John Fund Changes His Mind On Miers-Now Against

Annie

Diamond Member
Nov 22, 2003
50,848
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None of this is boding well for GW. If she is as loyal as some are saying, why doesn't she just withdraw her name?

http://www.opinionjournal.com/diary/?id=110007384

JOHN FUND ON THE TRAIL
Miers Remorse
Conservatives are right to be skeptical.

Monday, October 10, 2005 12:01 a.m.

I have changed my mind about Harriet Miers. Last Thursday, I wrote in OpinionJournal's Political Diary that "while skepticism of Ms. Miers is justified, the time is fast approaching when such expressions should be muted until the Senate hearings begin. At that point, Ms. Miers will finally be able to speak for herself."

But that was before I interviewed more than a dozen of her friends and colleagues along with political players in Texas. I came away convinced that questions about Ms. Miers should be raised now--and loudly--because she has spent her entire life avoiding giving a clear picture of herself. "She is unrevealing to the point that it's an obsession," says one of her close colleagues at her law firm.

White House aides who have worked with her for five years report she zealously advocated the president's views, but never gave any hint of her own. Indeed, when the Dallas Morning News once asked Ms. Miers to finish the sentence, "Behind my back, people say . . .," she responded, ". . . they can't figure me out."

Conservatives shouldn't care about her personal views on issues if they can convince themselves that she agrees with Chief Justice John Roberts's view of a judge's role: that cases should be decided the way an umpire calls balls and strikes, without rooting for either team. But the evidence of Ms. Miers's views on jurisprudence resemble a beach on which someone has walked without leaving any footprints: no court opinions, no law review articles, and no internal memos that President Bush is going to share with the Senate.

It is traditional for nominees to remain silent until their confirmation hearings. But previous nominees, while unable to speak for themselves, have been able to deploy an array of people to speak persuasively on their behalf. In this case, the White House spin team has been pathetic, dismissing much of the criticism of Ms. Miers as "elitism" or even echoing Democratic senators who view it as "sexist." But it was Richard Land , president of the Southern Baptist Convention, who went so far as to paint Ms. Miers as virtually a tool of the man who has been her client for the past decade. "In Texas, we have two important values, courage and loyalty," he told a conference call of conservative leaders last Thursday. "If Harriet Miers didn't rule the way George W. Bush thought she would, he would see that as an act of betrayal and so would she." That is an argument in her favor. It sounds more like a blood oath than a dignified nomination process aimed at finding the most qualified individual possible .

Senate Judiciary Committee chairman Arlen Specter says he has no doubt Ms. Miers is taking "a crash course" in constitutional law. She will be primed with talking points and her compelling success story when the hearings begin. The presumption that she should be confirmed will weigh heavily on Republican senators who will be constantly reminded that the president has made dozens of good judicial picks for lower courts.

But that ignores the fact that every Republican president over the past half century has stumbled when it comes to naming nominees to the high court. Consider the record:

After leaving office, Dwight Eisenhower was asked by a reporter if he had made any mistakes as president. "Two," Ike replied. "They are both on the Supreme Court." He referred to Earl Warren and William Brennan, both of whom became liberal icons.

Richard Nixon personally assured conservatives that Harry Blackmun would vote the same way as his childhood friend, Warren Burger. Within four years, Justice Blackmun had spun Roe v. Wade out of whole constitutional cloth. Chief Justice Burger concurred in Roe, and made clear he didn't even understand what the court was deciding: "Plainly," he wrote, "the Court today rejects any claim that the Constitution requires abortions on demand."

Gerald Ford personally told members of his staff that John Paul Stevens was "a good Republican, and would vote like one." Justice Stevens has since become the leader of the court's liberal wing.

An upcoming biography of Sandra Day O'Connor by Supreme Court reporter Joan Biskupic includes correspondence from Ronald Reagan to conservative senators concerned about her scant paper trail. The message was, in effect: Trust me. She's a traditional conservative. From Roe v. Wade to racial preferences, she has proved not to be. Similarly, Paul Weyrich of the Free Congress Foundation recalls the hard sell the Reagan White House made on behalf of Anthony Kennedy in 1987, after the Senate rejected Robert Bork. "They even put his priest on the phone with us to assure us he was solid on everything," Mr. Weyrich recalls. From term limits to abortion to the juvenile death penalty to the overturning of a state referendum on gay rights, Justice Kennedy has often disappointed conservatives.

