Krauthammer on Harriet Miers. From “Withdraw This Nomination”:
For half a century, liberals have corrupted the courts by turning them into an instrument of radical social change on questions—school prayer, abortion, busing, the death penalty—that properly belong to the elected branches of government. Conservatives have opposed this arrogation of the legislative role and called for restoration of the purely interpretive role of the court. To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.
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.
It will be argued that this criticism is elitist. But this is not about the Ivy League. The issue is not the venue of Miers’s constitutional scholarship, experience and engagement. The issue is their nonexistence.
Moreover, the Supreme Court is an elite institution. It is not one of the “popular” branches of government. That is the reason Sen. Roman Hruska achieved such unsought immortality when he declared, in support of an undistinguished Nixon nominee to the court, that, yes, G. Harrold Carswell is a mediocrity but mediocre Americans deserve representation on the court as well.
To serve in Congress, or even as president, there is no requirement for scholarship and brilliance. For good reason. It is not needed. It can even be a hindrance, as we learned from our experience with Woodrow Wilson, the most intellectually accomplished president of the 20th century and also the worst.
But constitutional jurisprudence is different. It is, by definition, an exercise of intellect steeped in scholarship. Otherwise it is nothing but raw politics. And is it not the conservative complaint that liberals have abused the courts by having them exercise raw super-legislative power, the most egregious example of which is the court’s most intellectually bankrupt ruling, Roe v. Wade?
Krauthammer makes many of the same points I tried to make yesterday—although, predictably, he does so more forcefully and compellingly than I could manage. There is clearly a difference between elitism qua elitism, and elitism in the service of what we wish to be truly elite.
I will add to his analysis, however, that I think we are seeing, in this very public revolt against the Miers nomination, is the unraveling of a long-standing myth regarding the conservative base—specifically, that the “base,” at least with respect to issues concerning jurisprudence, is NOT, as has long been the conventional wisdom, the religious right, or even social conservatives who are interested in “moving the court” via vote stacking.
Instead, what you are seeing is the pushback from legal conservatives, classical liberals, and many libertarians against Ms Miers (and I include in this pushback those social conservatives willing to speak out against activism from the right, like Scalia’s miserable opinion in Raich)—which, when coupled with the inevitable pushback from Democrats over what they will almost certainly conclude is Ms Miers’ “religious extremism,” could very well sink the nomination, or else force Ms Miers to withdraw the nomination herself (though her loyalty to the President, and Bush’s fierce loyalty to his friends, could conspire to keep the nomination afloat).
I have to say, as much as I believe the President has acted in good faith—I believe he is absolutely certain about Miers positions on key conservative issues, and so therefore believes he is keeping his pledge to nominate textualists—I am nevertheless heartened by the willingness of so many on the right to criticize the choice. And, as Patterico points out, many of those who are criticizing the Miers choice were perfectly supportive of the choice of John Roberts, because, whether we knew how he’d vote or not, we believed him to be eminently qualified. (For instance, I was—and still am—very wary of Roberts’ seeming deference to stare decisis and of his willingness to extend the commerce clause; but he certainly had the legal mind and temperament for the position, including a view of law that seemed genuinely to recognize the need to keep personal matters out of the equation altogether).
The President, in appealing to the perceived base, may have miscalculated. And though Miers continues to receive a lot of high profile and really quite erudite support, some of it—insofar as it has begun to take the form of strained attacks against the critics (Lindsay Graham told them to “shut up”; Ed Gillespie’s whiffs “elitism and sexism”, now echoed by Dem Barbara Mikulski)—seems to me to be way off base, and, in its attempt to force unity, is creating the kind of rancor that really can split a party, moreso than any honest airing of grievances is likely to do.
