TalkLeft’s Jeralyn Merritt on Bush and Miers:
I am at the 3 day annual meeting of the Lexis-Nexis – Martindale Hubbell Legal Advisory board. This is the board that Harriet Miers was on until 1999 or 2000, when she went to work full-time for Bush, who was then running for President.
There are four ex-ABA presidents on the board (three of whom are here), and one former U.S. Attorney General. Many have taught at law schools. One is a law school dean. No one on this board who worked with Harriet, including me, thinks she will quit or that Bush will withraw her nomination. About the latter, think about it: When Bush wants someone on the bench whom Congress doesn’t want, what does he do? He brings them round again – like Priscilla Owen and Janice Rogers Brown. Or he does a recess appointment. In other words, he is stubborn as hell. He is not going to withdraw this nomination – and Harriet is tough. She is not going to quit.
Most of those I’ve spoken with believe she will be okay or better as a Supreme Court Justice. While she may be more conservative than many of us, all thought she would be fair. No one can recall a single instance of her talking about abortion or Roe v. Wade. Several recalled her talking postively about the right to bear arms. Most people from Texas and the West, including me, feel that way. Besides, it doesn’t reflect how she’d rule on that particular issue.
There has been a lot of praise for her pro-bono efforts while President of the Texas bar.
The main thing to keep in mind are the alternatives. From a legal standpoint, we lucked out with both Roberts and Harriet Miers. If she were to withdraw and Bush were then to repay the radical right what they think he owes them, we will be far worse off. We didn’t get Wilkerson or Luttig from the 4th Circuit, Rogers Brown, Edith Jones, Priscilla Owen or Alberto Gonzales. But we may, if Harriet is not confirmed.
[My emphasis]
Well, I hardly consider myself a member of the “radical right”—though in this instance, I think Jeralyn is using that designation to refer to just about anyone looking for a constitutionalist with an ostensible track record.
But it is nevertheless interesting to watch an upfront progressive liberal like Jeralyn pushing so hard with liberal Democrats to defend and bolster the Miers nomination, even if she is doing so on the grounds that things could be “far worse” for those on the political Left. Jeralyn continues:
The carping over her not having been a judge or a constitutional law expert is blather. Any comptetent lawyer can read the briefs and law and understand the principles and follow precedent – or decide to overrule it. So is expecting Supreme Court nominees to say how they’d vote in a particular case. You shouldn’t want a judge whose mind is made up in advance. Judges should be impartial and decide each case based on the facts and the relevant law. She can do that. I think most seasoned practitioners can do that.
Give Harriet a chance. Listen to what she has to say at the confirmation hearings. And then make up your mind.
This is, of course, excellent advice for liberals: Merritt knows the stakes, suspects that Miers is likely a social moderate on many key issues who will mirror O’Connor in “judicial philosophy” (a judicial pragmatist who might very well be persuaded in her decisions by what she believes to be prevailing cultural attitudes), and so she doesn’t want Democratic criticism and opposition to sink a nomination that is driving many conservatives—and not just those on the far right, pace Jeralyn’s suggestion—to distraction.
Jeralyn likewise supports the Ginsberg rule (as do I, and as do virtually all legal conservatives), but in the case of Miers, the Ginsberg rule—coupled with no discernable paper trail that speaks to a judicial philosophty—leaves conservatives worried about the nomination completely in the lurch. Which is why the time to question the nomination is before the hearings.
Jeralyn would prefer we not do so. And when a progressive liberal lawyer is recommending that we all wait for hearings in which she well knows we’re likely to learn nothing important about Miers (while she herself seems to know all she needs to know beforehand) in advance of making up our minds…we’ll, that worries this particular member of the “radical right” to no end…
Hmmm.
Jeff you and I know Miers is going to get confirmed.
And we both know that, should Miers turn out to be in the O’Connor mold, that everyone who denigrated those that opposed Miers, will then claim to have “felt the same way”.
Well, I’m just putting the info out there as it comes to me, along with my glosses.
