The Day After
Like Patterico, I’ve been giving the Miers nomination a lot of thought since the story broke, and I’m still pissed about it. Unlike Patterico, however, not all of my new thoughts are negative – only most. Patterico writes:
Our friend See-Dubya says on this blog: hey cheer up. It’s not Gonzales!
I assume he is being tongue-in-cheek. Because, kidding aside, we don’t know this. Sure, she is technically a separate human being from Alberto Gonzales. But [expletive deleted] is no reason to believe that the things we feared about Gonzales are not equally true of Miers, whose views are even more unknown, and who appears even less distinguished than the relatively undistinguished Gonzales.
At the risk of sounding like you should be happy to have been given a turd sandwich because at least you didn’t get a giant douche, I think we can safely say that Miers’s career is more distinguished than Gonzales’s. Both were partners in major Texas law firms, but Miers was managing partner while Gonzales was just another partner. Gonzales had a brief stint on the Texas Supreme Court, but can anyone honestly say he did anything on it to be proud of? Or is all this talk about “qualifications” really just a code word for “having the usual, expected stuff on your resume?” So while I agree that there are a number of better, more qualified individuals President Bush could and should have chosen rather Miers, Alberto Gonzales is not among them.
In a similar vein, Patterico also observes:
[Expletive deleted] would silly to suggest that Bush picking a crony is surprising; he’s got quite a track record of doing so. But it is highly disappointing. While Roberts was not the ideal nominee, he was pretty close, given his clear competence. From what I know, Miers doesn’t even come close.
The cronyism charge definitely has a grain of truth, but one that may be a bit overblown here. In recent weeks, President Bush has come under his share of fire, much of it deserved, for cronyism with respect to other nominees in other positions. Much has been made lately of former FEMA Director Michael Brown and ICE Director appointee Julie Myers. Allegations of Brown’s alleged underqualification strike me as largely unfair, as his critics have largely harped on his last pre-FEMA job, and implied he jumped straight from that job to the FEMA directorship when in fact he had served as deputy director and general counsel for several years in between – and also handled previous hurricanes without incident. Myers’s criticism, by contrast, is completely justified – she’s a young attorney with no law enforcement experience whatsoever who happens to be related to someone really important.
Nothing remotely analogous to this can be said of Harriet Miers. For one thing, she’s a veteran attorney, for chrissakes. That alone makes her an order of magnitude more qualified for the Supreme Court than the fictional Michael Brown was to lead FEMA or the real Julie Myers is to lead ICE. Here, the cronyism charge is quite different – of course she has the minimal qualifications for the job, the question is couldn’t Bush have found someone more qualified for the job, albeit someone he personally didn’t know quite as well? That’s a fair question to ask, and it’s also fair to point to Brown (maybe) and Myers (definitely) when asking how much trust one should place in the President to make such a determination on his own. However, it’s also important not to miss the forest for the trees. Miers may not be the best pick for the Supreme Court, but she’s also not the Julie Myers of the Supreme Court, either.
Other canards include:
Harriet Miers was a Democrat in the 1980s.
BFD. So was everyone else in Texas back then. In the early 1980s even Phil Gramm was a Democrat, and Zell Miller remains one to this day.
B-b-b-b-ut … she gave money to Al Gore! Al Frickin’ Gore!!!!
Er, yeah – in 1988. Lest anyone forget, the 1988 edition of Al Gore was vastly different from the one who brought us a green weenie book in 1992, tried to steal the Presidency in 2000 and created the Internets in between. Al Gore 1.0 was pro-life, pro-gun and tough on crime. That Al Gore was the “Republican” who got us all started on Willie Horton.
Harriet Miers is active in the ultra-liberal ABA
Technically true, but highly misleading. The American Bar Ass. is indeed an ultraliberal organzation, but it is not supposed to be. Its purported mission, after all, is to represent the entire legal profession, not just the liberal elements it really does represent. Most conservative lawyers, myself included, gave up on them a long time ago and wouldn’t consider (re-)joining. Miers has worked tirelessly – and, alas, fruitlessly – to reform the organization, particularly in her efforts to get rid of its unforgivable position on abortion. For a conservative to diss Miers over her “connections” to the liberal ABA makes about as much sense as getting mad at John Bolton because he’s an ambassador to the anti-American UN.
