October 21, 2005

IT'S JUST PERSONAL:

Saving Face (Charles Krauthammer, Oct 21, 2005, Townhall)

It's no secret that I think the Harriet Miers nomination was a mistake. Nonetheless, when asked how she will do in the hearings, my answer is, I hope she does well. I have no desire to see her humiliated. Nor would I take any joy in seeing her rejected, though I continue to believe it would be best for the country that she not be confirmed for the Supreme Court.

And while I remain as exercised as anyone by the lack of wisdom of this choice, I part company from those who see the Miers nomination as a betrayal of conservative principles. The idea that Bush is looking to appoint some kind of closet liberal David Souter or even some rudderless Sandra Day O'Connor clone is wildly off the mark. The president's mistake was thinking he could sneak a reliable conservative past the liberal litmus tests (on abortion, above all) by nominating a candidate at once exceptionally obscure and yet exceptionally well known to him.

The problem is that this strategy blew up in his face. Her obscurity is the result of her lack of constitutional history, which, in turn, robs her of the minimum qualifications for service on the Supreme Court. And while, post-Bork, stealth seems to be the most precious asset a conservative Supreme Court nominee can have, how stealthy is a candidate who has come out publicly for a constitutional amendment to ban abortion?


So she is a conservative, isn't a stealth candidate, the fundamental objection to her is her conservative view on the most important constitutional issue of the age, and her withdrawal is necessary for the sake of conservatism? These guys aren't even pretending to make sense anymore.


MORE (via mc):
Interesting to compare and contrast the neocon passion on this nomination to the more sensible analysis of a liberal opponent, Deferential Calculus (DAHLIA LITHWICK, 10/21/05, NY Times)

[C]hief Justice Roberts and Ms. Miers may have more in common than you think. Both their nominations reflect a deep concern about a too-powerful court and the president's troubling new hostility toward the institution.

Consider this: Chief Justice Roberts's judicial philosophy - to the extent he admits to one - is of "modesty." Throughout his public life, an overwhelming jurisprudential concern has been the constraint of judicial power. [...]

[N]owhere is John Roberts more deferential as a judge than when it comes to the executive branch. In his rulings when he sat on the United States Court of Appeals for the District of Columbia, he offered expansive readings of presidential authority. He ruled on that court that the Geneva Conventions do not confer on so-called enemy combatants any individual rights. And he was unwilling to answer at his hearings whether Congress has the power to end a war started by the president.

If you think of John Roberts as the justice who will urge a far more sweeping judicial deference - particularly to the executive branch - the subsequent Miers nomination makes sense.


It's especially odd that the neocons, who are so pro-war, can't see why the commander-in-chief wants support on the Court.

Posted by Orrin Judd at October 21, 2005 9:25 AM
Comments

OJ,

The Hamdan decision was Roberts' job application. He was smart enough not to actually be the author, that would have been too obvious, but the White House certainly got the message. One thing that has emerged in the last few weeks is that Miers was a big Roberts' booster throughout the process. The WH counsel's office functions on two rules: (1) Protect the power of the Presidency; (2) When in doubt, see Rule 1.

Posted by: Dan at October 21, 2005 9:48 AM

They are still missing the point: someone who advocated amending the Constitution to abrogate Roe v. Wade has, ipso facto, affirmed Roe v. Wade.

Posted by: Lou Gots at October 21, 2005 10:04 AM

How is it affirming Roe to want it overturned? And I think it makes perfect sense to be concerned about Miers as a Supreme Court justice given her inexperience with constitutional principles. As a conservative, I have other concerns besides Roe, and first and foremost, I want a justice who understands constitutional law and uses recognizable constitutional principles, not just somebody who gives me the results conservatives want.

Posted by: sharon at October 21, 2005 10:12 AM

Uh, guys, Krauthammer is pro-choice. That's why he wants Miers defeated. He can't quite say that and maintain his right-wing cred, so he pretends she's too dumb to understand the Constitution.

And when he says that he hopes she does well in the hearings, he's lying though his teeth. If Miers does well, Krauthammer's she's-stupid objections look truly stupid. Who knows, Krauthammer might then actually have to admit that he opposes Miers because she's a pro-life zealot.

I don't have any trouble admitting that. Miers' anti-abortion crusade is exactly why I want her defeated. I just wish Krauthammer would have the intellectual honesty to admit the same.