Most famously, White House chief of staff John Sununu told Pat McGuigan, an aide to Mr. Weyrich, that the appointment of David Souter in 1990 would please conservatives. "This is a home run, and the ball is still ascending. In fact, it's just about to leave earth orbit," he told Mr. McGuigan. At the press conference announcing the appointment, the elder President Bush asserted five times that Justice Souter was "committed to interpreting, not making the law." The rest is history.

Harriet Miers is unquestionably a fine lawyer and a woman of great character. But her record on constitutional issues is nil, and it is therefore understandable that conservatives, having been burned at least seven times in the past 50 years, would be hesitant about supporting her nomination.

The scantiness of her philosophical record has led reporters to focus on the two years of her career where she had to take stands: her one term as a member of the Dallas City Council during 1990 and 1991. There she established a record as an advocate of good government, increased funding for the arts, and building a light-rail system. Her one moment of high drama came when she quieted an angry crowd alleging police brutality. She apologized to the protesters on behalf of the city and called the behavior of the officers "unprovoked and inexcusable."

Reactions to her from her former colleagues were mixed. Craig McDaniel, a liberal council member, praises her ability to get along with diverse groups of people and tells the Dallas Voice, a gay newspaper, "This is as good as we would ever get out of a Republican administration." Jerry Bartos, a conservative council colleague, rated her effectiveness at "zero" and called her "the consummate loner." But Sharon Boyd, a longtime friend and GOP activist, says many conservatives resented her solely because she had remained a Democrat until 1988. Ms. Boyd calls Ms. Miers's record on the council "very conservative." Yet when pressed for examples, she could only offer Ms. Miers's opposition to civil unions for gays and support for a constitutional amendment against flag burning.

On other issues, Ms. Miers's record is one of initially supporting a conservative position and then abandoning it. She started out backing a plan to redistrict the City Council that had received the endorsement of two-thirds of Dallas voters in a 1989 referendum. When it appeared that plan would lose a court case on account of its alleged effect on minority representation, she backed a plan for single-member districts supported by liberals. "I formally debated her on the issue," recalls Tom Pauken, a former chairman of the Texas Republican Party. "She was a liberal then. I don't know about today, but in the last week all the liberals who've been on the council have been singing her praises."

Similarly, Ms. Miers was originally part of a council majority that urged Congress to repeal the Wright Amendment, a law that restricts flights from Dallas Love Field. Southwest Airlines and free-market advocates had long attacked the restriction as favoritism toward American Airlines, which has a hub at Dallas-Fort Worth International. Ms. Miers reversed her position after 10 months and sponsored a resolution in favor of the Wright Amendment. She called her move "a triumph of reason over rhetoric" and cited two studies that claimed flying more planes out of Love would lead to traffic congestion. Most aviation experts dispute that conclusion.

Finally, a 1990 budget crunch forced the Dallas City Council to consider a property tax increase--its third in four years. Ms. Miers initially resisted the tax increase, then came around to the view that a property tax hike would be the fairest. The key vote came when the council voted 6-5 to add $900,000 to the budget proposed by the city manager as part of a 7% increase in the tax rate. Ms. Miers cast the deciding vote. Mr. Bartos, who had proposed an alternate plan for 5% across-the-board spending cuts on all departments except the police, was bitter that almost all of the proposed $900,000 budget increase was slated for library and arts funding rather than public safety.

Some of the complaints about Harriet Miers are more flashy than substantive. While she contributed to the campaigns of Sens. Al Gore and Lloyd Bentsen in 1988, they were universally viewed as moderate Democrats at the time. Her contribution to the Democratic National Committee that same year could easily have been at the behest of a senior partner, a frequent occurrence at law firms.

