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Brownback today, Specter tomorrow

I"ve never been a very good political prognosticator  -- I think I"ve confidently predicted six of the last two Democratic presidential victories -- but sometimes I get it right.  Four hours after the Miers nomination was announced, I wrote:

...there have to be some real questions about what Republicans will do. Remember, the 2008 presidential campaign has already begun. If you're a potential candidate like Senator Brownback, and you see this anger in the base, it is a golden opportunity to make some allies. And if Brownback turns on Miers, what are George Allen and Rick Santorum supposed to do? You could see the beginnings of significant bipartisan opposition to Miers, in which case the nomination would have to be withdrawn, even if it's not clear that the opposition would reach the 40-vote level.

Pretty good prediction, including the recognition that Brownback was the key.

As to what happens now, I don't think it will be quite as easy as naming Ben Bernanke to replace Greenspan. I've always thought that one explanation for the Miers nomination was that the White House process simply wasn't functioning. They had a decent number of plausible nominees -- female, Hispanic or both, reliable movement conservatives currently sitting on federal courts -- but just failed at the process of vetting them, getting them in to the President, making him comfortable with one of them, and moving forward. So they fell back to the person they knew, the familiar face in the room. That was almost a month ago. Now, with the top White House staff looking at each other suspiciously as they try to avoid indictment and with a president sliding into "Final Days" territory, they have to do the whole thing over again? Maybe, if as in the cases of Roberts and Bernanke there is an obvious choice, but I suspect it won't be so quick.

If all they had to do was satisfy the hard right, they could probably do it, especially if they don't worry about the nominee being female or Hispanic. But there is another factor they have to deal with now: Arlen Specter. A year ago, Specter was humbled and compliant. Bush and Santorum had saved his Senate seat from a right-wing primary challenge, and Bush had protected him when there were right-wing objections to his taking the Judiciary Committee chairmanship. But now the politics are very different. What's the right going to do to him now? What's Bill Frist going to do to either protect him or hurt him? Nothing. What good is the protection of a humbled White House? And knowing a little bit about Specter, I'm guessing that he feels highly insulted by the fact of the Miers nomination and that he was expected to push it through. An angry, empowered Specter is not a pretty sight, and my guess will be that if they send up a hard-right movement conservative, especially on choice, Specter will no longer feel any obligation to do anything to move the nomination forward. It's going to be much harder to satisfy both the angry right and the angry moderate than it would have been a month ago to just nominate one of the plausible candidates.

Posted by Mark Schmitt on October 27, 2005 | Permalink | Comments (13) | TrackBack



Posted by Mark Schmitt on October 24, 2005 | Permalink

Prisoner's Dilemma

There was a time when the conspiracy theorist in me was periodically obsessed with the Plame case, largely as an opportunity for the intellectual exercise of extrapolating the maximal theory from the most minimal facts. But now my attitude is more of a healthy, "we'll know soon enough."But having been particularly obsessed with the Judy Miller aspect of the story, and as an early advocate of the view that Judith Miller was involved in something more than just protecting a source, it's hard not to comment on today's New York Times story on the case. And without repeating the phrase, "raises more questions than it answers," it's clear that the reporting today is only the beginning of a very big story for the Times, one that in the end will make everyone at the paper forget that whole little incident of being scammed by an over-hyped young writer who claimed to have gone to places he didn't really go.

Lots of good comments at talkingpoints, Kevin Drum, Jay Rosen's PressThink (particularly thorough) and of course The Next Hurrah, despite "emptywheel" being away.

Two minor points that were of particular interest to me: First, the Times story made clear without saying it that Miller was extremely poorly represented by Floyd Abrams. She was involved in a serious criminal matter, and a First Amendment lawyer was about as useful to her in that situation as Harriet Miers would have been. The final showdown among the lawyers, with Abrams and the Times's lawyer encouraging her to hold out in jail until the grand jury expired, and her "real" lawyer Bob Bennett insisting that Fitzgerald would empanel a second grand jury and start the prison clock all over again, was quite telling. Of course Bennett was right. After taking the case the Supreme Court, Fitzgerald was not going to just let Miller walk out of jail on October 28.