Harry Reid likes Harriet Miers, so there must be something wrong with her.
Harry Reid also likes Antonin Scalia better than Clarence Thomas, particularly when it comes to comparing Scalia’s opinion in a case Scalia never wrote on to Thomas’s “embarassing” opinion that was brief, succinct and to the point, and neither of which Harry Reid himself had even attempted to read. What or even if Harry Reid thinks about Clarence Thomas, Cal Thomas, Antonin Scalia, Anthony Soprano, John Roberts, Oral Roberts, Harriet Miers, Dee Dee Myers, Ruth Bader Ginsburg, Allen Ginsburg, Sandra Day O’Connor, Erin O’Connor, Stephen Breyer or Breyer’s Ice Cream is of no consequence whatsoever. Harry Reid is, for want of a better phrase, an all-purpose idiot. If that phony legal doctrine of his co-idiot Arlen Specter had caught on, by now Harry Reid would probably be known instead as a “superidiot” who, unlike a regular, garden-variety idiot, is biologically incapable of nonidiocy. Indeed, the only person who is a bigger idiot than Harry Reid himself is anybody who bases his own opinions, in whole or in part, on what Harry Reid thinks on any issue. Just because was one of a couple dozen dolts who opposed the nomination of the relatively moderate, hyperqualified John Roberts does not mean it is beyond the realm of the possible that he may now support a less qualified, more conservative candidate that he just happens to like on a personal level. Yes, he really is that dumb.
Harriet Miers was never on law review.
Actually, she was, but thank you for playing.
George W. Bush promised to appoint conservatives to the bench! He broke his promise!
Maybe, maybe not. What little is known of Miers’s positions on constitutional or pseud0-constitutional (e.g., abortion) issues suggests she is a conservative indeed. There’s certainly no more reason to doubt Miers’s conservative bona fides than there is to doubt John Roberts’s.
Dammit, I don’t care if she’s a conservative! It’s all about her qualifications, or lack thereof, to be a judge. Oh yeah, I almost forgot: BushLied!TM
Note that the last two arguments, despite being polar opposites, are linked to a single blog entry. Sorry, can’t have both arguments. Pick one. If we’re going to harp on Bush’s campaign promises, all we can hold him to is that his nominees should be conservatives who share his judicial philosophy. He promised that. He did not promise to appoint sitting judges, law professors, acclaimed legal scholars or any of the other usual suspects, even while we all may have privately assumed (and hoped) he would. If you want to argue that Bush broke his promise because Miers isn’t really a conservative, then I’d be interested in hearing why you think she isn’t, but I’d be even more interested in hearing where you were during the Roberts hearings. Conversely, if you want to argue that Miers isn’t really qualified for the job and her conservatism is irrelevant, then by all means, make that case, but do check that silly “Bush lied, justice fried” meme at the door.
As of this writing, I still lean toward the position that Miers’s nomination was a mistake, and to the extent it was based on cronyism, it was based on President Bush having placed too much trust in his own judgment and too little on that of others who know far more about our legal system than he himself does. Beldar has done an excellent job convincing me that Miers is not an absolultely awful pick, but the only person who can convince me she was the right pick, or even a potential right pick among the others who were expected, is Miers herself. She might well pull that off in the confirmation hearings, but until she does, I remain presumptively opposed to her nominations. Nevertheless, I must say that if I hear one more silly, knee-jerk argument against her from the right, I might just switch gears and start supporting Miers’s nomination purely out of spite.
UPDATE: Just for the record, Patterico did not swear. The expletives deleted from his quoted sections – it and there, are syntactic fillers, which is the real meaning of the word “expletive.”
October 4th, 2005 at 7:58 am
Ill agree with you on the cronyism thing..This president seems to fill near every available spot with family freinds..
in Roberts case, not bad…the case is still out on some others..
I can understand the disappointment that
this nomination might have brought to those wanting a war in the senate over new judges.If you are like me and want our courts as apolitical as possible (a
political stand of its own ;o))then this nomination is a painful but necassary
“gift” to the other side.Bush is smart though.She may be a version of Souter in
differant clothing.
October 4th, 2005 at 8:32 am
“A grain of truth“?
That’s like saying an black is a darker color than canary or that gang rape is like a honeymoon.