What is clear is that her association with George W. Bush has affected her worldview. Accompanied by her longtime friend Nathan Hecht, she first met Mr. Bush at a dinner in Austin in January 1989. Mr. Bush's father was about to become president, Justice Hecht was just beginning his first term on the Texas Supreme Court, and Ms. Miers had just been elected to the City Council. Justice Hecht recalls that they both spent an hour socializing with George and Laura Bush at the dinner. They kept in touch after that, and Ms. Miers continued her meteoric rise to become the first female president of the Texas Bar Association. In 1994 Mr. Bush, running for governor, appointed her his campaign counsel. Jim Francis, the campaign chairman, recalls telling Mr. Bush, "Look, we need to have a campaign general counsel. We're running against a popular female governor. We need a woman." As has happened often in her life, Ms. Miers' has joined her talent with luck at just the right moment for advancement.

Over and over, people who know Harriet Miers praise her intelligence, her ability to work with people, and her good heart. "She never gossips, she never has a harsh word for anyone," says Merrie Spaeth, a friend of 20 years who was director of media relations in the Reagan White House. Dan Branch, a Texas state representative, says, "She'd make a great poker partner. S he forces you to reveal your hand while she gives up nothing."

After giving her effusive praise, her friends are a little nonplussed when asked if she is a conservative. "She is a person of great integrity," says Ms. Spaeth. "I have never had a political conversation with her." While many of the Bush judicial nominees she has helped shepherd to confirmation are affiliated with the Federalist Society, Ms. Miers herself has been ambivalent about the influential conservative legal group. In 1990, she almost anticipated how much of a lightning rod the group would become to the left. She testified in a court case that she would not join the society because "it's better not to be involved in organizations that seem to color your view one way or the other for people who are examining you."

The White House professes to be sanguine about Ms. Miers's reliability, while at the same time expressing irritation with conservatives who won't fall into line. Time magazine quotes a Bush adviser as saying that the "driving force" behind Ms. Miers's appointment was White House chief of staff Andy Card, not Karl Rove. "This is something that Andy and the president cooked up," the adviser told Time. "Andy knew it would appeal to the president because he loves appointing his own people and being supersecret and stealthy about it." Despite his lack of hands-on involvement, Mr. Rove has stoutly defended the Miers pick to allies as a brilliant "Trojan horse"--a conservative nominee who will avoid any possible Democratic filibuster.

David Frum, a former Bush speechwriter, who describes Ms. Miers's role in the White House as largely that of a "bureaucrat who couldn't see the forest for the trees," nonetheless believes that Team Bush is right--but only for a while. He believes she will be remain a conservative justice at least until Mr. Bush leaves office in early 2009. "But then the Bushies will have gone home, and she will develop new friends, and then the inevitable tug to the left may prove irresistible."

A friend of both Mr. Bush and Ms. Miers disagrees. He notes that for eight years Justice O'Connor remained largely true to Ronald Reagan's judicial views, even though she had no personal ties to him. "I think Harriet has morphed her views into those of the president," he told me. "I think she will be pretty much the same justice she starts out being for 10 or 15 years. And she is now 60."

Indeed, in many ways, Ms. Miers resembles the early Sandra Day O'Connor, another elected official who backed some liberal positions during her time in the Arizona Legislature. As Justice O'Connor began drifting to the center she became the crucial swing vote on a host of cases. Legal scholars began referring to the "O'Connor Court." Now, with Ms. Miers slated to take the O'Connor seat it may become the "Miers Court."

"This is the most closely divided court in history," says Jay Sekulow , a conservative legal activist who backs Ms. Miers. "Everybody knows what is at stake here." With such high stakes, it should disappoint everyone that the Senate will now have to debate the confirmation of a nominee who, when it comes to Constitutional law, resembles a secret agent more than a scholar.
 
NATO AIR said:
wow, this is utterly devastating. what in the world was bush and his people thinking?
Too much "trust me." I don't think he ever realized how many have been very unhappy with his choices on domestic issues, while enthusiastically backing strong military decisions, when he took them.
 
Kathianne said:
Too much "trust me." I don't think he ever realized how many have been very unhappy with his choices on domestic issues, while enthusiastically backing strong military decisions, when he took them.

that is a very piercing assessment of his presidency. he has consistently failed to deliver much of his domestic agenda. now that the media's brainwashed the american people into believing iraq is a disaster (though decisions made by his people are certainly to blame as well), they now have little to be satisfied with of his presidency this 2nd term.
 