One of the key points of this story which is not pinned down here or elsewhere is, when did Bennett become her lawyer? The Times refers to a chance meeting last November, but then moves on to describe a conversation when Bennett agreed to represent her, which was obviously at a later date than the meeting. How much later is worth knowing, because it's been my theory that as soon as Miller had a real lawyer and not Floyd Abrams, it was made clear to her that she had to find an excuse to testify.

On a related point, the most chilling sentence in the article is Miller's own assertion that when she was told by Abrams that Libby's lawyer had told the grand jury that he did not identify Joseph Wilson's wife as a CIA agent, Miller "took that as a signal that he did not want her to testify."

Consider that Time reporter Matt Cooper used a similar piece of information to reach the exact opposite conclusion. When Karl Rove's lawyer Robert Luskin was quoted as saying, "whoever he [Cooper] is protecting, it's not Karl," Cooper took that lie as a justification for testifying. That seems reasonable. You can agree to protect your source, up to the point where your source publicly lies, at which point, if you are a guardian of the truth, your obligation ends.

In Miller's case, she took his lie, and not just a lie but the fact of his perjury, as a signal that she should continue to assert her right to protect Libby. Let's work through this: she obviously admit's that it's not an absolute right that she's defendign. It seems to depend to some degree on what Libby told the grand jury. If he had told the truth, then she would have considered herself free to testify and tell the truth herself. But if he perjures himself, then she will keep holding back rather than contradict his testimony. She's not shielding the identity of her source anymore, now she's simply shielding his right to lie and protect himself. Again, it's the opposite of Cooper's logic that it's okay to protect a source but not to protect a lie.

It does remind one of the classic Prisoner's Dilemma: If your co-conspirator cooperates with the jailer, you should too, but if he does not you should not. In a prisoner's dillema, the players don't have information about what the other did, but in this case, Miller did learn what Libby said and acted accordingly.

There's a word for this, or three: it's called obstruction of justice.  If it is true that Miller refused to cooperate for many months on specious grounds largely because she took Libby's perjury (and of course she alone knew it was perjury) as a "signal" not to cooperate, it seems to me Fitzgerald would be entirely justified in indicting her for obstruction of justice along with whatever other indictments he may choose to bring.

Posted by Mark Schmitt on October 17, 2005 | Permalink | Comments (10) | TrackBack

False Symmetry

(cross-posted on tpmcafe.com)

Like Kevin Drum, I read the new essay by Bill Galston and Elaine Kamarck, The Politics of Polarization, over the weekend, and like Kevin, I came away intrigued by certain points but on the whole, frustrated and unimpressed.

And I say that as an admirer of both and of their great 1991 essay The Politics of Evasion, which I linked to and encouraged people to reread after the 2004 election, even though many of the myths and evasions that Galston & Kamarck identified at that time were obviously not relevant 10 years later. (For example, the Myth that Democrats can always fall back on control the House of Representatives has been shattered, I hope.)

Ironically, since I do still think The Politics of Evasion is worth reading, the new essay seems a little too caught in the spirit of the old, too focused on proving that the Democratic Party is in even worse shape than in the wake of the Mondale and Dukakis defeats. Which in some ways it is, certainly at the level of congressional politics, but not in other ways it's not. The world is in worse shape, and the Democratic Party is in bad shape but a very different kind of bad shape than back then. The Politics of Evasion was an aggressive wake-up call to a lot of people who were very complacent (the smug satisfaction of forever holding the House of Representatives is a good example). The furious debate about direction of the party, need for unity vs. diversity, opposition vs. governing, etc. that goes on at every level today was at that time a very restrained, specialized and closed conversation, to the extent that it went on at all.

In some of those debates, Galston & Kamarck take well-argued sides, such as rejecting "The Myth of Language" in both its vulgar form (we just need a soundbite or an "elevator pitch") and its sophisticated form (Lakoffian "framing").