Once Miers gets to the floor, if she manages to impress in the hearings, I’ll support her, because I respect the process. But now is the time to voice my reservations.
I think the debate on the right is a sign of health. I think the Miers nomination is a step backward for the conservative judicial movement on the political level, but I think it will prove in the long run to be a boon.
Why do we go to all the expense of having a Supreme Court then? Seriously, why don’t we just draft 9 random members of the Bar every session and let them decide the cases. It would save alot of money, time, and bullshit it seems to me.
tw: appear, catastrophes looming in the windshield may be closer than they appear
Well, seems like everyone (right and left) is reading into Miers what they want to see.
Personally, I think it’s more likely than not that she’s an originalist, and I think most on the right think the chances are better than 50% as well. Others, if I read the general tenor of criticism correctly, are mad that she’s not a sure thing.
But it’s interesting that legal libs are reading into the lack of info about her so favorably. Jeralyn seems to be basing it on personal contact with Miers, but I find her conclusion questonable, since the professional context in which she dealt with miers isn’t the kind of situation that would give way to a lot of interaction on contentious judicial philosophy issues.
Hell, I know well enough going to very liberal law school to be careful with the opinions I voice so as not to evoke hisses from other students (if you think I’m kidding, you’re wrong).
Between Bush saying he knows her judicial philosophy and Jeralyn claiming the same thing, I’m going to have to go with Bush on this one.
And, of course, that’s not to say Bush has misread her either, but snce Miers is a relative cipher, it’s all about what’s more likely at this point.
I’m absolutely perplexed by arguments that we won’t learn anything important about Ms. Miers from the hearings.
Maybe it’s because I make my living in a profession where direct- and cross-examination is the meat and potatoes of my every-day life, and even when it’s done poorly (as the senators all do it), I nevertheless make continuous, crucial judgments based on it.
Are you telling me that your opinions of Chief Justice Roberts were entirely unaffected by his hearings? If you are, my follow-up question (asked incredulously), is: “Did you watch ‘em?” Do you have any doubt, for example, that John Roberts was not only the most brilliant and best educated, but the most articulate and persuasive man in that room? No, those things don’t answer the question: “How will he vote on Roe.” But as a non-single-issue (or handful of issues) citizen, him being brilliant, articulate, and persuasive counted a lot in my overall opinion of the man and my expectations for how his Chief Justiceship will turn out.
I expect some different, and less flashy, things from Ms. Miers. My expectations from her career path to date are different than my expectations were for Roberts; I’ll forgive her, for example, if her oral presentation skills are merely human instead of superhuman. But even if the senators are playing “blind man in the room with the elephant,” by the end of the hearings I think we’ll have a better idea of the shape of the elephant.
Here’s a hint for enjoying the hearings: Watch them exclusively on C-SPAN. Treat the network talking heads the way you would treat some particularly corrosive acid; they suck the intelligence out of the room at an amazing rate, and they almost never pick up on what’s truly interesting and important from the hearings. (Which is to say, they’re stupider than the senators.)
Because Jeralyn’s quote was:
Anyone can be a lawyer these days. There are 180+ law schools. Being a competent one is another story.
Um, someone might want to remind the Dems on the Judiciary Committee about this.
Beldar —
From the hearings I learned that Roberts was precisely as advertised; the hearings made me feel confident that my support of him was warranted. But I didn’t learn anything more substantive. Did you? I expect that Miers will be charming and bright, but I don’t expect I’ll learn very much about her judicial philosophy, because I’m quite certain she will promise, however specifically or non-specifically, not to legislate from the bench.
As I’ve said a hundred times here, I’d prefer not to know how she’d vote on Roe—or anything else, for that matter. Rather, my disappointment, such as it is, proceeds from the President not chosing a judicial conservative that was open about his or her legal conservatism and has a track record to prove it.
And, as I’ve already said, if she does well in the hearings, I’m prepared to support her, because that’s the process. Which is why now is the time for discussion.