October 4th, 2005 at 9:07 am
No, it’s like saying that appointing a minimally qualified individual you personally know and trust but who isn’t a known quantity to the populace at large is not a very good idea. It’s hardly the same thing as appointing a thirty-something lawyer with no immigration or law enforcement experience – but who happens to share a surname with her really important uncle – to head up ICE.
October 4th, 2005 at 9:59 am
X,
Your looking at qualifications. I’m looking at separation of powers and cronyism.
On the count of cronyism, the case just doesn’t get much more solid.
We need, especially between the executive and judiciary to maintain a separation of powers so that the judiciary does not become a rubber stamp of the executive.
If I was a plaintive before the SCOTUS with Meirs sitting on the bench and I had a case against the Bush administration or its policies, wouldn’t I be at an unfair disadvantage? What would be the perception of justice?
October 4th, 2005 at 10:12 am
Miers
This is in many ways, a used car sale – an unknown quantity being sold on a smile and a “c’mon, trust me” line – and since there is no test drive
October 4th, 2005 at 10:15 am
I don’t think you can separate the issues of qualifications and cronyism. To do so would define cronyism down to the point where the word would lose almost any meaning at all. Your separation of powers question is interesting, but on this I have to take the long view. If a case comes up between you and the Bush Administration policy – something fundamental and close to Miers’s current duties, that is; not a case that happens to be called Deignan v. Bush on paper but is really just a dispute between you and some low-level bureaucrat Bush has barely heard of and Miers has never even met – then Miers should probably recuse herself from that case. But the potential existence of some cases like that is no reason to keep her off the court completely. Once this Administration is gone, I want there to be at least a couple Justices on the Court who understand the executive branch and how it works. I don’t want a rubber stamp, as may occur if all nine had that background, but I don’t want the opposite problem, either.
Address the qualification issue, and the phony crony argument goes away.
October 4th, 2005 at 10:41 am
McCain-Feingold
Maybe that is a better example of the importance of taking cronyism seriously.
On the matter of qualifications, the Constitution is well-encoded document of the description of a democratic system. I doubt that Miers has the capacity to understand how an interpretation of one aspect of the Constitution affects other rules and processes. We certainly have no surety that she does.
We are being told, point blank, its none of our business to be concerned with these matters. We should just trust Bush. He will take care of all of these nasty details—until when? When will we determine that the system that was carefully constructed to function can no longer do as it was designed?
When we need it most.
This cronyism is intolerable. There are near to 1000 dead in NOLA alone due to governmental dysfunction. Intelligence has been one debacle after another–no oversight worth a damn. The DPRK talks are a sham. The new Iraqi constitution specifically sets up a situation that enables the rise of sharia as the law of the land–no democracy there for long. Nothing is being done while Iran develops nukes. Why should we yield to partisan politics and give this president a pass on something as blatant as this? Where will he stop?
Bush has serious accountability problems. I’ve outlined some at my site. My hope is that enough of us with some sense will see that there is a point that a line needs to be drawn. May I suggest that this is a fine time to draw that line?
October 4th, 2005 at 11:33 am
XRLQ – I think the concern about cronyism is slightly distinct from the concern about qualification. Given that one of the things the Bush family is known for is cultivating a sense of personal loyalty, it’s a legitimate question to ask Miss Miers just how far her loyalty to Bush goes, and whether or not that loyalty would cause her to always decide cases the way Bush would want her to.
This is different from the ordinary “people with executive branch experience” question. Justice Roberts has executive Branch experience, for example, and that isn’t a problem – but he wasn’t/isn’t a close member of the Bush inner circle. Miss Miers is.
October 4th, 2005 at 12:18 pm
X, you’ve got a munged link/blockquote sequence here:
—snip—
That Al Gore was the “Republican” who got us all started on Willie Horton.
Harriet Miers is active in the ultra-liberal ABA.blockquote>
—snip—
October 4th, 2005 at 12:29 pm
[...] Xrlq: At the risk of sounding like you should be happy to have been given a turd sandwich because at least you didn
October 4th, 2005 at 12:50 pm
I think the concern about cronyism is slightly distinct from the concern about qualification.
It should be — but in the final analysis you have to weigh them against each other. I happen to think that loyalty to the president shouldn’t trump good qualifications. (I’m speaking in the pure hypothetical, since in this case the qualifications seem to consist of “trust me.”)