As to their recommendation to reach out to the center, all I'll say is that those of us who are deeply and emotionally involved in the current crisis need reminders that to change the configuration of power, we have to figure out how to reach a large non-conservative population that is not as strongly motivated by passionate disgust for the Bush direction of the country as many of us are. That may be because they are moderate politically or because they do not want to devote as much of their mind and emotions to politics, particularly of the unpleasant kind. In either event, a politics of pure polarization or mobilization will be insufficient to build a majority. Fair enough point. But it's not obvious to me that there is a particular moderate ideological position that is what these voters are looking for. It may just be a matter of tone or the way Democrats reflect certain values.

But even before the bulk of the essay, I was struck by what might at first seem one of the more banal points:

Many Americans do not want to choose between a vigorous economy and a strong safety net, between individual liberty and national security, between social tolerance and moral tradition, or between military strength and international cooperation, and they resent a politics that forces them to do.

Well, sure. I agree with that as a generic statement. But which Democrats exactly are forcing those choices? I don't want to choose between a vigorous economy and a strong safety net either. And if you can show me that my strong safety net proposals would harm the economy (not like the Clinton 1993 budget package was going to hurt the economy), then I'll reconsider it. So would most Dems. But it's pretty clear to me that the #1 social safety net improvement -- universal health care -- would be a boon to the economy, even if only by making health care costs more predictable for businesses, and the only businesses to be hurt by it would be those profiting off inefficiencies in the current system. It was Bush who forced a choice between the safety net of Social Security and an alternative that promised great riches down the road; it didn't look to me like Americans had much trouble with that choice. Likewise the choice between liberty and security: even the ACLU mostly focuses on the question of whether the sacrifices of liberty actually enhance security. Military strength and international cooperation are a zero-sum tradeoff only in the mind of John Bolton. And then there's the choice "between social tolerance and moral tradition," which I suppose is Galston-Kamarck code for "that whole gaybusiness," which can indeed be an either/or choice for those whose moral tradition counsels intolerance. But this involves deeper social trends, and again, the starkest choices are being forced on voters by those placing anti-gay marriage constitutional amendments on the ballot.

That two smart and observant people can write that paragraph is in itself the Democrats' biggest problem, which is simply that Dems can be centrist or not-centrist and will still be portrayed this way. It's part of the genius of Bush's "unequal polarization" (to borrow Jacob Hacker and Paul Pierson's phrase): they can present choices in a stark and polarizing way -- invade Iraq or be weak on terror, to take the worst example -- so that an alternative is inherently seen as representing the opposite pole. You can do that when you control the agenda, and when the press and pundits are so naturally inclined to see the world in symmetries.

Democrats don't need to move to the center so much as to find a sharp and unmistakable way to make clear that we are the centrist party even if we don't change a thing. Ours is the party that wants the dynamic economy that only a strong safety net makes possible, that believes in the strength that can come from finding unity of purpose with other nations rather than pushing them away, etc. I could write that speech, and others have. But it's not getting through, obviously. The fact that Kamarck and Galston don't get it suggests that maybe the myth of language isn't such a myth after all.

Posted by Mark Schmitt on October 12, 2005 | Permalink | Comments (8) | TrackBack

Video Game Politics

I don't want to make too much of a casual comment by some random right-winger I don't know anything about, but this post on redstate.org seemed to capture the mood of the disgruntled right:

The White House line [Mark Kilmer]

We might have seen what the new White House line [on Miers] will be from Senator Lindsey Graham on FOX News Sunday. Graham insisted that "the keepers of the conservative flame" might be angry now, but that they'll come around as they learn more about Miers as the nominating process plays out.

This indicates that the WH does not understand how badly some want the final showdown with the Dems.

Ah, that's it, "The Final Showdown." "At last we meet, Mr. Bond." Have some people perhaps been watching a little too much Star Wars? A few too many late nights trying to reach the "boss level" of Final Fantasy 10?

