October 14, 2005


The Harriet Miers I Know (MATTHEW SCULLY, 10/14/05, NY Times)

Her qualities are disappointing only in comparison, of course, to all those perfectly credentialed lions of the law we keep hearing about. Her critics couldn't run to the TV studio and expertly discourse about her. Therefore, she must be a nobody.

My friend David Frum expresses the general complaint when he asks, in his blog, when did Harriet Miers "ever take a risk on behalf of conservative principle? Can you see any indication of intellectual excellence? Did she ever do anything brave, anything that took backbone?" To translate: When all the big-thinkers were persevering year after year at policy institutes and conferences at the Mayflower Hotel, or risking all for principle in stirring op-ed essays and $20,000 lectures, where was Little Miss Southern Methodist University?

If four years observing the woman is any guide, the answer is she was probably doing something useful. But whatever she was up to, it's not good enough. Harriet Miers, says Bill Kristol of The Weekly Standard, is undoubtedly a well-meaning person, but he was expecting "brilliance," and her selection signaled "weakness" and "capitulation." Mr. Kristol also suggested how the Miers nomination could be withdrawn. In the tone of Michael Corleone laying out some general instructions, he said that with Ms. Miers out of the way, "the president's aides would explain that he miscalculated out of loyalty and admiration for her personal qualities," adding, "and he could quickly nominate a serious, conservative and well-qualified candidate for the court vacancy."

When it was Mr. Kristol's charming friend John Bolton whose fate was in question, that was family business, and for the president no price was too high for loyalty. But Harriet Miers, who is only the president's friend, is now to be led away like Carlo in "The Godfather" with his "ticket to Vegas." Quickly replace her with some credentialed luminary, and in a week no one will even ask where the woman is.

Overlooked in all this caviling is the actual ability and character of the person in question. Indeed, about the best quality to recommend Harriet Miers just now is that she is not at all the sort of person who goes about readily and confidently dismissing other people as third-raters, hacks and mediocrities. She has too much class for that.

Ouch! The neocons are finding out just what contempt they're held in the hard way.

Posted by Orrin Judd at October 14, 2005 8:40 AM

Given how affronted the same people felt about the elitism charge, it should be interesting to see their reaction to Scully's piece, once they figure out the op-ed isn't behind the Times Select's $49 firewall (though the folks at NRO Corner seemed to have no problem finding and commenting on David Brooks' Thursday column).

Posted by: John at October 14, 2005 9:10 AM

I read Brooks column today in my local paper. He uses bar association president pages as his source! He calls them "vapid". He obviously has never read any other ones. Every one ever written in the US by anyone is vapid. They are intended to be vapid.

Posted by: Bob at October 14, 2005 9:59 AM

Frum and Kristol look smaller with each passing day, and even if Miers is not confirmed, they will continue to shrink. And if some slight or rebuke is revealed to be the cause of Frum's dislike for Miers, then he will fall as fast as David Brock. Even NRO won't carry him anymore.

One thing these guys don't seem to realize is that if Miers is confirmed relatively easily and fulfills Bush's vision of her, they are going to be on the outs for 2006 and 2008 (and possibly beyond). Perhaps they are staking their claim now, with this high-profile attack dog attitude, but why? Bush is in office for over 3 more years, and other than McCain, who are they trying to impress? Hillary?

Posted by: jim hamlen at October 14, 2005 10:10 AM

jim hamlen-

Fair points all. The concern is the woman's judicial philosophy or the lack thereof. Without some basis for her decisions, which is right now attempting to be discerned through a review of her local political inclinations, she could be an originalists worst nightmare. Imaginations are working on the possibility of an intellectual light-weight prone to manipulation or concerned with fashion rather than any historical basis for decision making. Time will tell. If those concerned end up being correct, only the folks who seem to want to end the discussion for no reason other than their feelings will appear foolish and short-sighted.

Posted by: Tom C., Stamford,Ct. at October 14, 2005 11:33 AM


Feelings? The discussion is hurting conservatism and helping Democrats. It's the kind of thing fanatics engage in because they care more about ideological purity than governing.

Posted by: oj at October 14, 2005 11:56 AM

A feeling of loyalty to the President. What other reason is there?

Posted by: Tom C., Stamford,Ct. at October 14, 2005 12:06 PM

The various states bar associations and the ABA itself has become captives of the liberal agenda over the last twenty years. I am now admitted to practice in Illinois, Ohio and Wisconsin and (after attending a number of state and ABA Continuing Legal Education annual seminars to maintain the requisite number of hours of CLE time) I've had some passing familiarity with the institutional politics that pervade those meetings.