Personally, I would prefer that people wait until after the committee hearings to make a decision on the fitness of Miers to serve on the Court. Those who are writing the articles against her seem to know very little about her.

God knows, Miers could not be any worse than Ruth Bader Ginsburg, who the Republicans approved overwhelmingly to serve on the Court although they knew, based on her past experience and record, that she would certainly work to steer this country farther to the left. I don't go along with those Republican writers in the Blue States jumping all over Miers without any facts to back up what they say. After all, Rehnquist was no stellar Eastern intellectual when he was chosen to serve on the Court, and he did very well as both an associate justice and as Chief Justice.
 
Adam's Apple said:
Personally, I would prefer that people wait until after the committee hearings to make a decision on the fitness of Miers to serve on the Court. Those who are writing the articles against her seem to know very little about her.

God knows, Miers could not be any worse than Ruth Bader Ginsburg, who the Republicans approved overwhelmingly to serve on the Court although they knew, based on her past experience and record, that she would certainly work to steer this country farther to the left. I don't go along with those Republican writers in the Blue States jumping all over Miers without any facts to back up what they say. After all, Rehnquist was no stellar Eastern intellectual when he was chosen to serve on the Court, and he did very well as both an associate justice and as Chief Justice.

That is the essential problem however. If we have to wait until the committee hearings to find out what Miers is really like, then we really don't really know her and frankly, we are not going to get to know her that much better anyway despite the hearings. She has no real proven track record.

That is why conservatives are so upset...as there are plenty of actual experienced judges who have good conservative records already and it is a slap in the face to not have one nominated.

I think it is time for conservatives to take a stand, reject Miers, and force Bush to pick a truly qualified conservative judicial candidate.
 
ScreamingEagle said:
She has no real proven track record. That is why conservatives are so upset...as there are plenty of actual experienced judges who have good conservative records already and it is a slap in the face to not have one nominated.

From what was reported prior to President Bush’s selection of Harriet Miers to be his nominee for the Court, he met with many people--both Republicans and Democrats-- to get their input on the replacement for Sandra Day O’Connor. This was for the express purpose of avoiding one of those infamous “wars” that occur every time someone is nominated for a judicial position in Washington. But from what has happened since he announced Miers as his choice, it looks like his error was in not meeting with the influential East Coast conservative journalists to get their input in the process. But, lest we forget, in the end it was Bush’s choice, subject to advice and consent of the Senate, not the choice of the journalists.

Last night on Hannity & Colmes, J.C. Watts said that many of the top ten people being considered for the Court declined to be considered further because they did not want to drag themselves and their families through the current selection process. So we don’t know all the factors that were involved in Bush’s selection of Miers. All we have is strictly speculation by journalists as to why Bush chose Miers.

Miers has been with Bush for many years and has played a very important role in vetting his judicial nominees—all conservatives. She serves as legal counsel for the President, one of the top legal jobs in the country. In such a job, she comes into contact with every kind of legal situation imaginable, so it seems to me that she would have to be well versed in all provisions of the law and the Constitution or she would not be able to hold that job. To say that she has no experience in Constitutional law, as has been written, is ludicrous. I am certain she knows far more about the law and the Constitution than her current detractors.

Right now we know very little about Harriet Miers. Without any further information than is currently available to us, she is just as qualified to serve on the Court as six of the current nine justices. Wouldn’t it be far better to wait until the Judicial Committee hearings and hear what Miers has to say on her own behalf before making judgments about her? She has a right to be given fair and careful consideration.
 
I heard Bush is going to appoint his former school crossing guard to head the Dept. of Transportation. And his dog walker for Secretary of Defense. After that he's going to appoint a box of Pop Tarts to the position of head chef at the White House.
 
Nuc said:
I heard Bush is going to appoint his former school crossing guard to head the Dept. of Transportation. And his dog walker for Secretary of Defense. After that he's going to appoint a box of Pop Tarts to the position of head chef at the White House.