Unfortunately, Mr. Kilmer is right. That video-game attitude very much captures the dynamic behind the Right's reaction to the Miers nomination. Through all the twists and turns of the Bush era, they were promised one big thing: a Supreme Court nomination, and not for just any seat but for this one, O'Connor's. Through all the disappointments with the abandonment of conservatism in fiscal policy, irresponsibility in foreign policy, the Medicare drug bill and all the rest, both the social conservatives and the libertarians consoled themselves with the thought that the big win would come with a Supreme Court nomination. It would not just be a judge who would vote to overturn Roe or bring back the exiled constitution, but one who, unlike Roberts, would provoke the last grand battle in the culture war, a showdown with the Democrats over the most basic questions of our destination as a country, and that their side would not just win, but win profoundly and forever, leaving Ted Kennedy and Joe Biden writhing in pain. It would be profound revenge for such setbacks as the fizzling of the Clinton impeachment, the last attempt at the final showdown.

Compared to this, Karl Rove's stated vision of 30 years of Republican dominance was modest. But they are of a piece, and the vision of 30 years or the final showdown explains very much of what's happened in the last few years, especially the mystifying tendency to continually up the ante of partisanship, to put more at risk in the service of some vision of total, existential domination that exists only in video games and Tim LaHaye novels.

But there is a reason that political parties of the past have never taken the Karl Rove/Tom DeLay approach, and the reason is that it's dangerous and ultimately self-destructive. There are no "final showdowns" in democratic politics, but the moment you acknowledge that -- as with the Miers nomination -- the whole approach falls apart. Politics is always a matter of continual struggle and negotiation and refinement -- as Al Gore used to say, "it's a day to day struggle for the American people." The genius of democracy is that it is never final, and it's not even always a battle.

I'm pretty partisan (more so now than in the past) and I hope I don't put my hard-fought credentials as a "fighting Dem" at risk by saying this, but I don't look for a "final showdown" with Republicans or conservatives. Neither, I would guess, do most Democratic politicians. As to this crowd and their peculiar attitude, yes, I want them gone and their poisonous influence cleansed from our politics. But once that's done, I want to move back to a kind of politics where a healthy, passionate and wised-up conservativism, a healthy and intellectually invigorated liberalism, and various fresh alternatives in between and on the edges rejoin a serious, ongoing, messy engagement in the business of democratic politics. That may sound fanciful, but it's a hell of a lot more realistic than video game fantasies.

Posted by Mark Schmitt on October 10, 2005 | Permalink | Comments (61) | TrackBack

The Council on Foreign Relations Doesn't Get It

(cross-posted at tpmcafe.com)

A press release has arrived from the Council on Foreign Relations: A new Council report shows that "the current climate of partisan politics is weakening American leadership." Seems about right to me. We've seen America's role in the world weakened by a war of choice supported by deception, we've had our fiscal position eroded by massive tax cuts for the wealthy that leave us at the mercy of our Asian creditors, we've sent John Bolton to represent us in the United Nations, etc. The report calls for "bipartisan foreign policy" and says "the United States should work with all?not half?of its collective foreign policy brain and talent if it is to maintain primacy in today?s globalized world."

Right on. I open the links in the e-mail eagerly. The Council on Foreign Relations has a lot of smart people, and they've probably got something useful to say about why this happened.

Indeed. The very first culprit identified in the rise of one-party foreign policy and the weakening of America is (drum roll, please):

The congressional schedule! Yes, that's it: "The jam-packed Tuesday-through-Thursday schedule for members of Congress means that fewer Democrats and Republicans actually know and relate to one another in Washington." The report's first recommendation for Congress is that committees "consider holding a monthly lunch meeting without staff or press." I look forward to the historian who will someday trace the decline of America as a world power to not enough monthly lunches.

The schedule isn't the only factor in the "complex variety of social, cultural, and technological changes" at work. The report does discuss partisan redistricting and the incumbent advantage in campaign finance. There's also the blogs: "It has become part of the game to have a proffered policy and its sponsor trashed in the media and disparaged in the blogs before it receives any traction."