Full disclosure probably means I should also note that as a plaintiff's counsel, I'm also a member of ATLA, that rather notoriously extreme group of trial lawyers who regularly comprise one of the biggest set of Democratic donors.

As the Reagan administrations used to note, personnel appointments determine the agenda. Harriet gets full points from me for her attempts to at least participate in the Texas Bar Association jockeying for position.

Bar association recommendations for or against judicial nominees and candidates (where elected) are important to the general public in making up their voting scorecards. I resigned from the ABA in about 1993 when validating Roe became an unstated prerequisite for winning a “Highly Qualified” rating for a prospective judge.

As I've noted before, I frequently practice in Cook County (i.e., Chicago), Illinois and I'm often subject to the vagaries of a judiciary that were chosen by Dick and Richie Daley as well as the electoral contributions of my fellow plaintiffs' counsel. The results of patronage bench selection aren't pretty as we all saw in the mid-1980's Greylord investigation where a number of sitting judges on the civil and criminal bench were convicted of bribery. I don’t suspect that Harriet will be subject to those temptations but I am certain that the process of patronage appointment invites contempt for the decisions of the judiciary because it leaves an indelible taint on the judge’s reputation for probity.

I've also been subject to a number of judges that were temperamentally unsuited to the dispassionate and even handed assessment of a case's merits. That's no surprise among lawyers generally since a great many attorneys personalize their adversarial representation of their clients to an extent that compromises their professional integrity. I have no confidence that Harriet will display a suitable judicial temperament simply because she’s never had that experience.

As conservative partisans, I’m certain we’re all eagerly anticipating the demise of activist judicial doctrines that look for explicit textual support in penumbras and emanations. Still, as a nation, we’re entitled to know that the highest level of our judiciary is staffed by individuals that are at minimum accomplished journeymen in their professions. Harriet simply doesn’t meet that standard. Lacking judicial and trial court experience, she lacks evidence of the most fundamental forms of judicial competency.

My point is simply this, Harriet has no history of professional accomplishment or judicial experience (evidencing a judicial temperament) sufficient to justify trusting her with anything greater than a trial court position. If this were an inquiry she had conducted for the Texas Supreme Court conducted by the Texas Bar Association, she’d say that her own candidacy was manifestly unfit. I’ve suffered too long in a court system staffed by Democratic patronage appointments to justify the GOP’s inclination to indulge in the same form of abuse.

When Bush's appointees overturn Roe, we're going to need all of the moral authority we can vest in the court to validate that decision. It's really stupid for the GOP to undermine the weight of its appointments to the bench by appointing someone like Harriet who has no real credibility even to a partisan conservative such as myself.

Posted by: Ray Clutts at October 14, 2005 12:07 PM

We've been hearing for quite a while that some people wanted a fight over Supreme Court nominees. The mistake is that everyone assumed that the people who they wanted to fight are the Dems and the Hard Left. Turns out they didn't care about who their opponent might be, they just wanted a fight., the louder and nastier, the better.

Worse, they seem to have learned all their fighting techniques from the Dems and the Left. The selective quoting from the distant past, the quoting out of context, the innuendos, the guilty until proven innocent charges, the "have you stopped beating your wife" type questions, the way they think they are immune from criticism. When the fight did come, I expected better than a cleaned up DU or Daily Kos. And it's not just me who's noticing these things.

Should have seen it coming with the flap over Specter's rise to Judiciary Chairman at the start of the year. There's a strong correlation between those people and todays's shriekers.

Posted by: Raoul Ortega at October 14, 2005 12:07 PM



Posted by: oj at October 14, 2005 12:15 PM

Finally, I too am a graduate of DePaul one of those "regional" law schools that supposedly excite elitist contempt and a renewed Catholic whose faith returned to him as an adult.

I don't believe that Harriet's legal education or born again Christianity are disqualifying factors in her resume. To the contrary, I'd be eager to see the next candidate reflect an equally strong commitment to Christian morality. I'd also like to see the candidate that replaces Harriet visibly embody some evidence of substantial professional experience for a judicial appointment.

Posted by: Ray Clutts at October 14, 2005 12:21 PM

That religion remark is insulting and abusive Orrin. Principled conservatives may differ over an appointmnent of this type.

Posted by: Ray Clutts at October 14, 2005 12:27 PM

Mr. Clutts-

No one here even pretends that concerns being raised might have some validity. Nothing could be more strange to an observer of the court's recent history. The argument seems to be, 'the president nominated her, don't dare to question or inquire..'. Weird.

Posted by: Tom C., Stamford,Ct. at October 14, 2005 12:29 PM

Frankly, I am comprehensivley conservative primarily because I have taken my faith seriously. It's a mistake to slander those who oppose Harriet's appointment by questioning the sincerity of their beliefs.