They may do quite well when compared with others who have held those positions.
 
Nuc said:
I heard Bush is going to appoint his former school crossing guard to head the Dept. of Transportation. And his dog walker for Secretary of Defense. After that he's going to appoint a box of Pop Tarts to the position of head chef at the White House.

Bush has a record of surrounding himself with highly qualified women who he has no qualms about appointing to positions of real power. I have been satisfied with the women who have served and now serve in his administration. Therefore, there is no reason for me to doubt that he knows what he is doing when he nominates Miers for the high court.
 
Adam's Apple said:
From what was reported prior to President Bush’s selection of Harriet Miers to be his nominee for the Court, he met with many people--both Republicans and Democrats-- to get their input on the replacement for Sandra Day O’Connor. This was for the express purpose of avoiding one of those infamous “wars” that occur every time someone is nominated for a judicial position in Washington. But from what has happened since he announced Miers as his choice, it looks like his error was in not meeting with the influential East Coast conservative journalists to get their input in the process. But, lest we forget, in the end it was Bush’s choice, subject to advice and consent of the Senate, not the choice of the journalists.

Last night on Hannity & Colmes, J.C. Watts said that many of the top ten people being considered for the Court declined to be considered further because they did not want to drag themselves and their families through the current selection process. So we don’t know all the factors that were involved in Bush’s selection of Miers. All we have is strictly speculation by journalists as to why Bush chose Miers.

Miers has been with Bush for many years and has played a very important role in vetting his judicial nominees—all conservatives. She serves as legal counsel for the President, one of the top legal jobs in the country. In such a job, she comes into contact with every kind of legal situation imaginable, so it seems to me that she would have to be well versed in all provisions of the law and the Constitution or she would not be able to hold that job. To say that she has no experience in Constitutional law, as has been written, is ludicrous. I am certain she knows far more about the law and the Constitution than her current detractors.

Right now we know very little about Harriet Miers. Without any further information than is currently available to us, she is just as qualified to serve on the Court as six of the current nine justices. Wouldn’t it be far better to wait until the Judicial Committee hearings and hear what Miers has to say on her own behalf before making judgments about her? She has a right to be given fair and careful consideration.

We already know quite enough about Miers. Have you read Coulter's recent articles? No one can say it quite like her:

I eagerly await the announcement of President Bush's real nominee to the Supreme Court. If the president meant Harriet Miers seriously, I have to assume Bush wants to go back to Crawford and let Dick Cheney run the country.

Unfortunately for Bush, he could nominate his Scottish terrier Barney, and some conservatives would rush to defend him, claiming to be in possession of secret information convincing them that the pooch is a true conservative and listing Barney's many virtues — loyalty, courage, never jumps on the furniture ...

Harriet Miers went to Southern Methodist University Law School, which is not ranked at all by the serious law school reports and ranked No. 52 by US News and World Report. Her greatest legal accomplishment is being the first woman commissioner of the Texas Lottery.

I know conservatives have been trained to hate people who went to elite universities, and generally that's a good rule of thumb. But not when it comes to the Supreme Court.

First, Bush has no right to say "Trust me."

continued:
http://www.anncoulter.org/cgi-local/article.cgi?article=79

And the follow-up:
http://www.anncoulter.org/cgi-local/article.cgi?article=80
 
I think Goerge has asked his base to just trust him one too many times. There are many reasons to either support or criticize is choice for Supreme Court Justice. When his base support is waning and dissappointed in many of his social and financial policies is NOT the time to pretend he has political and popularity capital that he does not have. His refusal to be willing to be held more
accountable in what may be one of the most important things he will do is a bit arrogant and the rationales that he is offering for his choice are just plain lame. Why should the fact that she is a woman and a Christian impress anyone?
 
Here's a response to the Coulter articles from a conservative columnist at The Conservative Voice. It's a long article (4 pages), so you might want to print it out. As Coulter wrote her articles laced with sarcasm, Gaynor has used the same tack in his article.

Miers to the Supreme Court, Coulter to Japan
By Michael J. Gaynor, The Conservative Voice
October 13, 2005

Gaynor has also written the following article directed to conservatives as food for thought. Bush has made his share of mistakes, like all presidents do, but the judicial appointments he has made do not fall into the category of mistakes. He has been outstanding in this area, in my opinion.