Posted by: Casey Abell at October 21, 2005 10:16 AM

The Miers nomination is a disaster and the conservative chatting class has made it so. What do you call a conservative who has been mugged by her own party (and has lifetime tenure)? Prospects are not good.

Conservatives have been saying for years that the nomination process is too vicious, too ideological, too geared toward a media battle. All true and all caused by the other side. Except no one should buy that now.

What possible good did conservatives expect to come from this vocal opposition to Miers?

Casey Abell's depiction of Miers as a pro-life zealot is ignorant. He apparently understands nothing about local politics. Many, many, many Republican--and Democrat--politicians sign these things because it is political suicide not to.

Posted by: Kevin Bowman at October 21, 2005 10:32 AM

Okay, Miers' anti-abortion crusade - her campaign to get the ABA to drop its pro-choice stance, her support of right-to-life groups and candidates, her running for office on a strongly anti-abortion platform - was all fake. And I'm ignorant to look at such obviously fakery.

Fortunately, Roberts didn't have any such fake anti-abortion credentials, so I wasn't obliged to be ignorant of them.

Meanwhile, back in the actual universe, Krauthammer opposes Miers because she IS a pro-life zealot. And he should have the cojones to admit it.

Posted by: Casey Abell at October 21, 2005 10:52 AM

Kevin,

Take your point, but how then do you explain her contribution in 2000 to Don Stenberg, who was Attorney General of Nebraska running for the Senate against Ben Nelson. In case you don't know, Stenberg is the very epitome of a pro-life zealot. As fr as I can tell from the public record, this is the only political contribution in a non-Texs, non-national, race that Harriet Miers ever made. I know a few people from here (TN) that gave to Stenberg, and they would qualify as pro-life zealots. Heck, I would have, except I was convinced that it was critical for Bush to beat GOre in Tennessee and so I concnetrated 100% of my time and money here. Those of us in the know know she is one of us.

Posted by: Dan at October 21, 2005 10:53 AM

The Frum/NRO/Kristol led crusade against Miers has indeed been a disgrace. Mugging is a good description. They were brutal from the beginning and remain so. When they are rightly called snobs and sexists, they respond with venom at the people who dare say the truth. They look at greeting cards and mock her for that. They say she is illiterate because she has some commas out of place. They mock her background. They mock her legal experience on the basis, best I can tell, that she did not practice in NY or DC. They, in short, do the same types of distortions that they have spent the last 20 years saying leftists did to Bork.

Posted by: Bob at October 21, 2005 11:03 AM

And Bush doesn't like Bork. He gave a speech in 1999 and took a shot at Bork, disputing those who sasy AMerica is "Slouching Towards Gommorrah." OJ could probably find the quote.


http://www.washingtonpost.com/wp-srv/politics/campaigns/wh2000/stories/bush100699.htm

Posted by: Dan at October 21, 2005 11:09 AM

sharon:

Once you know the results you want it's easy enough to cook up principles to fit them--look at Bush v. Gore.

Posted by: oj at October 21, 2005 11:10 AM

I'll take any help I can get to defeat Miers. But it's pretty funny to hear Mr. Arrogant Weird-Beard advising anybody on how to get a nomination through the Senate. As I recall, Weird-Beard did a real good job of botching his own nomination.

Posted by: Casey Abell at October 21, 2005 11:17 AM

And if she'd just taken a class from him at Yale he'd be testifying on her behalf at the hearings.

Posted by: oj at October 21, 2005 11:24 AM

Google coughed up a story about Bush's 1999 swipe at Weird Beard. The guy who penned the line was Michael Gerson, as USA Today recounted:

"Bush is an active editor, says Gerson, who likes tight writing and shorter speeches. When he drafted a 1999 Bush speech critical of Republicans who see America as "slouching toward Gomorrah" on social issues, a conservative firestorm ensued. Many thought it a brazen attack on former jurist Robert Bork and his 1996 book on American moral decay: Slouching Towards Gomorrah."

Bush backed Gerson strongly after the "firestorm," which probably indicates how seriously he takes the current wingnut conniptions, including Weird Beard's own.

Posted by: Casey Abell at October 21, 2005 11:24 AM

Bush Says GOP Must Turn From Negativity (Terry M. Neal, October 6, 1999, Washington Post )

Texas Gov. George W. Bush today criticized his party for espousing negative rhetoric, failing to portray a message of inclusiveness and forgetting that conservative policies should benefit those left behind in an affluent society.