And here's one you probably didn't think of: Democrats. The report explains that it's the narrowness of Republican control of the House that causes one-party rule, because "the tighter margin of control has given Democrats a reason to hope that they might win back majority status every two years." Yes, that means what you think it means: "Until [1994], it was in the interest of the minority to cooperate with the ruling party as it was hard to imagine anything other than minority status."

It's not exclusively the uppity Democrats' fault, of course: "On the flipside, this narrow control also makes it imperative for the majority party, now the Republicans, to demand party loyality. Otherwise, the Republicans have no hope of enacting the most controversial parts of their legislative agenda. Consequently, the whip machine simply cannot allow the level of dissent that Speaker of the House Tip O'Neill, for example, could afford to endure when he led the House with much larger majorities."

Italics are mine, to draw out that the report is alleging that Republican leaders have no choice but to twist arms and break kneecaps as they did on CAFTA and Medicare -- because, after all, they are entitled to enact "the most controversial parts of their agenda" -- whereas Democrats make the choice to act as a meaningful opposition instead of going along and lending their names to policies just so they can be called bipartisan.

This is offensive stuff, and the empirical assumptions are all wrong as well: The Republicans did not cooperate in Democratic policy before 1994; the Democrats have not had a realistic hope of winning back the House in most of the cycles since 1994; and Tip O'Neill most certainly could not "afford" to allow dissent among Democrats. Democratic defections gave Reagan a working majority in Congress on the 1981 budget and tax bills and at many other points. O'Neill would have vastly preferred to lead a more disciplined opposition to Reagan but it would not have occurred to him to enforce control "Hammer" style. It just wasn't done.

More to the point, narrowness of party control should be expected to encourage more cooperation and mutual respect, not less. House Democrats before 1994 did mistreat their Republican counterparts because they expected always to be in the majority; Republicans have returned the abuse many times over. But the Senate has traditionally been more civil and cooperative because every chairman knows that tomorrow he might be back in the ranking member's seat; most sitting Senators have seen their party win or lose control of the body a couple of times. They are more often reminded why they should treat others as they wish to be treated themselves.

This 47-page report on one-party rule in Congress somehow completely fails to mention

* The abuse of conference committees to drive through legislation written by a small group controlled by one party.

* The use of closed rules in the House to prevent amendments.

* The explicit "majority of a majority" rule under which the Speaker of the House refuses to move legislation that has bipartisan majority support unless it has support of a majority of Republicans alone.

* The abuse of the budget reconciliation process to drive through policies that lack bipartisan support and cannot be amended.

* Tom DeLay, Dennis Hastert, Bill Frist, Roy Blunt, the K Street Project, the Medicare bill, lobbyists writing legislation, the role of the Iraq invasion in eroding U.S. influence in the world, John Bolton, CAFTA, the list goes on...

I suspect that monthly lunches will not help much if these practices don't change.

If the problem is one-party control of policy, how could it be possible that the responsibility does not fall mainly on the one party that holds control and created the current system? How is it possible to rationalize that the problem of one-party rule is not the one party but the "narrowness" of its majority?

It's tempting to ascribe bad faith to the main author of the CFR report, who is identified as a former Washington Times reporter and Republican House staffer. But the project had a bipartisan advisory council, and I choose to see it as another example of just not getting it. Much in the report might have been true in the late 1990s, when that "pox on both your houses" approach made a little more sense. But it's simply not the nature of the problem today, which is a radical discontinuity from the rules and assumptions of the past. Not-getting-it is a story in itself. One reason that the Republicans have been able to so completely rewrite the rules of partisan control is that it's so radical, so sweeping, that most longtime Washington observers just can't see how much their basic assumptions about how the game works have changed.

As Jacob Hacker and Paul Pierson write in their fabulous new book, Off-Center: The Republican Revolution & The Erosion of American Democracy, "the problem is not just polarization. It is unequal polarization -- unequal between Democrats and Republicans, unequal in its effects on the governing aims of liberals and conservatives, and unequal in in its effects on American society."

Posted by Mark Schmitt on October 6, 2005 | Permalink | Comments (9) | TrackBack

Souter, or Kerik?