Meanwhile, the Volokh Conspiracy continues to raise a number of red flags about Miers. First, there’s this scoop from Stephen Henderson:
In what appear to be some of her only public statements about a constitutional issue, Supreme Court nominee Harriet Miers testified in a 1990 voting rights lawsuit that the Dallas City Council had too few black and Hispanic members, and that increasing minority representation should be a goal of any change in the city’s political structure.
In the same testimony, Miers, then a member of the council, said she believed that the city should divest its South African financial holdings and work to boost economic development in poor and minority areas. She also said she “wouldn’t belong to the Federalist Society” or other “politically charged” groups because they “seem to color your view one way or another.”
Proportional representation? Politically-motivated corporate divestment and punishment?
In what conceivable world is this “conservative”?—or is this part of the new “compassionate conservatism” which, except for its nods to the faith-based community, is appearing more and more like the Great Society, only with a cross around its neck?
Then there’s this, from the Washington Post:
[Mier’s] relatively thin paper trail adds greater importance to her personal meetings with senators and to the committee hearing that is expected to begin in about three weeks. While generally well received, Miers has had a few awkward moments, including one during her Wednesday session with Sen. Patrick J. Leahy (Vt.), ranking Democrat on the Judiciary Committee.
In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with “Warren”  which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade. Miers said she meant Warren Burger, the sources said.
Now, as KLO points out at NRO’s Bench Memos—“This is what I’m told happened:
”‘Miers was asked about Justices she admired. She responded that she admired different Justices for different reasons, including Warren  interrupted by Senator Leahy  Burger for his administrative skills.
“‘Reasonable people could ask whether Burger was a great administrator, but the comment is taken out of context by the Washington Post. Miers didn’t express admiration for his jurisprudence’”—which conceivably mitigates the answer, though, as Jim Lindgren points out, it does little in the way of inspiring confidence.
****
See also: Miers’ current polling numbers. And Virginia Postrel (h/t Glenn)
And here’s Orin Kerr on how support or opposition is being formed.
Every once in a while a person gets it wrong, and Krauthammer is due.
What does Miers think about Diet Wild Cherry Pepsi, though?
Dunno. That it’s SATAN’S BEVERAGE?
Well, it’s obvious DWCP isn’t what Jesus would have drank, but I’m not sure it’s quite up Satan’s alley either.
Satan’s more of a TAB guy himself, IIRC.
According to Frum, Miers was partially responsible for the administration arguing in favor of affirmative action in the Grutter case.
I think Satan had his turn with New Coke.
We all know how that ended up.
From what I understand, Miers was a Democrat until she left the party at age 45. Since she’s 60 now, that would put the switch at around 1990. Maybe something to consider when you look at statements she made on or before 1990.
Jeff, what do you think of the theory that the Corner floated the other day? Basically, Bush nominated Miers because she’s an Evangelical, and he’s hoping that his base will recognize that because he obviously can’t come out and say it.
That’s not going to be enough to convince Jews (err, “neo-cons”) and most libertarians, but I think it makes sense that with this choice he’s winking at his Southern Christian brethren.
I don’t care about the party affiliation. It’s the thinking behind it that gets me.
Has she changed her thinking? Frum’s suggestion is extraordinarily disturbing to me, and seems to suggest that she brought the worst of the left with her.
O’Connor punted on affirmative action. Do conservatives really want to replace her with someone who is going to be more likely to move left on the issue?
Matt —
I think that’ right, and tried to suggest that in my post. But I think he miscalculated by not understanding that many conservatives are not looking for the overturn of Roe v Wade on religious grounds, but rather because it was a bad decision.
I think we’re seeing conservatives who are confident in the intellectual strength of their legal ideas, and want someone they know to be an articulate spokesman for those beliefs on the bench.
The idea the critics are elitist or sexist is absurd. After all, the name many of us were most excited about was Janice Rogers Brown.
It’s been suggested lots of places that she’s been nominated as reliable vote, I thought it was interesting that her church membership would be used as some sort of hidden proof of that reliability. Shades of the Dred Scott mention in the debates.