Bush's remarks, during a speech on education, marked the second time in a week that the Republican front-runner has challenged his party to rise above the perception of it as a repository of uncaring and mean-spirited ideology. Last week, he stunned many supporters on Capitol Hill when he denounced a congressional GOP budget plan that would save money by deferring tax credits for the working poor.

"Too often, on social issues, my party has painted an image of America slouching toward Gomorrah," told his audience at the Manhattan Institute, a conservative think tank. "Too often, my party has focused on the national economy, to the exclusion of all else, speaking a sterile language of rates and numbers, of CBO and GNP. Too often my party has confused the need for limited government with a disdain for government itself."

He then declared: "This is not an option for conservatives. . . . Our founders rejected cynicism, and cultivated a noble love of country."

As he has throughout this early stage of his campaign, Bush used today's speech to stake out the middle ground in American politics and distance himself from the GOP's right wing. Though Bush has stood with his party on a number of key issues, he has taken opportunities to show that his style of conservatism has a softer edge.

In presenting his second major education initiative, Bush explained how his "compassionate conservatism" would translate to real policies. While his ideas generally hewed closely to long-favored conservative themes, such as school vouchers and charter schools, he indicated his intention to avoid some of the party's hot-button rhetoric and ideas. [...]

Bush's education proposals and his overall message defy standard political orthodoxy that says Republican candidates must run to the right in seeking their party's nomination and move back to the middle for the general election. In Bush's case, he has already moved to the middle -- a luxury his strong front-runner status affords him. By attempting to redefine conservatism, analysts say, Bush has effectively adopted his own brand of triangulation, the term originally used to describe Clinton's political strategy. [...]

House leaders declined to comment on Bush's remarks, though some said privately they believed they were aimed more at Patrick J. Buchanan and other conservative presidential aspirants rather than at Congress.

Last week, campaign spokeswoman Mindy Tucker said Bush was not trying to distance himself from the unpopular Congress, but simply expressing his disagreement on one relatively narrow policy matter. Today, communications director Karen Hughes insisted that Bush was not attacking the GOP but the image created by partisan foes. "There's recognition that conservatives have been misportrayed," she told reporters. "There's recognition that there is a public perception that our party is mean-spirited."

But when a reporter today asked Stephen Goldsmith, Bush's senior domestic policy adviser, about the line in Bush's speech suggesting the party had confused the need for limited government with a disdain for government itself, he said: "It's intentionally in the speech, and it was meant to send a message."

Bennett, who is advising Bush but has not endorsed anyone, said: "What he wants is a broader party with a different message and never yield the high ground of compassion to the Democrats. They don't deserve it."

Posted by: oj at October 21, 2005 11:34 AM

Kevin:

Her zealotry is why the neocons hate her, just as they hated W.

Posted by: oj at October 21, 2005 11:44 AM

I cannot wait til she's confirmed.

I hope the WH send invites, big fancy ones delivered by a footman in full livery, to her swearing-in to all the self-selected leaders of the "conservative base".

Posted by: Jim in Chicago at October 21, 2005 12:11 PM

Put a fork in Meiers, shes done. Now you all can indulge in a few months of complaining about how the neocons/econocons/libertarians "betrayed" you.

Posted by: Anon at October 21, 2005 12:31 PM

And posts videotape of the delivery, so the screechers can't hysterically attack Bush one last time with the claim they weren't invited.

Posted by: Raoul Ortega at October 21, 2005 12:32 PM

Lou:

No, they haven't. They've advocated doing the Justices job.

Posted by: oj at October 21, 2005 12:37 PM

Wish I could share the optimism about Miers' defeat. But she'll easily surpass the debacle that Bork made of his hearings. Maybe she won't be quite as smooth as Roberts, but she'll be more charming.

Speaking of Weird Beard, I rustled up something I wrote a while back...

"Bork came to the hearings looking like the hero of the fifties sci-fi classic: Iím The Maddest Scientist Ever. He proceeded to sound like the hero of the sixties absurdist farce: Iím The Smartest Guy In The World Because I Say So. All the Democrats had to do was put him on TV, at length and unedited. By the end of the hearings, most Republicans would have voted against Americaís least-favored weirdo if not for loyalty to Ronnie. Itís pretty amazing that he scrounged up 42 votes from any party other than the Monster Raving Loonies."