(cross-posted at tpmcafe.com)

The fascinating thing about the Miers nomination at this point is the cosmic uncertainty of its next direction. The Roberts nomination was as painfully predictable as his own lifelong preparation for it; the only question was whether more than half or fewer of the Senate Democrats would vote against him. (In the end, about half did.) On this one, assumptions range from confident predictions of 100-0 confirmation, since Democrats find risking it all on the unknown behind Curtain #3 far wiser than all the other options they've seen, and Republicans will fall in line because, well, because Republicans fall in line; to predictions that the nomination will be withdrawn.

I'm in the latter camp, because I think some big things have changed, Republicans have mentally moved on from Bush and started to think about 2008, and as soon as a few of the social conservative Senators turn on Miers, the whole thing will be impossible to manage. And remember that the person who is supposed to manage it is Mr. Frist, the most in-over-his-head Senate party leader since Scott W. Lucas. Rather than "Souter in a dress," as the right-wingers have called her, Miers is Bernie Kerik without the mustache.

(Nearly identical articles in this morning's Times and Post represent the best effort to make this problem go away, but they are a little too transparent. Both rely almost entirely on Judge Nathan Hecht, Miers's "on-again, off-again boyfriend" of many decades and previously best known as the only judge on the Texas Supreme Court to the right of Priscilla Owen, who reports that in the midst of her late-30s turn to an evangelical church, she told him, "I'm convinced that life begins at conception." Also quoted in the Times supporting Miers's credentials is Merrie Spaeth, identified only as a friend and a former Reagan administration official, but better known as the publicist behind the Swift Boat attack group. Perhaps this should be called the reverse-Swift Boating of Harriet Miers. And it also raises the question: Why do you need five bylines -- two in the Times, three in the Post -- to produce an article that was constructed entirely in the office of Karl Rove?)

It's easy to get deeply involved in deep strategizing around this nomination. Should Democrats provoke the internal warfare of the Republicans by embracing Miers even more closely? Should they gamble on what Rumsfeld would call the unknown unknown over the known unknown?

I realized last night that all this is too much double-thinking. The one and only thing to remember about Miers is that she is totally unqualified to sit on the Supreme Court.
It's not a particular thing, like that she went to second-string law school or has never been a judge or never argued a case at the federal appelate level. Nor is it that she's been disbarred or fell asleep in court or stole money from escrow accounts. (None of which are true, as far as I know.) It's that there's nothing there. Take away the George W. Bush-loyal-staffer aspect of her resume, and there's absolutely nothing except some modest corporate law-firm and bar-association management, skills that are of no relevance to the Court. Sure there's some ambition and toughness, presumably reasonable intelligence and a taste for hard work. To get a foothold in the law firms of Dallas in the 1980s she surely had to work, as the saying goes, twice as hard as any man. But she is hardly the pioneer that either Justices O'Connor and Ginsburg had been decades earlier.

The reason this is so important to say goes back to the fight over the Nuclear Option and the nominations of Janice Rogers Brown and Priscilla Owen last spring. One of the big underlying questions then was whether a judicial nominee's ideology, even way-out-of-the-mainstream ideology, could be a factor in confirmation. A number of us warned at the time that any deal that let an Objectivist crackpot like Brown go through would set the bar for extremist ideology so low that in effect, ideology could never be a factor. And Senator John Cornyn issued a statement immediately after the Owen confirmation crowing about "The Owen Precedent" that judicial philosophy could not be a factor in blocking a nomination.

Cornyn is wrong (and he won't hesitate to ignore his precedent when a Democrat is president), but the idea that qualifications are the main thing that the Senate should look at has a much stronger hold after the Nuclear Option deal. And that's why it's so important to be frank about Miers's qualifications. Miers is to qualifications exactly what Brown and Owen were to ideology. She sets the bar so low that if she's considered qualified, then who -- other than, say, Jack Abramoff -- is not qualified? If Miers is confirmed, it effectively establishes that neither qualifications nor ideology should be a factor in confirmation.

Given that the Bush presidency still has more than three years to go and there might well be two or more additional vacancies on the Supreme Court as well as numerous circuit court vacancies, this should be the one and only factor that Democrats should consider.

