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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will fall in line because, well, because Republicans fall in line; to predictions that the nomination will be withdrawn.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


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First, the apologies. I'm a yellow-dog D who thinks that almost all of Bush's judicial appointments are disasters. The cronyism in Miers' nomination is regusting, and her politics are way to my right, even if they are as good as I can hope.

But I keep hearing how Miers is unqualified for the Supreme Court. I think that I scent a bit too much credentialism. Miers is one of the leading luminaries of the Dallas bar, and became so on her own merits, well before she was a made Bushie. And Whizzer White was one of the luminaries of the Denver bar before Kennedy tapped him for the Supremes. Nobody complained about White's competence, either before or after. What's the difference? Whizzer was a football hero who graduated from Yale Law. Somehow, I don't think that White's football explots are the difference.

I'm in the law biz, and I graduated from Yale Law. I know some pretty good lawyers from Yale, but also know some pretty good lawyers from Jesus Barbecue U. I also know some relative dullards who clerked for Supreme Court judges, and some super-sharp people who did not. And I know a few Yalies who I wouldn't trust with a real estate closing. Pedigree is greatly overrated in the law business.

I know that Miers was a business litigator, unaccustomed to constitutional law. But this should not be held against her. Henry Friendly is on everybody's list of top five judges who didn't make the Supreme Court. He was a business litigator before he went on the bench, and a pretty slick Constitutionalist afterwards. As was Justice Stevens.

I doubt Miers would make it as a law professor, but Frankfurter or Scalia were never much as Justices.

Okay, so Miers is on nobody's list of the best nine lawyers in the country, and maybe not on any list of the best 100. But she would be on many lists of the best 1000. That ain't shabby. I don't think that this amounts to "unqualified for the Supreme Court." After all, I wouldn't consider Earl Warren one of the top 10,000 lawyers in America. He was a pol, not really a lawyer, but he made a mighty fine Chief Justice.

Posted by: Joe S. | Oct 5, 2005 1:43:16 PM

"If Miers is confirmed, it effectively establishes that neither qualifications nor ideology should be a factor in confirmation."

And perhaps that is a large factor in the President nominating her. That "advise and consent" means simply consent. "Imperial Presidency" seems to wildly understate the expansion of executive power the Bush administration seeks. Precedents are being established that not just make "elections matter", but make elections, not law, precedent, tradition, comity, but only elections matter.

Winner take all.

Posted by: bob mcmanus | Oct 5, 2005 1:58:08 PM

Joe, you can't serioulsy believe that being one of the top 1,000 lawyers in the country is enough to make one "qualified" to sit on the Supreme Court. There are only nine seats on the court. Surely we can afford to set the bar a bit higher than that. Bush has already lowered the bar on so many issues, I tend to agree with Decembrist that this is one worth fighting about on principle. Frankly, I'm not sure that Miers would even clear the low hurdle your suggest. I'm betting a lot of lawyers in DC, LA, and Washington would be willing to argue that she doesn't belong in the top 1,000. There are 400,000 members of the ABA--and even given the puff stories in the Times and Post today, I have a hard time believing she's really among the top 1,000.

More to the point, your comparisons to White and Warren just don't hold up. So what if Warren was a "pol." As Governor (three terms), and Attorney General of California, he dealt with constitutional issues regularly. He had a level of experience that even makes Roberts look weak, much less Miers! White was first in his class at Yale, clerked on the Supreme Court, and was Deputy Attorney General for two years. There's no comparison to Miers, Navy service, football, and links to PT-109 aside.

I'm sure if you go back to the Truman era, much less to the 19th century, you can probably find some rather unqualified justices who look rather similar to Miers. But that's no reason to adopt such a low standard now.

Posted by: SDP | Oct 5, 2005 6:07:22 PM

Great essay.

I think you point up the reasons that she may not make it out of committee....there are multiple nagging issues, including her deep involvement in the executive branch, that would make this a bad precedent, on top of which there are ideological motivations on either side...and that creates pressure to look for a "way out."

And, stepping back....while I concede that Roberts is a brilliant legal mind...I think folks may have underestimated the possibility that he may be much more deeply conservative than anyone now thinks. And so when you start to think how opinions would be shaped with: Roberts, Scalia, Thomas and Miers as a bloc....it becomes very, very clear that we are in a completely new territory here, and, really, a perilous one for our nation.

I think Scalia and Thomas have been quite damaging as Justices to the fabric of the court. And Miers shows no indication that she would bring "vision" "weight" or "humanity" to the new-look conservative bloc. She's clearly no O'Connor. (God, you wonder what she thinks.) A home run for Bush would have been a brilliant, visionary, accomplished moderate who had enough of a conservative pedigree to pass with the base, but who won the day on merit and brilliance alone.

Miers, whose public statements have been both overly 'Roved' and less than inspiring, makes me think that the only thing worse than a hard core conservative bloc on the Court....would be if that bloc were made up of Roberts + three of the worst Supreme Court justices ever.

Scary thought.

Posted by: kid oakland | Oct 6, 2005 2:05:10 AM

She's a fixer. Her only distinguishing characteristics are envangelism and a nauseating loyalty. Democrats who don't oppose this nomination are abandoning the court.

Posted by: Lemon Merengue | Oct 16, 2005 3:40:09 AM

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