Still sounds about right to me. Bork seemed to go out of his way to get every Senator p.o.ed at his arrogance and scorn. Miers should have no trouble avoiding those pitfalls.

Posted by: Casey Abell at October 21, 2005 12:42 PM

The key to being the smartest guy in the room is acting like the dumbest.

Posted by: oj at October 21, 2005 12:49 PM

To paraphrase Churchill, Bork was an arrogant man with a great deal to be arrogant about.

Meiers on the other hand seems kind of light in the resume department. Ideology aside, what exactly are her technical qualifications to sit on the Supreme Court?

Posted by: Anon at October 21, 2005 12:50 PM

That's exactly the point: no Senator will feeling the grinding resentment toward Miers that every Senator felt toward Weird Beard's "I'll now explain everything to you even though you're too dumb to understand" act.

In politics a little arrogance goes a long way, and a little humility goes a long way in the opposite direction.

Posted by: Casey Abell at October 21, 2005 12:57 PM

What are her qualifications?

I thought the anti-Miers folks had abandoned that line.

That was one of their first shots at her. Now they're combing through her writings looking for run-on sentences.

And of course Fund is digging through dumpsters like he's the second coming of David Brock. Ohh Texas lottery allegations, scareee, sacareee stuff.

Hey I heard she never paid socsec taxes on her gardner/maid/nanny/dog walker. Run Fund run. Fetch boy fetch.

Posted by: Jim in Chicago at October 21, 2005 12:58 PM

Anon:

What technical qualifications are in the Constitution?

Posted by: Dan at October 21, 2005 12:58 PM

when you have the fez and ceremonial robes on, the beard doesn't look weird at all.

Posted by: anon at October 21, 2005 1:11 PM

As to whther Bork really does have much to be arrogant about, I've never heard or read anything by him that was particularly brilliant, insightful, witty, or memorable for any reason.

Mostly he just grinds through paleocon cliches about how America is going to hell in a handbasket because of the pill, or Debbie Does Dallas, or off-track betting. You can make that case with wit and some persuasiveness, but you need a light touch and an ingratiating style. Bork has never shown either.

Roberts does seem to have a sneaking wit that he deploys with devastating effectiveness. I've never seen anything like that in Bork's writings or speeches. I don't deny that Weird Beard has memorized every precedent on the Eleventh Amendment and every other amendment. I just don't see him as particularly clever - or really clever at all - once you drag him out of the Law Library dust.

Posted by: Casey Abell at October 21, 2005 1:56 PM

For all I know, Ms. Meirs may harbour the most profound antipathy to abortion and Roe. For all I know, she may secretly keep a dartboard with Justice Blackmun's picture on it.

But, my understanding of the word "zealot" precludes the notion that we have to inspect the entrails of her previous statements and contributions to augur what her position will be. "Closet zealot" is an oxymoron. Nothing I have heard indicates even the suggestion of zealousness in her position on this or any other issue.

Even a reasonable pro-choice advocate should support a change in the ABA's position, which is disgracefully partisan and shows how the ABA has been hijacked and made into a political organzization that does not fairly represent the views of many of its members.

Posted by: Kevin Bowman at October 21, 2005 2:10 PM

Kevin, speaking of the ABA, where are they on Miers?

Posted by: tefta at October 21, 2005 2:15 PM

Kevin, speaking of the ABA, where are they on Miers?

Posted by: tefta at October 21, 2005 2:15 PM

I can't argue any more if you want to ignore the long paper trail Miers has left about her anti-abortion activism (I'll substitute that more neutral term for the z-word). Just show me a similar paper trail for Roberts, Scalia or Thomas before they went onto the court. Thomas told the Judiciary Committee with a straight face that he had never even discussed Roe v Wade.

As I said, I'll take any help to defeat Miers, even from the most idiotic of useful idiots like Rod Dreher and some of the other low-watt Cornerites.

But I gotta laugh when they pretend Miers isn't a pro-life zea...oops, activist. Admitting this obvious fact would destroy the logic of their position, as even Dreher seems very, very dimly aware. After all, they're supposed to be anti-abortion.

Posted by: Casey Abell at October 21, 2005 2:22 PM

oj & sharon:

Just as the 14th Amendment was a recognition of the force and effect of the Dred Scott decision, so is a proposed Constitutional amendment abrogating Roe v. Wade an admission of that holding's legal validity.