Posted by Mark Schmitt on October 5, 2005 | Permalink | Comments (5) | TrackBack

The Ponzi Victims Catch On

(cross-posted at tpmcafe.com...)

The reaction from the right to the Miers nomination should be a reminder of just why the Rove strategy of playing to the hard-right base is such a dangerous and unwise political choice: There's no turning back from it. It's like a Ponzi scheme, you have to continually borrow new money/enthusiasm to pay off the old, and you can never turn back. You can never decide to turn your Ponzi scheme into an ordinary business, because you're in too deep. And that's exactly what's happening on the right: they have been continually promised that the big payoff would come with a Supreme Court nominee to replace O'Connor, and instead they get a giant, "Trust me, it'll work out," at just the moment when "trust me" won't work anymore.

And like any Ponzi scheme, when it collapses, the collapse is total, and absolute. (By the way, I had written this before Ed Kilgore weighed in with his "balloon-mortgage" metaphor. Choose the metaphor that works for you.)

It's too early to make predictions about how this will play out in the Senate. This is someone who's never held a Senate-confirmed position and has no judicial record whatsoever. I'll get to Democrats in a minute, but there have to be some real questions about what Republicans will do. Remember, the 2008 presidential campaign has already begun. If you're a potential candidate like Senator Brownback, and you see this anger in the base, it is a golden opportunity to make some allies. And if Brownback turns on Miers, what are George Allen and Rick Santorum supposed to do? You could see the beginnings of significant bipartisan opposition to Miers, in which case the nomination would have to be withdrawn, even if it's not clear that the opposition would reach the 40-vote level.

On to what Democrats should do: Long before Harry Reid, I made the case for a politician on the Court. Hugo Black, Earl Warren, William Brennan -- many of the great 20th Century Justices had a background in the give-and-take, compromise, listening, and coalition-building of politics. I have always thought it was a great tragedy that Clinton did not take a chance and nominate Bruce Babbitt to the Court, despite the opposition of Orrin Hatch. But one term on the Dallas City Council is not what I had in mind. And the rest of her not-a-judge career has been as a corporate lawyer or an ultra-loyal Bush staffer. And take it from a staffer, carrying the garment bag -- literally or figuratively -- is just a very different political role than being in the arena oneself, and requires different skills. As David Frum wrote recently, "In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met." (That last bit alone should be disqualifying.)

In this respect, Miers would once again be a trailblazer: the first Justice to be characterized by strong personal loyalty to the president since another Texan, LBJ, gave the middle finger to his own congressional allies by appointing Abe Fortas, first to the Court and then to Chief Justice. And, as the Right never tired of reminding us during the debate over the Nuclear Option, that didn't work out so well. Nonetheless, Fortas was probably 100 times better qualified to serve on the Court -- he had, for example, argued Gideon v. Wainwright -- than Miers is, and he was in many ways a good Justice although compromised by his continued personal alliegance to Johnson. Miers is Fortas without qualifications -- a very bad model for the Court.

I don't really understand Harry Reid's earlier comments about Miers, quoted by Sam Rosenfeld: "The reason I like her is that she?s the first woman to be president of the very, very large Texas bar association, she was a partner in a law firm, she?s actually tried cases, she was a trial lawyer, and she?s had experience here. I could accept that. And if that fits into the cronyism argument, I will include everybody as a crony, but not her, when I make my case." Essentially what Reid was saying here is that he's so interested in non-judicial real world experience (anyone who thinks big Texas law firms are the real world, raise your hands) that he thinks that outweighs the crony problem. But it seems to me exactly the opposite: the crony problem ("the most brilliant man she had ever met") vastly outweighs this thin and perfectly ordinary legal experience. There are a thousand Harriett Mierses in the law firms of America, and at this point even a good number of them who are women.

But maybe Reid is cleverer even than I gave him credit for, and just lured Bush into the room with his angry, defrauded investors.

Posted by Mark Schmitt on October 3, 2005 | Permalink | Comments (10) | TrackBack