Conservatives: To Snatch Defeat from the Jaws of Victory, Hammer Harriet Harder
By Michael J. Gaynor, www.MichNews.com
October 11, 2005

http://www.michnews.com/artman/publish/article_9847.shtml
 
Adam's Apple said:
Here's a response to the Coulter articles from a conservative columnist at The Conservative Voice. It's a long article (4 pages), so you might want to print it out. As Coulter wrote her articles laced with sarcasm, Gaynor has used the same tack in his article.

Miers to the Supreme Court, Coulter to Japan
By Michael J. Gaynor, The Conservative Voice
October 13, 2005

Gaynor has also written the following article directed to conservatives as food for thought. Bush has made his share of mistakes, like all presidents do, but the judicial appointments he has made do not fall into the category of mistakes. He has been outstanding in this area, in my opinion.

Conservatives: To Snatch Defeat from the Jaws of Victory, Hammer Harriet Harder
By Michael J. Gaynor, www.MichNews.com
October 11, 2005

http://www.michnews.com/artman/publish/article_9847.shtml

Adam's, you and I most often agree, but in this case, no. GW left me cold within 3 months of taking office in 2001. By August I was looking for whom to support in 2004. Then 9/11. Good for 2 years, but then it started again. I will not take his 'word' on Harriet Meirs. I am not a dyed in the wool GOP person, though more conservative than many that are. On the domestic, he has not earned my trust, quite the opposit.
 
Hopefully, we will learn more about Miers' stand on issues after the Judicial Committee hearings. Just from what I am reading and hearing, it appears she is going to get pommeled by both Republicans and Democrats on the committee--probably more so by the Republicans than the Democrats--so she had better be well prepared. I feel sure the Republicans will be going into the hearings with the specter of Souter and Kennedy on their minds and determined that they will not make that same mistake again.
 
http://www.nationalreview.com/editorial/editors200510141544.asp

October 14, 2005, 3:44 p.m.
Start Over

When President Bush nominated Harriet Miers to the Supreme Court, we called it a missed opportunity. The ensuing debate has confirmed that judgment. For all its fury, a consensus was reached early on that point. Leaving aside the president and his employees, even Miers’s fiercest defenders allow that she was not their top pick — or even their tenth.

There is very little evidence that Harriet Miers is a judicial conservative, and there are some warnings that she is not. Miers is said rarely to have raised her voice in the Bush administration’s internal policy debates, but it is known that she was a strong defender of racial preferences when they were being challenged before the Supreme Court. In the end, her influence helped sway the Bush administration to file a brief defending those preferences, which, in turn, helped sway the Court to uphold them.




Miers’s own career as a lawyer shows a strong tendency to identify with local elites and establishments, to go along with prevailing ideas, and to avoid doing anything that might cause unpleasantness or rock the boat. These are useful personality traits, but they are not the traits of a Scalia or a Thomas — the kind of justice this president led conservatives to expect.

Miers’s record on the Dallas City Council has been described as that of someone who was neither liberal nor conservative. She rose at the American Bar Association, an organization deeply institutionally hostile to conservatives. At the White House she showed herself intensely protective of the ABA, opposing efforts to end its privileged role vetting judges — a privilege that the ABA had used to promote liberal judges and downgrade conservatives ones. She donated money to the Al Gore campaign when her colleagues asked her to, and helped establish an endowed lecture series at Southern Methodist University that brought feminist icons like Gloria Steinem and Susan Faludi to campus. She made a point of refusing any affiliation with the Federalist Society.

Miers’s supporters argue that her conservatism is reflected in the judicial picking she allegedly did for President Bush. Most of this work was, however, done before she became counsel. They say that she is pro-life. (Her campaign to get the ABA to stay neutral on abortion lends some credence to that avowal, and qualifies, but does not erase, the impression that she flees controversy.) They say that she has a strong evangelical faith. But neither being pro-life or an evangelical is a reliable guide to what kind of jurisprudence she would produce, even on Roe, let alone on other issues. Indeed, the fact that her supporters have had to resort to such weak defenses — and, worse, to pleasant generalities about her kindness to her colleagues and name-calling about her critics’ alleged sexism — is perhaps the most distressing evidence that no stronger arguments are available on behalf of this nomination.

