miers is grossly unqualified to serve on the Supreme Court.

Steve D.:

Wouldn’t it be something if the Republican senators voted “no” on Miers?

Lesson: Keep your expections low. Very low.

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