I believe that I am beginning to see the reason for this tautologous proposition continuing to be questioned. The reason lies at the heart of the pro-death side's opposition to Miers.

Their objection is not to her legal qualification, or even to their supposition as to how she might rule in the future, but to how she FEELS about baby-murder in her heart of hearts.

It should be obvious to anyone whose mind has not been irrevocably clouded by the Jedi mind-trick/Lamont Cranston magic of this issue that there is a very great difference between the two.

One goes to legal qualifications, for all that is is periolously close to asking how a niominee might rule in a specific case. The other is witch-sniffing to disclose whether the nominee passes the questioner's religious test.

It is not a matter for proper inquiry to ask what a nominee might do about an issue is he or she were a reigning sovereign with the personal power to legislate, as personal beliefs do not determine legal qualifications.

That those people would like to explore this matter is a vulnerability which we should be exploiting. Let them be exposed for attacking beliefs.

Posted by: Lou Gots at October 21, 2005 3:39 PM

Just as the 14th Amendment was a recognition of the force and effect of the Dred Scott decision, so is a proposed Constitutional amendment abrogating Roe v. Wade an admission of that holding's legal validity.

I believe that I am beginning to see the reason for this tautologous proposition continuing to be questioned. The reason lies at the heart of the pro-death side's opposition to Miers.

Their objection is not to her legal qualification, or even to their supposition as to how she might rule in the future, but to how she FEELS about baby-murder in her heart of hearts.

It should be obvious to anyone whose mind has not been irrevocably clouded by the Jedi mind-trick/Lamont Cranston magic of this issue that there is a very great difference between the two.

One goes to legal qualifications, for all that is is periolously close to asking how a niominee might rule in a specific case. The other is witch-sniffing to disclose whether the nominee passes the questioner's religious test.

It is not a matter for proper inquiry to ask what a nominee might do about an issue is he or she were a reigning sovereign with the personal power to legislate, as personal beliefs do not determine legal qualifications.

That those people would like to explore this matter is a vulnerability which we should be exploiting. Let them be exposed for attacking beliefs.

Posted by: Lou Gots at October 21, 2005 3:40 PM

Between the carping from the left and the right, I find myself instinctively liking Miers, even though I know next to nothing about her. As for her pro-life zealotry/activism, I can live with that, especially since I'm pro-life myself. Her qualifications, as has been pointed out several times, are on paper no worse, and frankly somewhat better, than those of either of the two justices who just exited the court. And the questions about her actual competency, largely stemming from grammatical parsing, I find underwhelming. What's not to confirm?

The only concern I would have is that, contrary to neocon or theocon expectations, the common thread behind the two Bush Supreme Court nominees thus far is not ideology or even expected positions on issues of the day, even if, as OJ claims for abortion, the particular issue in question is the most important of the day. This point has been made, but not loudly enough for my liking: what Roberts and Miers have in common is a deference to the power of the executive branch. If one were to engage in the inherently inaccurate game of predicting future positions from past ones, one would have to predict that both nominees will favor allowing the executive to do pretty much whatever it wants.

In the long term, that may turn out to be a more important legacy than their influence on any specific issue, although the recognition of the humanity of the fetus would be landmark enough.

Posted by: M. Bulger at October 21, 2005 3:46 PM

Lou:

If the Court held there was no right to handguns would you oppose an Amendment?

Posted by: oj at October 21, 2005 3:47 PM

Lou: What is a non-Supreme Court Justice supposed to do? As Ms. Pelosi has pointed out, the current political consensus is that the Supreme Court is equivalent to God. We're 150+ years past the point where the other branches were willing to ignore or question the legitimacy of SC decisions. If that's true, and if the SC shows no inclination to ever undo what it has done in the past, the only possible approach is to amend the Constitution.

Posted by: b at October 21, 2005 3:49 PM

Even a reasonable pro-choice advocate should support a change in the ABA's position, which is disgracefully partisan and shows how the ABA has been hijacked and made into a political organzization that does not fairly represent the views of many of its members.
Posted by: Kevin Bowman at

But they don't, do they? She does and fought for it.

Posted by: oj at October 21, 2005 3:55 PM

Lou: I think Roe was wrongly decided but it is still the current law. Agreement and acceptance are different things. There are only two ways to get rid of Roe. One is for the Supreme Court to reverse it. The other is a constitutional amendment. Why can't one support both at the same time?

Posted by: Bob at October 21, 2005 4:28 PM
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