I like your thinking on Janice Rogers Brown. Working for the Dept. of Corrections to pay for your B.A. from Cal-Sacremento is about as far from elite as I can imagine.
Um, yeah, I don’t care if she is Evangelical or not. If she is, great, but if she is a lousy judge she’ll do a disservice to those views and the reputation of that constituency. Which means if Bush really wanted to watch out for Evangelicals, he would have dug a little harder. Of course, watching out for the Constitution wouldn’t hurt, either. I wonder what her opinion of Kelo is – I know more than a few commercial litigators who don’t mind eminent domain for just about anything – more shopping malls means more business!
While I agree with you and Krauthammer about the type of judge I’d pick, the question is whether to tell the guy who got all those votes for president to go back to the drawing board. It seems to me that the only legitimate reason to reject a nominee is if you can argue that she is “unqualified.” Bush has essentially asserted that “best corporate lawyer in Texas” is a sufficient technical qualification for SCOTUS. Krauthammer (the world’s best and smartest columnist) and others insist that such a qualification isn’t sufficient because it doesn’t show a familiarity with important issues of constitutional law. It seems to me that the idea that constitutional law is a rarefied form of rocket science is undercut by the recent performance of the court and by the fact that most opinions are written by a bunch of 25 year old clerks. A more important practical consideration is that there are at least 100 people who think that membership in the US Senate is a sufficient qualification for SCOTUS and, as we all know, no one in the Senate is familiar with constitutional law.
Jeff- BTW good call on linking to Virginia Postrel. She has the best info I’ve seen on whether Miers meets the claims Bush makes for her. What does her standing in Texas law means? What is the culture of Texas (and in particular Dallas) law firms?
Leahy is not to be believed. If there is corroboration, I would certainly be worried about her selecting Warren as her “favorite”. I still don’t know what Bush knows about her. He selected her; she will have a hearing and either be confirmed, voted down, or withdraw.
I’m not elated about the pick, but it’s a done deal now.
I think we need to be really careful here. If Myers pulls out, Bush could nominate someone else we really disapprove of more. We only have to look as far as the AG to see our next nominee.
Let’s wait until the hearings. If she blows it there, she was never meant to be on the Court. She may yet surprise us.
I really don’t believe the President could nominate anyone we would like to see, a la Luttig/JRB … I don’t think the Senate has the spine or for that matter the Repubs on the Judiciary to have those with proven track records be selected.
I’m in a holding pattern on this and have to say I’m getting a bit disgusted with the elitist attitude I’m seeing from those of my cohorts on the right. The President has the right to select anyone he sees fit. Let the Senate do their job.
As I wrote over at Volokh, the current debate isn’t really about qualifications. It is a debate about credentials. The terms are not synonymous.
Clearly, there is some correlation between good credentials and good qualifications, but we can each point to many counterexamples. There’s a reason that we don’t hire directly from resumes, but rather run interviews.
FWIW, I don’t believe, ab initio, that Miers is obviously not qualified. Nor do I believe, ab initio, that she is obviously qualified. Belief, frankly, is overrated; I prefer evidence.
I don’t have much confidence in the Judiciary Committee, but it sure looked to me like the Roberts hearings answered many of the questions of both supporters and skeptics. Perhaps we should try that again. If she can’t handle those bozos, vote her down. (A radical proposal, I know—an up or down vote.)
She wouldn’t have been my first choice, but then I didn’t get all those votes last year. How about we wait until we actually hear her answer a few questions before we either fit her for a robe or kick her down the courthouse stairs?
I disagree, (for purposes of this rant–heretofore a “thought-poem”) that it’s appropriate to designate the Supreme Court as the “elite institution.” There is no basis for asserting that intellectual brilliance in the Supreme Court would be potentially any less disasterous or misguided than in the Executive office–ala Woody Wilson. The Supreme Court is nine people with a constitutional role. They are not to be presumed “nobler” than the holders of other offices. They will inevitably be ideological and attempt to accrete governing power.