We are left with only stray clues to Miers’s value system. Unlike John Roberts, or for that matter Ruth Bader Ginsburg, Stephen Breyer, or Clarence Thomas, Miers comes to the highest Court in the land as practically unknown quality, a gamble for incredibly high stakes.

Then there is the related issue of qualification. She has had real accomplishments. But it speaks volumes that the president cited her service on a lottery commission as a reason to put her on the Supreme Court. Some of the president’s supporters have argued that excellence does not matter in a Supreme Court nominee — that really any one of 50,000 lawyers could adequately do the job. This is unconvincing on its face. But if a refutation is needed, consider the career of Harry Blackmun. Here was a judge described even by his admiring biographer Linda Greenhouse as intellectually insecure. Like Miers, he too was devoted to local establishments: the Mayo clinic in his case rather than the ABA. Sure he was a loyal Republican; but almost as soon as he arrived on the Court, he was transformed.

“Even if she does not become
a Blackmun, her record strongly
suggests she will be an O’Connor —
a split-the-difference judge.”

So, we have reason to fear, will be the case with Miers. And even if she does not become a Blackmun, her record strongly suggests she will be an O’Connor — a split-the-difference judge. As one of her former colleagues has said of her, Miers’s office was the “place where the action stopped and the hand-wringing began.” If she follows that course, we will be left with a Court that retains immense and inappropriate lawmaking power but refuses to make clear laws. The rule of law is based on the making of arguments and the giving of reasons, not on sentiment or group loyalty — which is the basis on which Miers’s defenders want us to support her.

“The president trusts her,” is not a good enough argument. The president has trusted a lot of people, some of whom have worked out fine, others less so. To which category will Harriet Miers belong? It is possible that the confirmation hearings will shed light on that question. But we doubt it, given the ease with which nominees can sidestep searching questions.

What, then, should be done? Some conservatives have called on the president to withdraw her nomination, and a few have urged senators to vote against her. If the president withdrew the nomination, we believe that he would seek a replacement who could unite conservatives — as he no doubt expected Miers to unite them. But that nominee would be tarnished, perhaps fatally, by the suspicion that the president was forced to pander to the Right. The president, moreover, surely does not want to risk looking less than strong and steadfast. The prudent course is for Miers to withdraw her own nomination in the interests of the president she loyally serves. The president could then start over. Both he and his party would probably benefit from having the clear fight over the direction of the courts that only a new nominee would allow. But for that to happen, some conservative senators are going to have to send a diplomatic message to the White House.

And conservatives and the White House will have to restore their working relationship. Some hard and ill-considered words have been said on both sides, but it is time for all involved to follow their interests, instead of their resentments.
 
Now it's Jonah Goldberg:


Links at site. Yesterday it was the WSJ, how many think she will get through the confirmation hearings?

http://corner.nationalreview.com/05_10_16_corner-archive.asp#080420

THIS IS WHERE I GET OFF [Jonah Goldberg ]

My official position on Miers has been to criticize the selection, but give her the benefit of the doubt until the hearings. In other words, bad pick but she's the nominee so let's give her a shot.

No more.

After reading this story I'm officially against Miers. I'm with the Editors , Will, Frum, and Krauthammer.

It's not just that Miers was in favor of racial quotas -- we'd pretty much known that for a while. It's the fundamental confirmation that she's a go-along-with-the-crowd establishmentarian. The White House says that her enthusiastic support for goals, timetables and quotas at the Bar Association says nothing about her views on government race policies. Yeah, right. She simultaneously thought what she was doing was great and important while also believing it would be unconstitutional if the government did the same thing.

The White House says she's an unchanging rock of principle. Uh huh. So have her opinions held constant since the early 1990s? Or have they shifted with the wind? If she's a rock, I don't want her. If she's a weather vane, I don't want her.

I just don't want her.

Start over.

