David Frum is back on his meds (h/t: Spoons), and now offers a more sober take on his opposition to Miers’s nomination. Unlike his previous entry, this one reads like Frum is at least trying to understand the issues presented by Miers’s nomination. Unfortunately, he nevertheless fails. Once you cut through the fluff about how Frum doesn’t hate the President or Meirs but feels a need to play Amnesty International and speak for thsoe who can’t, you’re basically left with the following arguments?

All the cool kids on the block oppose her, so you should, too.

As Frum won’t and probably can’t name the names of all the Washington insiders who allegedly oppose her, it’s tough to verify whether that’s true or not. Assuming it is, I suppose it is some evidence that her appointment may have been a mistake, but it’s not the smoking gun evidence Frum appears to think it is. Frum’s own understanding of the legal issues strikes me as more than a little confused, so for starters I see little reason to assume he is any better at identifying the legal “experts” from the hacks than George W. Bush is. Assuming he’s right about that, and that all the heavies really do oppose Miers’s nomination, that’s pretty strong evidence that she is either a bad pick or simply an atypical one. I’m sure all these unnamed sources will tell you all the same lines we’ve heard over the past few days about how they’re not elitists who expect every Supreme Court Justice to come from an Ivy League school and serve years as an appellate judge or at least clerk for a Supreme Court Justice and blah blah blah. Fine. Let them provide their short lists of candidates, and cross out all the names of those who fit the usual “elite” standards they supposedly aren’t demanding. See how many others remain on those non-elite lists who excelled at respectable but not first tier regional schools, and who have distinguished themselves primarily through private practice at major firms rather than in one of the three branches of federal or state government. How many names do you think would remain on those allegedly non-elite lists? Any? If not, their real issue is not with Miers’s qualifications or lack thereof, but with Bush’s decision (with the rare but not unprecedent advice and consent of the Senate) to pluck a Supreme Court Justice from a less traditional source.

John Yoo, a really smart guy who has probably never met Harriet Miers, wrote that some unnamed journalists he also hasn’t met wrote that Miers, who for all we know even the journalist himself hasn’t met, was not known as a “forceful” conservative on two whole issues, stem cell research and affirmative action. Therefore, Miers must be a liberal on affirmative action.

Either Frum is a much better legal expert than I, or I’m just an idiot for failing to understand what on earth the Bush Administration’s position on stem cell research has to do with anyone’s qualification to sit on the Court. Affirmative action is relevant, of course, but as a constitutional matter it’s not nearly as clear-cut as Frum makes it out to be; indeed, a conservative case can be made that while affirmative action may be bad policy, it is nevertheless constitutional unless conservative judicial activists do to the Equal Protection Clause of the Fourteenth Amendment what the liberals have already done to the Establishment Clause of the First. And yes, I do realize that admitting as much on this here blog, I’m virtually guaranteeing that if I’m ever appointed as a judge, Patterico will actively oppose my nomination. That’s just a chance I’ll have to take.

But enough about the constitutionality (or lack thereof) of affirmative action. The point, as Patterico has rightly acknowledged, is that know the first thing about Miers’s position on it. All we have is Frum’s implausible leap from “Heard it from a friend who heard it from a friend who heard it from another she hasn’t been very ‘forceful’ on this issue” to “She’s so goddamned forceful, I’ll bet that while she was a mere assistant to the President, not even employed in a legal capacity, she was the one who made President Bush make Ted Olson wimp out on Gratz and Grutter.” Either that, or Frum really does have some other knowledge he simply isn’t letting on, but if that’s the case, it’s about time that he stops throwing around his conclusions and starts showing more of his work.

As a bureaucrat, she’s been so detail-oriented that she annoyed some of her less detail-oriented colleagues, and some of those colleagues didn’t think she was good at delegating, either.

So what? Those traits may well be annoying to bureaucrats, but I want White House memos to have correct punctuation, and I would accept no less from the Supreme Court. It’s kinda funny hearing Frum bitch about “14 months of working with [Miers] on punctuation” so soon after delivering an embarassingly typo-ridden hit piece on her the day before. Embarassing typos on a blog like Frum’s or mine are no big deal, but poorly phrased pronouncements in a Supreme Court decision can lead to all sorts of bizarre results when lower courts do what you said rather than what you meant. Frum might understand this better if he spent a little less time inside the Beltway and a little more inside the Ninth Circuit.

Miers never expressed a view on any policy issue to Frum except her opposition to Bush’s decision to end the liberal ABA’s longstanding role in the judicial vetting process.

Frum then goes on to quote John Yoo again, for whatever reason. That’s too bad because if this is the one issue Frum actually has any firsthand knowledge about, I’d really like to hear more of it. More specifically, I’d like to hear someone elaborate as to why she opposed the move, as I have to think many other conservative lawyers also did? Frum appears oblivious to how ballsy that move really was. There is a reason why a long line of Republican administrations prior to Bush groused about the ABA but tolerated its role in the vetting process. It’s not because Reagan was more liberal than Bush, and it sure as hell wasn’t because the ABA was less politicized back then. If anything, the opposite.