Their power lies in their votes, rhetorically justified by written reasons–not in their purported wisdom or access to truth. They are and should be subject to impeachment for power grabs–bald or subtle. It’s unfortunate that the impeachment power has been so little used over the years that it is now considered a nonviable “nuclear” option. (Why is this so verboten that we must now consider reining them in via a new limitation in the form of term limits?) Heads should have rolled during the Warren years to prevent the Supreme Court from becoming the front lines for cultural warfare–a role in which it should have very, very minimal power.
Supreme Court Justices are not intended to be our philospher kings, or some sci-fi Guardians of Civil Liberties. But this was the belief of the Warren Court, which in its scholary, elite, righteousness got us Roe etc. And despite the unassailable justice done in Brown v. Board, that case (especially the enforcement order) set a dangerous precedent for the Court’s role as ultimate arbiter and enforcer of social good.
It is folly to believe that there is a “right” way to interpret the Constitution. There are only “favorite” ways. Our protection from tyranny does not lie in the sophistry or wisdom of judges and lawyers, but in the process and the wisdom of the masses.
The Court does not need more geniuses or Constitutional scholars. Setting them up as some holy oracles is the idealistic folly of the Left. It is the Left that believes in the perfection of the human race under the guidance and control of those able to divine justice and truth. Conservatives, rather, acknowledge the imperfection of man. The Founders harnessed this imperfection to the end of a free nation. Because of this recognition, the U.S. may appear a cockroach to much of the outside world, which likes to see themselves as our evolutionarily moral superiors. But through our process we survive and thrive, while they dictate, suppress and turn with the seasons.
Okay, that’s a bit dramatic. The point is, we don’t want to create a judicial body drunk on its own brilliance. Meirs is no scholar, but she is certainly fluent in the Constitutional process and the judicial role. She brings unique and important points of view regarding Executive Office power, war-room strategizing, commercial leadership, private sector tax payer, and red-state church-goer.
If she’s shot down over concerns about her ideological disposition etc.–fine. That’s part of the process. But the reasons given by the right should not be that she’s insufficiently “elite” to join the pointy heads who rule over us.
When asked her favorite justice, why in the world would she pick someone based on their administrative skills? That’s just bizarre. I mean, really BIZARRE.
I don’t think they are “nobler.” But I expect them to be skilled interpreters and excellent researchers.
The distinction between credentials and qualifications is a good, if small, one. And as I’ve said, my respect for process has prevented me from coming out against Miers in advance of any evidence that I shouldn’t support her.
However, if she is for affirmative action and proportional representation, I don’t believe her to be conservative in any important sense (Roe should be fought on its legal merits, not its religious implications). And so, if what Frum says is true, I’m going to fight her.
Jeff G.,
The only part of this post that I take issue with is the idea that non-socons are a larger part of the Republican base than most people think, and that they are now showing their influence on the Miers nomination.
For one, there is no reason why a social conservative cannot be a “legal” conservative (whatever that means). Few social conservatives are going to support someone that they feel may be inadequate simply because she may be conservative.
Secondly, while I haven’t been following this too closely I have gotten the feeling that this lady is not terribly conservative anyway. This seems to be a concern of some bloggers.
Finally, as regards the Rep base, I feel that a lot of bloggers view politics through a blogging lens. I have a feeling that libertarians, along with some other groups, are overrepresented in the blogging world (especially political blogs) versus the real world. I think that this is especially true among the bloggers commanding higher levels of traffic.
Otherwise, a fine post. And kudos for the roll you seem to be on lately. A lot of good content.
Nathan —
You’re right about the cross-over between social cons and legal conservatives; I thought I’d made that qualification in the post. If I haven’t, I’ll go back and do so.