I don’t consider myself to be a radical right winger either! BUT… Harriet Miers must have something seriously wrong with her if someone like Harry Reid approves of her!!! …I am one of those people who think gay people should be allowed to marry and Social Security Reform is inevitable… so where does that put me on the political spectrum? Harriet Miers was not the best choice for a supreme court justice…But we are most likely stuck with her now!
Often, the best is not an option. Some tripping tongues have made it clear that there were other first choices. It’s understandable why they would pass on the honor. For some inexplicable reason (or a batch of them), Bush picked Miers.
Perhaps I was the only one who learned how Roberts felt about stare decisis (or even what the heck that means) during the hearings. I also learned he has a sense of humor that is too subtle for the likes of Feinstein, along with the patience to unelaborately and uncondescendingly explain it to her. Those are good traits for brilliant minds, since it is the fate of the ordinary person that they are called upon to resolve.
I think we can learn similar things about Miers. I hope we learn something.
I can’t believe how apathetic I’ve become about the whole thing. Partly because of the looming prospect of wall-to-wall talking heads, and partly because the wailing and gnashing on both sides is about to make my eyes bleed.
Miers will remain the nominee.
Miers will survive the committee, the hearings, and get confirmed.
The political establishment will breathe a sigh of relief.
The GOP will spend a lot of time, labor, and money during the 2006 election.
Hmmmm.
@ Russell
and
There is vast ocean of sarcasm and irony implicit in those two sentences.
And I’d like for you to outline and explain in *detail* exactly what would lead you to think that.
Frankly a lot of pro-Miers blather is long on imagination and suppositions, and very very short on anything actually remotely akin to proof.
Hmmmm.
@ tee bee
I find it curious that the White House declined to identify either the names on their “list” or the names of those that declined. It’s also extremely instructive to note that two prominent female judges, who could not possibly be left off that “list”, absolutely denied having declined being on the Supreme Court.
My belief? Karl Rove was pulling something out of his ass to convince Dr. Dobson to support Miers. That there was never even one single person on that “list” who declined. The fact is that confrontations in judicial nominations has been a fact of life for years. Anyone who was at all hesitant to deal with it would have removed themselves from consideration years ago.
I think Karl Rove lied and the White House has went along with it. But push come to shove, the White House will *never* release the names of those that declined because nobody had declined.
It’s just complete bullshit.
Hmmmm.
@ Pappy
“The GOP will spend a lot of time, labor, and money during the 2006 election.”
So. What do you think the reaction will be if Miers turns out to be the closet liberal O’Connorite that I think she is?
The wailing and gnashing of teeth should be amusing.
So. What do you think the reaction
will be if Miers turns out to be the
closet liberal O’Connorite that I think
she is?
Unfortunately, what will happen is that I, and many people like me, will return to the cynical “Screw it” mode. Until Meirs actually begins to show through her decisions whether she is an originalist or just another O’Connor or Souter, there is no damage done. If she does turn out to be a judge who thinks that Kelso is what the founders had in mind with emminant domain (an absolutely ridiculous position), or that “Congress shall make no law…” somehow means that Congress SHALL make a law, then I think the Right coalition of Conservatives and moderates is kaput. It’s too bad, because if that is what happens, then Bush will have handed our future to the KosKids.
How can a Conservative argue that Hillary! is a phony and pretending to be someone she’s not, when that’s exactly what Bush has done?
Conservatives are not looking to return this country to the 1800’s, but we are also dead set against making America a suburb of France. It’s becoming more and more of a challenge not to hear a French accent when Bush speaks. He may think that Conservatives have no choice, and won’t walk, but, as far as I’m concerned, he’s in for a big surprise.
I continue to keep my fingers crossed that W won’t be the second Bush to hand the presidency over to the Left on a silver platter.
– Jeffrey,
You say:
[sic]
Sure dude: by choosing a “renowned social moderate†such as <b>clueless Dixie majorette Ms. Harry, our famously “compassionate†El-Presidente has once again demonstrated his ingrained penchant for progressive politics and fair and balanced jurisprudential philosophy.