Posted by: Ray Clutts at October 14, 2005 12:38 PM

Well since we're typing here I guess it's actually libelous.

Posted by: Ray Clutts at October 14, 2005 12:39 PM


You mean you think it might more important to appoint a solid conservative than it is to win the intramural battle with the neocon, econocons etc...you've come to the wrong place.

Posted by: curt at October 14, 2005 12:48 PM


Anti-Evangelical is a principle.

Posted by: oj at October 14, 2005 12:58 PM


What objection?

Posted by: oj at October 14, 2005 1:00 PM

Tom: I, for one, take conservative reservations seriously. That doesn't mean I have to take all the objections raised seriously. I don't, for example, take objections to her having gone to SMU instead of Harvard and Yale seriously. I don't know much about SMU, but I bet that you learn a lot more law there than at Yale, which takes a perverse pride in teaching its students the bare minimum of actual law. Harvard Law, though it's possible to get a good education there, is basically a diploma mill -- take really smart people, milk them for three years and give them a JD. They'll pick it up quickly enough once they're in practice.

Other objections, like Taranto's attempt yesterday to tie her to Kelo because in 89 she testified that she didn't like the housing stock in south Dallas, aren't serious and are signs of MDS.

Other objections must be taken seriously to one extent or another. I don't think that judicial experience is necessary, but I think it could be helpful and might give us some idea of what kind of judge she would be. By itself, I don't think it is close to disqualifying.

Objections to her intelligence would be serious if they were based on anything specific. To me, she seems to be acceptably intelligent.

She lacks constitutional experience. First, I like her business litigation background. It is actually fairly important, if not penumbra important, that some of the justices have some actual experience as lawyers and with, and as, businessmen. Second, the constitution isn't -- and shouldn't be -- that complicated. It is written in fairly clear language and doesn't really take someone at the cutting edge of critical theory to parse it. (In fact, we should avoid such people like the plague.)

She favors affirmative action. I'm not thrilled about it, but so does the president.

She's not a movement conservative. That's the risk. That really does come down to whether we trust George Bush. I do. People who don't, however, even if they defeat Harriet Miers, are only going to get another nominee from George Bush.

Posted by: David Cohen at October 14, 2005 1:03 PM

So whoever opposes Harriet is anti-Evangelical? That's preposterous. I'll note in passing that my dad was a Baptist and the only other active Christians in mine and my wife's family are Evangelicals. For Catholics at least the Thirty Years War is over. Except, when occasionally over dinner, my brother-in-law and my wife go at it over the Catholic clergy.

I also think that the intramural neo/theo/econo battles are over emphasized in this dispute. Attorneys (even conservative ones) are professionally condemned to dealing with judicial work product for their entire lives.

It's not too much to ask that this critical balance altering appointment to the US Supreme Court have some evidence of substantial trial or appellate court experience in preface to being appointed to a position that sits in judgment above the massive judicial edifice of the combined federal and state court systems.

Posted by: Ray Clutts at October 14, 2005 1:15 PM


If one can support 'affirmative action' as currently defined, one can support anything. The words of the constitution are meaningless, indeed.

I agree with you that most of the objections you cite are baseless. Like yourself, I have no use for such elitist nonsense.

Unfortunatley, the court is a somewhat damaged institution and the appointment of potential light-weights should be avoided.

Posted by: Tom C., Stamford,Ct. at October 14, 2005 1:16 PM

So the objection to Miers ultimately boils down to: give us the more qualified but less conservative Alberto Gonzales.

Posted by: oj at October 14, 2005 1:17 PM


No, the neocons, mainly Jewish, and libertarians, mainly godless, mostly oppose her because she's Evangelical.

Posted by: oj at October 14, 2005 1:26 PM

The religious who oppose her want a more vocal opponent of Roe.

Posted by: oj at October 14, 2005 1:28 PM

"No one here pretends that concerns might have some validity". Not true. The attitude here from what I have seen is let's see what comes out in the hearings and base the up or down vote on that.

The problem is that the conservatives (NRO, etc) went into full ballistic mode 5 minutes after the announcement and have yet to settle down. You have bloggers screaming that she is unqualified because she donated money to Democrats 20 years ago. You have bloggers screaming that she is unqualified because on a questionaire 15 years ago she didn't attack the NAACP. You have conservative pundits who have no legal background at all sniffing that she isn't lawyerly enough. You have bloggers who have, as noted above, selectively pulled qoutes out of context to buttress their arguement.

Final note - as noted in the linked article above, conservatives have spent the past 5 years (and probably longer) saying that judicial nominees deserve a fair hearing. But now they are ready to dismiss and destroy if necessary a nominee who hasn't gotten to the hearings yet.