Other than being “on the record” as being opposed to her nomination, what can one do? GW is not going to withdraw her nomination. If he thinks that he has made the right decision, no one is going to talk him out of it.
Unless she is a total flop in the hearings, and I don’t think she will be, her nomination is going to the floor for an “up or down” vote.
I’m sure that the backlash from this nomination is known by GW. I can hear him now, “I don’t care what they say, I KNOW her and I KNOW what kind of judge she will be. Get her confirmed.”
I’m with you on the IF’s.
”…if she is for affirmative action and proportional representation….I’m going to fight her.”
I hope that’s not a Dowdification; it’s (in part) what I infer from your comment.
And I agree wholeheartedly. Anyone who believes in either of those has a profoundly different understanding of the Constitution than I do. This difference is so great that I cannot believe that such a person is capable of reading text and inferring the same thing as any person both honest and rational.
Justices of the SCOTUS swear an oath to (in part) “faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States.” Any justice who would support either of the policies you note above is incompetent or forsworn. (That would be OR, not XOR.)
I’d just like a little bit of evidence (a category into which I don’t put an offhand comment to a city council over a decade ago).
Of course I’d also like a House that would perform its duty of removing judges for bad conduct. One out of two, perhaps?
Jeff G.,
Oh, maybe you did.
There may be a problem with Miers form a prudential perspective. But Krauthammer, Kristol, Will and most of the NR guys have rarely tried to make the case. They use exaggeration, innuendo, and insult to claim she is not qualified, and that Bush is not qualified to judge judicial qualification.
If they are right, I wonder why they supported Bush at all in the last election cycle. Particularly Will, who seems to disagree with Bush on almost everything.
Methinks they have been taking debating lessons from the Democratic Underground.
In any case, I’m for gathering and examining facts, for hearing the nominee out, and judging her on her own merits. This takes time, and prissy snits (h/t InstaPunk) don’t cut as argument in my book.
Jeff, if you believe and can argue that she supports affirmative action, that makes for a big strike against her. (However, I must admit that ideological and experiential diversity is a useful thing in any context, as otherwise groupthink sets in. Just look at the CIA and the modern left.)
However, before you judge her on the representation, it would be useful to be aware of the details of the issue. I can’t speak to Dallas, but I lived in Austin in the 80’s. All members of the city council were selected on an at large basis. This pretty much meant that any part of town that had significant different needs than other parts of town got no or token representation on the council. This can be a problem, particularly in light of decisions like Kelo. So, I’m sensitive to attempts to address the problem.
I’m a small l liberal and a small d democrat. (Though I have not had a so called “liberal” Democrat, or for that matter a Democrat I’ve been able to conscientiously support since I reached the age of majority. Of course, if Lieberman had won the nomination in 2004, I might have made an exception.)
The liberal part of it can be debated at a later time, but we probably agree on much more than we disagree. However, the democrat means I believe in representative government, and at first blush, and based on my experience in Austin, it’s not clear that Miers was concerned about something other than I would be concerned about.
Miers is, allegedly, in favor proportional representation.
Nu? The biggest mistake (well, a big mistake) of conservatives was opposing Lani Guinier on that theory. Let there be proportional representation (real proportional representation, not “The votes of minorities have to be counted out of proportion to even their fraudently-inflated numbers) in local governments.
How long before urban minorities realize that they no longer have to stay on the Democrat electoral plantation? And the Democrats be able to stuff that djinn back in the bottle?
Goldstein:
I am nevertheless heartened by the willingness of so many on the right to criticize the choice.
This is the most important point you make here. It makes nonsense of the belief among the totalitarian Left that pro-Bush conservatives —especially the Christian kind— are too dim or loyal to dissent from the President.
The anti-Bush crowd are certainly scripted: anything that can be dredged up or construed as harmful to the Commander-in-Chief is the first and only draft they publish. Which makes it easy to ad-lib if your only standard is to be cynical and pessimistic.