I wonder where you get your ideas dude…
The Tallahassee Advanced School of Public Policy and Electoral Management?
The PR & Propaganda section of the Israeli Consulate in Houston??
Plus, you forgot to add “Love you Mr. President Sir, you’re the best President ever, Yes Sirâ€Â
Eternally Yours in Liberty,
Dr Victorino de la Vega
Chair of the Thomas More Center for Middle East Studies
http://www.mideastmemo.blogspot.com/
[Sic]
You wrote:
MEANWHILE, I can go over to a “socially liberal” conservative blogger like Kevin Murphy I can find stuff like the following:
As far as I can tell, you’re against her because you suspect she’s one of those icky socially liberals, and he’s against her because she must be one of those icky social conservatives.
This is turning into a really spectacular circular firing squad on a par with Daily Kos’s never-revealed secret plan to Destroy the DLC, which just happens to be the only organization that’s won their party national elections in the last twenty-five years.
Ack, I forgot the link to the Kevin Murphy post I quoted above.
Actually, I’m “against her” for both of those reasons, Phil. That is, I’m unconviced Miers has a coherent judicial philosophy, and so she’ll ajudicate based on outcome. And I think that like most people, she probably doesn’t view her own personal politics through any particular Party prism.
Hmmm.
“I continue to keep my fingers crossed that W won’t be the second Bush to hand the presidency over to the Left on a silver platter.”
Frankly I just don’t understand what Bush thinks he’s doing. Really now. Has it been a secret that conservatives wanted strict constitutionalists? I didn’t think it was a secret. I didn’t think it was a secret that conservatives were very sensitive about the issue of judicial activism and the reforming of the judiciary. But the way the White House is acting you’d think it was something known to only a few.
ed,
There are only two things I can come up with for what Bush is doing.
Either he thinks that an anti-RvW justice is enough to satisfy the base, or somebody is holding something over his head that would destroy him. Neither one makes a lot of sense, but then again, nominating Meirs makes NO sense.
From day one I’ve been saying that there is more here than meets the eye. It’s just TOO off the wall, and leaves me scratching my head every time I think about it.
Hmmm.
The only theory that makes sense of all thisis that Miers is a solid pro-executive rights voter. I.e. that on any issue that involves the executive branch, rights or authority, Miers will come out swinging on Bush’s side. Which could be a serious issue because of the various lawsuits over detentions, military juries, Geneva Conventions, etc. And that Bush appointed Miers specifically for her position on these issues and that he doesn’t really care about any other viewpoints that she might have.
The only problem that I see is that it would be pretty difficult for Miers to not recuse herself on these issues. Since she helped write some of these legal positions, her joining in to make judgements on them is frankly unlikely. I can’t imagine lawyers involved in something like this not having a complete and public hissy fit.
But that also brings into play another point. The last thing that anybody wants is a Supreme Court justice that will rule in a certain way irregardless of the Constitution.
sigh. It’s frankly a mess.
You’d think that if Miers were really as loyal to Bush as she’s been made out to be, that she would have withdrawn herself from this nomination. A person would have to be completely blind, deaf and dumb to not realise the amount of damage being inflicted, self-inflicted really, on Bush every single day.
“We didn’t get Wilkerson or Luttig from the 4th Circuit, Rogers Brown, Edith Jones, Priscilla Owen or Alberto Gonzales. But we may, if Harriet is not confirmed.”
With the exception of Gonzales, doesn’t this say all that needs to be said as to why those of us who want a qualified why some of us are so disappointed?
Sorry – it should read
“We didn’t get Wilkerson or Luttig from the 4th Circuit, Rogers Brown, Edith Jones, Priscilla Owen or Alberto Gonzales. But we may, if Harriet is not confirmed.â€Â
With the exception of Gonzales, doesn’t this say all that needs to be said as to why some of us are so disappointed?
TW: problem – Man, what was my problem in the previous post?