As far as I’m concerned the cronyism meme is just smoke being blown by people who can’t come up with anything else to be upset about. And when it comes to this nomination, I’m mystified as to how people can be left with something as lame and empty as shouts of “CRONYISM!!!1!!”
October 4th, 2005 at 1:00 pm
Expletives deleted?
October 4th, 2005 at 1:00 pm
What’s with all the [expletive deleted]s when there were no expletives in my quotes?
I think someone who has been a partner at a law firm, a state Supreme Court Justice, and has had time as both White House Counsel and AG is marginally more distinguished than someone who has been a co-managing partner at a firm and White House Counsel (oh yeah, and the Lottery Commission head — don’t forget that!) — but only just.
Bottom line: I do think having been on the Texas Supreme Court means a good deal.
October 4th, 2005 at 1:01 pm
McGehee,
Imagine the state of US justice if the courts were packed with political cronies.
Then look south of the border. Compare and contrast.
October 4th, 2005 at 1:32 pm
“Imagine the state of US justice if the courts were packed with political cronies.”
I don’t have to imagine, I live in Washington state.
October 4th, 2005 at 1:42 pm
Sure there were, “there” and “it,” to be exact. Both were used in contexts where perform purely syntactic functions and have no semantic content, and are thus textbook examples of expletives. What did you think I meant?
Add to that what you did forget – namely city councilwoman, president of the Dallas Bar, and first woman president of the Texas Bar, not to mention her current and past positions with the White House – and at some point “only just” starts to cut the other way. Of course, Gonzales has some additional qualifications, too, such as being a board director of the Texas Bar. I don’t know if he served under her or not. I do know that John Roberts didn’t serve under Harriet Meirs, but only because they served in different administrations.
Why on earth? It’s one thing to tout Janice Rogers Brown because of the wonderful things she has done on the state Supreme Court. It’s quite another to give anyone brownie points simply for being on it. AFAIK, Gonzales’s principal accomplishment on the Texas Supreme Court was to write an idiotic and completely unnecessary concurring opinion that came back to haunt his then-colleague, Priscilla Owen. If simply being on a court were some great accomplishment in its own right, then what’s your beef with Miers? She may not have any experience on the court now, but that problem will cure itself in a year or two. Unless there’s somethign special about the Texas Supreme Court in particular that makes it more impressive than its federal counterpart, I can’t see why anyone would be more impressed by the guy whose biggest accomplishment was getting nominated by George W. Bush to sit on the Texas Supreme Court than he is by the woman whose biggest accomplishment was getting nominated by George W. Bush to sit on the U.S. Supreme Court six years later.
October 4th, 2005 at 2:01 pm
Pet peeve time:
Populous is a word describing an area that has a large population (relative to its size).
Populace is a word meaning the people who live in an area.
[D'oh! And "populus," which I wrote, is a word meaning "A glycoside, related to salicin, found in the bark of certain species of the poplar, and extracted as a sweet white crystalline substance," which I obviously didn't mean, either. It's fixed now. -X]
October 4th, 2005 at 4:06 pm
I’m with the right-wingers on this one. Miers seems underqualified for the job, and I’m frankly not in the mood for simply trusting W on this one.
And even as a (partial) defender of Miers, you gotta admit: there’s no way in hell she’s more qualified than Janice Rogers Brown, who was a current district court justice, former state Supreme Court justice, a hell of a legal scholar and writer. As a justice, Brown would have been a position to shape law; my initial hunch about Miers is that she will simply wind up being a voter.
October 5th, 2005 at 8:34 am
I just gotta think that each of the oft-mentioned candidates had the same reaction to Roberts (“good choice”) and to Miers (“WTF?”).
Again, the best defence of this I’ve seen is “father knows best.” Didn’t work with Haynesworth or Fortas (for CJ), and it won’t work now.
October 5th, 2005 at 1:04 pm
“Neverheless, I must say that if I hear one more silly, knee-jerk argument against her from the right, I might just switch gears and start supporting Miers’s nomination purely out of spite.”
After visiting various sites like the corner and galleyslaves, the above pretty much sums up my reaction.
Maybe those of us who don’t know anything about her ought to wait until after she has a hearing before deciding anything.
October 6th, 2005 at 12:49 pm
Imagine the state of US justice if the courts were packed with political cronies.
Non sequitur and unresponsive.