I can’t seem to get your trackbacks to work. I linked to this post from Some thoughts on the Harriet Miers kerfuffle
i guess the basic question here is, is isomorphism with the President’s views on social engineering adequate grounds for nomination? Surely there are other evangelical candidates with additional qualifications.
It doesn’t bother me that Roberts is RC, because his scholarship is unimpeachable.
I think Miers can be trusted to do exactly what GW says she’ll do, and that is, hold unswerving to the views they share on abortion, ID in schools, ESCR, gay marriage, etc, for the next twenty years.
I think we could use someone who admires Warren Burger.
Let’s face it, the Japanese-American community in this country has been getting real uppity lately.
Seriously, though, has anyone considered that Bush may be playing a nine-inning game while the pundits are playing three-and-out? He’s had his Chief Justice confirmed. The Dems would likely not block Miers, his next choice. And when his third comes along (we still have an 85-year-old Justice sitting, remember?) what grounds would they have for challenging ANY selection?
McEnroe:
I think we could use someone who admires Warren Burger.
Let’s face it, the Japanese-American community in this country has been getting real uppity lately.
You mean Warren Burger, the famously sleazy male stripper?
I don’t see what is do complicated about the Constitution that we need “Constitutional Scholars”. Isn’t the strength of the Constitution that is was written to be easliy understood by anyone within the range of normal intelligence? Didn’t the Europeans just fail to ratify a constitution that was more like our IRS code?(try carrying a copy of that around in your shirt pocket!)
It’s dangerous for us to think there is some mystical meaning somewhere between the lines that takes years of studying to understand. Isn’t this exactly what we are against-finding things in the Constitution that aren’t actually there?
You know, when my husband leaves the toilet seat up and I’m feeling like I love him and he is the greatest man alive, I just put the toilet seat down. I might say, “Honey, I wish you would put the toilet seat down”
But when my husband leaves the toilet seat up and I am already irritated with him, it infuriates me. How can he be such an insesitive jerk, I seethe. He did this just to piss me off. And I might say, “You left the toilet seat up! You inconsiderate a$$hole. Are you trying to ruin my life?”
With many of the pundits’ behavior I’ve seen over Mier’s, I see scenario number 2.
It isn’t the disagreement with the nomination that bothers me, it’s the vitriol behind it. Disagree with it, fine- great even. I love an honest discussion.
But there seems to be a lot of personal outrage and disappointment behind it. Which makes me suspect these people either didn’t really support Bush but wanted this one thing out of him and therefore pretended to. Or there are some huge egos out there that think just because they had an opinion, Bush was supposed to be their Own Personal President and heed their advice.
Hmmmm.
All of you supporting Miers better hope like hell you’re right. If she gets confirmed and turns out to be another O’Connor, you can bet your ass I’ll be saying “I told you so” every single day for the next 30+ years.
What—whoa—whoops—hold the phone!
JRB is a fellow alum of CSU Sack-o’-Tomatoes???
Well, no wonder she’s so sensible, if she went to the same school I did. Whoo-hoo! Now I have even more reason to support her as the substitute for Aunt Harriet.
…Scalia’s miserable opinion in Raich…
Tsk. In the end, it’s always about the pot, isn’t it?
Sigh.
Maybee,
I’ve never understood that toilet seat outrage. I grew up before Women’s lib, and my mother taught me that each person adjusts the seat to his or requirements. If it is already in the position you need,you lucked out,if not,you don’t think twice about changing it. This approach has always seemed reasonable.
I’m not sure I really want to understand the anger from women,but perhaps if you understand it, you can help me.
Techno-
My best answer is that is generally isn’t really about the toilet seat. It’s about all the other issues (you don’t respect me! you don’t appreciate all I do around the house!) and it just manifests itself in toilet seat outrage.
Unless its the middle of the night, and you’re a girl, and you expect the seat to be there, and you sit down. Then it really is outrage about the toilet seat.