Posted by: AWW at October 14, 2005 1:31 PM

I've stated my prefrence before that Bush should have opted for a war of attrition battle for the current position, that would have involved the more well-known candidates with avilable track records. But I have no illusion that accomplishing this would have taken six or more months, since I also have no illusions that the same senators who forced Bush to recess appoint John Bolton and who concocted the "Gang of 14" to avoid the original filibuster battle would not have the stomach to fight for the first one or two nominees Bush put up, in the face of Democratic special interest groups and the big media outlets.

If Bush had nominated Luttig first, Luttig would have been dead on arrival. If he had nominated Brown first, Brown's dead on arrival. The same thing with Jones, Owens, etc., and based on the Nixon precedent with Haynesworth and Carswell that led to Rhenquist's nomination, the second person selected by Bush probably would have had at best a 50-50 chance of getting through. But after a while, at least a few of the GOP 7 in the GO-14, and a few outside like Spector, finally would have to give in, especially as the 2006 elections approached.

In Frum's argument this week with Hugh Hewitt, he was certain that Harriet Miers would be a terrible judge but at the same time, wouldn't even entertain the possiblity that Bush didn't have the Senate votes for a Luttig, refusing to answer Hewitt's question four times. Miers does need to be questioned hard at the Judiciary hearing, by both sides of the aisle, but simply assuming if Harriet's gone whoever Bush replaces her with (as long as they're on the approved NRO-Weekly Standard list) will sail through is delusional.

Posted by: John at October 14, 2005 1:34 PM


As is typical, you refuse to deal with the issue. I have no objection to Harriet Miers. I don't know anything definitive about her regarding judicial temperament or constitutional philosophy. If she supports 'affirmative action' as somehow mandated and inclusive of all institutions that have any connection to the state at any level or if she believes that it is adressed by the constitution then I do object and so should you.

Posted by: Tom C., Stamford,Ct. at October 14, 2005 1:47 PM


Why shouldn't race be taken into consideration?

Posted by: oj at October 14, 2005 1:52 PM

After Haynesworth and Carswell were rejected, Nixon nominated Blackmun, the author of the Roe v Wade opinion, not Rehnquist.

Because it violates the 14th Amendment. No.

Posted by: h-man at October 14, 2005 2:08 PM



Posted by: oj at October 14, 2005 2:16 PM


You can take race into account. I can take race into account. If I wish to hire a certain race that's my perogative. If you believe you are performing a social good by going out and trying to find the best candidate for a job and wish to use raec as a factor then bully for you and best of luck. Don't pretend that the constitution mandates that I must do the same if I choose not to.

Posted by: Tom C., Stamford,Ct. at October 14, 2005 2:26 PM


It doesn't. Government may though.

Posted by: oj at October 14, 2005 2:31 PM

I assumed we were refering to "state" action therefore the government is required to give "equal" protection to all citizens. However if you are recommending that the government treat people as different classes of citizens based on ancestry, then I'm willing to listen, since I certainly can see the advangtages of doing it the old way.

Posted by: h-man at October 14, 2005 2:36 PM


The plain meaning of the document forbids such behavior by the central state. The idea of 'minority rights' and the danger majoritarian tyranny have been turned on their heads by modern constitutional theorists. Even you have been swayed by the sloppy reasoning and historical illitercy.

Posted by: Tom C., Stamford,Ct. at October 14, 2005 2:44 PM


Where? The equal protection clause of an Amendment designed to advance the interests of freed slaves can't be read as forbidding, in laws duly passed by Congress, past racial discrimination to be considered in awarding government contracts without doing violence to the English language and the history of the Amendment.

Posted by: oj at October 14, 2005 4:26 PM

No, the neocons, mainly Jewish, and libertarians, mainly godless, mostly oppose her because she's Evangelical.

Why wouldn't they oppose Roberts because he's Catholic? They're opposed to her because the only qualification from the presiden't view seems to be that she is an Evangelical.

And what of evangelicals who don't support her? Are they anti-evangelical?

From a Pew Research poll:

Among religious groups, white evangelical Christians are most supportive of Miers, but about as many evangelicals offer no opinion as say she should be confirmed (43% in favor/41% no opinion). Roughly half of evangelicals (49%) say the fact that Miers is an evangelical Christian makes them feel more favorably to her; that compares with just 20% of the general public. But 44% of white evangelicals say the fact that Miers is an evangelical does not affect their opinion one way or the other.

Posted by: Robert Duquette at October 15, 2005 12:09 PM

Evangelical opposition comes from folks who want an anti-Roe activist.

Posted by: oj at October 15, 2005 1:47 PM