October 13, 2005
HER ANTI-BLOGGER STANCE MAKES HER UNCONFIRMABLE
The Miers Testimony (James Taranto, Best of the Web, 10/13/05)
President Bush last week expressed his confidence in the constancy of Supreme Court nominee Harriet Miers, saying that "20 years from now she'll be the same person, with the same philosophy," as she is today.... But if she is a political conservative, then she has not remained constant over the past 20 years.In a break from his usual form, today Taranto devotes the entirety of Best of the Web to Ms. Miers' testimony in Watson v. Dallas, which he describes, disingenously, as a voting rights case. Before we get to that, however, let's pause at the argument that Ms. Miers' testimony about the Federalist Society -- that it was too political for her -- tells us anything that is relevant today. I like the Federalist Society. It does good work. It is, however, obscure to the nation as a whole and certainly political. The idea that this makes a difference to anyone is simply indicative of the extent to which the commentariat has lost its collective mind.We base this on a look at her testimony in Williams v. Dallas, a voting-rights case from 1989, when Miers was an at-large member of the Dallas City Council....
The Drudge Report has picked up one aspect of this testimony: her declaration that she had refrained from joining "politically charged" organizations like the Federalist Society, even though she had been a member of the liberal Progressive Voters League....
Her description of her own positions on the City Council suggests that she was far less conservative than the White House would have its supporters on the right believe. She endorsed such fashionable liberal causes of the 1980s as divestment from South Africa (page 47) and the activities of a "Homeless Task Force" (page 49). She also recounts her efforts on behalf of welfare spending (page 49):
I have strongly advocated the restoration of the $200,000 dental program as a model program in terms of public partnership. I have supported the maternal nurse care that was eliminated, be restored. The day-care money that was deleted I have asked be restored because they principally benefit women and minorities in my view....[A] favorite recent O'Connor opinion among conservatives was her stinging dissent in Kelo v. New London, the case in which a five-justice majority upheld the use of eminent domain to transfer property from one private owner to another, even though the Constitution limits it to "public use." In her testimony, Miers didn't directly address the question of eminent domain. But she described a tour of a South Dallas community in which the homes were not to her liking....The expansion of eminent domain that led eventually to Kelo came about because the court in decades past decided that combating "urban blight" was a "public use" for which the government could confiscate private property. Miers's rather condescending thought that people in small, densely packed homes don't "have much of an existence" leads one to wonder if, were she on the Supreme Court, she would respect the property rights of those South Dallas residents or others similarly situated.There's one section of the testimony, however, that may bring cheer to conservatives who oppose or are uneasy about the Miers nomination. She tells the lawyer questioning her that she would not have run for the City Council if that would have allowed a minority candidate to win (pages 35-36).... If Miers still feels this way, perhaps she could step aside now in favor of a "viable minority candidate." Janice Rogers Brown, anyone?
As for Williams v. Dallas, 734 F. Supp. 1317 (1990), it was an ultimately successful challenge, under the Voting Rights Act, to the use of at-large councillors on the Dallas city council. At the time of the suit, one of the at-large councillors was Harriet Miers. These suits are fairly common and all allege that the use of at-large councillors dilutes minority votes. For example, assume a city that is 40% black and 60% white. The Voting Rights Act assumes (because it assumes that only blacks can represent blacks) that the proper make-up of the city council would be more or less 40% black and 60% white. At-large councillors will, under this theory, always belong to the majority. Lets say that the city has ten wards and the councillors break down as the Justice Department expects. If there are two at-large councillors they will be elected by the majority and presumably members of the majority. As a result, instead of the minority having the appropriate 4 votes out of 10, it will have only 4 votes out of 12, diluting its representation.
In this sort of suit, the plaintiff's lawyer, in taking Ms. Miers' testimony, will want to show that she doesn't represent the minority community and Ms. Miers will want to show that she does. In other words, without calling into question her truthfulness under oath, Ms. Miers every legitimate interest as a witness and as a councillor at-large was to show that she was a legitimate representative of the entire city. Thus, Taranto, in poking fun at her for testifying that "I do intend to vote based on the best interests of the entire community" completely misses the point. His strained, not to say bizarre, effort to tie her to the majority in Kelo because of her testimony nearly 20 years ago about the quality of housing in Dallas suggests that he didn't miss the point by accident. He missed the point with intent.
The final sign that Taranto, like the posters at NRO and the Kristolniks at Weekly Standard are simply ignoring the practical politics of the situation comes at the end. He suggests that Miers stand aside for Janice Rogers Brown. There's a lot to be said for nominating Judge Brown, but none of it is practical. The Senate won't confirm Judge Brown; it will confirm Harriet Miers. What would it accomplish for the President to pick a nomination fight when he would lose and his loss would be caused by Republicans?
Posted by David Cohen at October 13, 2005 10:57 PMThe other point about Mier's testimony 15 years ago in re the FS is that since then (1) she has spoken before the FS on at least a few occasions and (2) the exec vp of the FS has taken a leave of absence to promote her candidacy for the SCt. David Broder, I believe covered all this last week.
The desperate mud-flinging by the David Frums of the world is increasingly pathetic.