Posted at 10:06 AM
 
http://www.washingtonpost.com/wp-dy...1/AR2005102101825.html?nav=rss_nation/special

Defending The Indefensible

By George F. Will

Sunday, October 23, 2005; Page B07

Such is the perfect perversity of the nomination of Harriet Miers that it discredits, and even degrades, all who toil at justifying it. Many of their justifications cannot be dignified as arguments. Of those that can be, some reveal a deficit of constitutional understanding commensurate with that which it is, unfortunately, reasonable to impute to Miers. Other arguments betray a gross misunderstanding of conservatism on the part of persons masquerading as its defenders.

Miers's advocates, sensing the poverty of other possibilities, began by cynically calling her critics sexist snobs who disdain women with less than Ivy League degrees. Her advocates certainly know that her critics revere Margaret Thatcher almost as much as they revere the memory of the president who was educated at Eureka College.

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Next, Miers's advocates managed, remarkably, to organize injurious testimonials. Sensible people cringed when one of the former Texas Supreme Court justices summoned to the White House offered this reason for putting her on the nation's highest tribunal: "I can vouch for her ability to analyze and to strategize." Another said: "When we were on the lottery commission together, a lot of the problems that we had there were legal in nature. And she was just very, very insistent that we always get all the facts together."

Miers's advocates tried the incense defense: Miers is pious. But that is irrelevant to her aptitude for constitutional reasoning. The crude people who crudely invoked it probably were sending a crude signal to conservatives who, the invokers evidently believe, are so crudely obsessed with abortion that they have an anti-constitutional willingness to overturn Roe v. Wade with an unreasoned act of judicial willfulness as raw as the 1973 decision itself.

In their unseemly eagerness to assure Miers's conservative detractors that she will reach the "right" results, her advocates betray complete incomprehension of this: Thoughtful conservatives' highest aim is not to achieve this or that particular outcome concerning this or that controversy. Rather, their aim for the Supreme Court is to replace semi-legislative reasoning with genuine constitutional reasoning about the Constitution's meaning as derived from close consideration of its text and structure. Such conservatives understand that how you get to a result is as important as the result. Indeed, in an important sense, the path that the Supreme Court takes to the result often is the result.

As Miers's confirmation hearings draw near, her advocates will make an argument that is always false but that they, especially, must make, considering the unusual nature of their nominee. The argument is that it is somehow inappropriate for senators to ask a nominee -- a nominee for a lifetime position making unappealable decisions of enormous social impact -- searching questions about specific Supreme Court decisions and the principles of constitutional law that these decisions have propelled into America's present and future.

To that argument, the obvious and sufficient refutation is: Why, then, have hearings? What, then, remains of the Senate's constitutional role in consenting to nominees?

It is not merely permissible, it is imperative that senators give Miers ample opportunity to refute skeptics by demonstrating her analytic powers and jurisprudential inclinations by discussing recent cases concerning, for example, the scope of federal power under the commerce clause, the compatibility of the First Amendment with campaign regulations and privacy -- including Roe v. Wade .

Can Miers's confirmation be blocked? It is easy to get a senatorial majority to take a stand in defense of this or that concrete interest, but it is surpassingly difficult to get a majority anywhere to rise in defense of mere excellence.

Still, Miers must begin with 22 Democratic votes against her. Surely no Democrat can retain a shred of self-respect if, having voted against John Roberts, he or she then declares Miers fit for the court. All Democrats who so declare will forfeit a right and an issue -- their right to criticize the administration's cronyism.

And Democrats, with their zest for gender politics, need this reminder: To give a woman a seat on a crowded bus because she is a woman is gallantry. To give a woman a seat on the Supreme Court because she is a woman is a dereliction of senatorial duty. It also is an affront to mature feminism, which may bridle at gallantry but should recoil from condescension.

As for Republicans, any who vote for Miers will thereafter be ineligible to argue that it is important to elect Republicans because they are conscientious conservers of the judicial branch's invaluable dignity. Finally, any Republican senator who supinely acquiesces in President Bush's reckless abuse of presidential discretion -- or who does not recognize the Miers nomination as such -- can never be considered presidential material.
 

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