Frum then ends his piece on a “don’t trust me, trust my unfounded assertions, instead” note:

Some NRO readers have challenged me: Why should we trust you when you say that Miers is not qualified rather than trust the president when he says she is?

My answer is: Don’t trust me. Trust your own eyes. The woman is 60 years old, a lawyer for more than three decades. Can you see any instance in this long life and career where Miers ever took a risk on behalf of conservative principle?

Er, yeah. For years, she fought an uphill battle to remove the pro-abortion blank from the ABA’s charter. She also helped to defeat the lawsuit that would have prohibited Bush and Cheney from running together in 2000. Most of her other work is decidedly apolitical, but then again, so is mine, and so is that of most other attorneys in private practice. Deal with it – or admit that your real objection is to letting outsiders in, and not to Miers in particular.

Can you see any indication of intellectual excellence? Did she ever do anything brave, anything that took backbone? Did anyone before this week ever describe her as oustanding [sic, I guess that means Frum doesn't have Harriet Miers around to edit his blog] in any way at all?

I’m not going to re-hash all of Miers’s past accomplishments for the umpteenth time. Beldar has already done so, and quite well. What I will say is to describe her professional accomplishments in any terms other than outstanding is either exceedingly dishonest, excedingly ignorant, or some combination of the two. What Frum should be asking is not whether Miers was highly successful – of course she was – but whether her success is the type of success that transfers well to the bench. I don’t know pretend to know the answer to that question myself, which is the main reason I remain not pro-Miers, but merely anti-anti-Miers (or at least “anti” the facile, everything-and-the-kitchen-sink arguments the Frums of the world keep churning out).

I am not saying she is a Michael Brown. But I am saying she is being chosen for her next job in exactly the same way and for the same reasons that Michael Brown was chosen for FEMA.

Michael Brown was chosen for FEMA in part because he fudged on his résumé, but I don’t think Frum is suggesting Miers has done anything like that. Apart from the résumé padding, however, I’m not convinced Brown really was that bad of a director. His agency handled all but one of the hurricanes on his watch just fine, and also did fine on that one in every state except one. There his only real mistake was in following the rules and sticking to his agency’s proper mission under our federalist system, rather that usurping the powers of a dysfunctional state. There may have been elements of cronyism in Brown’s case as well, and there certainly are questions about how successful he was in some of his pre-FEMA endeavors. There is nothing analogous to this for Meirs, who had an extremely successful career long before she’d even met George Bush – and without which, she probably never would have.

And that is not good enough for me. Is it good enough for you? Hugh Hewitt, you are a lawyer: Is it really good enough for you?

I’m not Hugh Hewitt, nor am I nearly as sold on Miers as Hewitt appears to be, but I am a lawyer so I’ll answer the question anyway: Objection, Your Honor! Assumes a fact not in evidence. Well, several facts, really. Rather than stating generally that Miers’s nomination was just like Brown’s – which could mean all sorts of things, depending on what assumptions you choose to make about Brown’s – why not describe the exact process you think led to Miers’s nomination. Then ask Hugh and the rest of us if we believe you. If the answer happens to be “yes,” then and only then does it make sense to ask if this is “good enough.”

Last and least, I think I have come with one – count ‘em, one – good reason to oppose Miers’s nomination. OK, maybe not really a “good” reason per se, but it’s much better than anything David Frum or George Will has been able to come up with so far:

If Harriet Miers is confirmed, and turns out to be a decent Justice, she’ll set a precedent that makes it OK for private practitioners with no judicial experience to be named to the court. Years later, when President Clinton is nearing the end of her second term, she will then appoint herself and her husband to sit on that court for life and the Republican Senate minority, having long since done away with the unconstitutional option, won’t be able to do a damned thing about it.

There. Now you have at least argument against Miers’s appointment which I cannot prove isn’t true, and which, if true, would be a very convincing reason for any conservative to oppose Harriet Miers’s nomination. Are you listening, David Frum?

UPDATE: Kevin McCullough similarly fact-checks Ann Coulter’s latest article, which he rightly accuses of sloppiness. Unfortunately, his otherwise excellent piece is blighted by a bit of own-slop:

Ann’s energy was most focused on the fact that SMU was the dredge of law schools in America. And while SMU did rank lower than Ann’s own Michigan University, consider this. Ann practically worships the ground Ken Starr walks on and he’s the Dean at Pepperdine University’s school of law – which ranks 97th on the list.

Neat, but there’s a leeetle difference between attending any given law school, on the one hand, and becoming the dean of that school, on the other. My alma mater, like Coulter’s, ranked comfortably within the top 10 while I attended, and remains among the 13 “top ten” schools listed on Muscleman’s list to this day (Starr’s alma mater, Duke, does not, but as one of the five vying for 14th place, it’s pretty close.) Nevertheless, the odds of me being offered a job as a dean, or even as a lecturer, at any of the top 190 ABA-accredited law schools (and that’s all there are), are roughly the same as the odds of me being invited to burp the national anthem at Carnegie Hall. If the Dean of Yale wants to pooh-pooh Starr for “only” being able to land that job at a third-tier school, fine, but I don’t think anyone else should.