Oh, btw, that reminds me, here's Frum himself last July 4:
" in the Supreme Court sweepstakes: Keep an eye on Harriet Miers, White House counsel. Miers was the first woman president of the Texas Bar Association, a co-managing partner of a 400-lawyer firm in Texas, a one-time Dallas city councilor, and by the by, the personal lawyer to one George W. Bush. She joined his staff as governor, served as staff secretary (Richard Darman's old job) in the first administration, and now oversees the White House's legal work. She is quiet, discreet, intensely loyal to Bush personally, and - though not ideologically conservative - nonetheless firmly pro-life. Plus she's a woman. Double plus - she'd be a huge surprise, and the president loves springing surprises on Washington and those pundits who think they know it all."
Sound like someone who'd oppose the nomination"
Wonder what happened in the meantime. Maybe it's the pro-life part he objects to.
Posted by: Jim in Chicago at October 13, 2005 11:57 PMSo, the senate won't confirm Janice Rogers Brown? That's thanks to McCain, who allowed the Democrats to preserve the 60-vote requirement. It's not for nothing the Republicans are called the Stupid Party.
I don't know OJ, it was announced here early morning, and Mrs. Wisdom, who follows politics far less closely than I do, groggily stated, "Bush sent her up to purposely get thrown down" (this was 5 minutes after news broke)
I disagreed.
It looks like the only thing that she got wrong is that Bush set her up to get thrown down by the right, not the left.
He must have been planning a Gonzalez strategy all along.
I'm one more "revelation" from withdrawing my support. She has shown me nothing to warrant it, and Bush has done plenty to call his motives (I honestly can't fathom them) into question.
Posted by: Bruno at October 14, 2005 12:52 AMYou can't fathom why he would put up a pro-life, pro-business Texan evangelical who has been a part of his inner circle for years? Turn up your fathomers or something, because it seems pretty obvious to me.
Posted by: Timothy at October 14, 2005 1:00 AMHer two short years in making decisions for herself (the city counsel) richly demonstrate that she's a wild card who's going to break your heart on a fairly regular basis. If we can't even improve on O'Connor with this Prez and this Senate, it aint ever going to happen.
Posted by: curt at October 14, 2005 1:43 AMLet's see -- Miers took these actions in 1989, and they are supposed to be an absolute window into her soul 16 years later, because nobody can change their political beliefs in a mere 16 years, therefore what a person says or did then automatically should disqualify them in the eyes of coservatives for any major office.
Posted by: John at October 14, 2005 2:30 AM
It's obvious from the previous comments that Miers is a cipher to everyone. I repeat my previous comment: we are replacing O'Connor with someone who might be more conservative than O'Connnor, but no one knows for sure. What have we gained?
Posted by: jd watson![[TypeKey Profile Page]](http://brothersjuddblog.com/nav-commenters.gif)
at October 14, 2005 5:05 AM
GG
"As you know, you go into confirmation hearings with the Senate you have, They’re not the Senate you might want or wish to have at a later time."
Being a witness has absolutely nothing to do with being a judge. Two completely different things.
Posted by: Mikey at October 14, 2005 9:14 AMjd --
The other question is what could have been gained under current conditions. Take the following list:
Collins
Snowe
Chaffee
Spector
Vonivich
DeWine
Hagel
McCain
And name three who are dead solid certainties to confirm Brown, or Luttig, or Jones, or Owen, or McConnell, or any of the other high-profile names that the Democrats and big media outlets had done months or years of op research on.
If you can pick out three of those eight who would have been a lock to vote for confirmation, then Bush made a major strategic mistake. If not, then it's best just to wait for the hearings, where, due to undertainty on the Republican side, Miers cannot use the same tactics that Roberts used this summer, or Ginsberg back in 1993. You can be evasive before the Judiciary Committee when it's obvious the questioning has a partisan tinge, because your side is going to cover your back, but if Harriet is evasive to both Democratic and Republican questioning, the cover support won't be there and she won't be voted out of committee.
Posted by: John at October 14, 2005 9:48 AMMcCain, DeWine, Voinovich, and Hagel are sure votes for Luttig, McConnell, and Owen. Jones I think would not win confirmation.
Posted by: rds at October 14, 2005 10:28 AMrds --
So they're going to stand up for Luttig, McConnell, and Owen with more backbone than they stood up for John Bolton in the wake of the Democrats and the media's onslaught this past spring? Or with more backbone than they did when the "Gang of 14" was created to avoid the filibuster fight?
You have more faith in their strength than I do.
Posted by: John at October 14, 2005 10:50 AMThe question isn't so much who the Senators will vote for themselves -- any Bush appointee, including Miers, will get at least 50 votes. The question is which appointments will the 7 GOP moderates agree constitute "extraordinary circumstances" allowing the Dems to filibuster without any threat of the nuclear option. We already know that Brown, Owens and Pryor are "extraordinary." It's pretty clear that a fifth vote to overturn Roe is extraordinary. Harriet Miers is not extraordinary. Is McConnell or Luttig? Presumably when the President "conferred" with various Senators before making the appointment, he got guidance as to who would get an up or down vote, and who wouldn't.
Posted by: David Cohen at October 14, 2005 12:20 PM