Posted on 10/14/2005 3:20:28 PM PDT by Neville72
David Frum said Tuesday the nomination was sinking.
Opinion polls don't support the notion of a sinking nomination.
A Gallup poll for CNN and USA Today released Wednesday showed 44 percent of respondents described the Miers pick as excellent or good, with 41 percent saying it was fair or poor, and 15 percent offering no opinion. Among self-described conservatives, 58 percent said the pick was excellent or good; 29 percent thought it fair or poor.
In an Opinion Dynamics poll conducted for Fox News released Thursday, 37 percent of respondents (57 percent of Republicans) said they would vote for Miers, 32 percent said they would vote against her, and 31 percent said they were unsure.
Support for Miers is much weaker than support for John Roberts was shortly after his nomination was announced. But this is hardly surprising in view of the facts that:
(a) hardly anyone had heard of Miers before she was nominated, and
(b) so much of the conservative punditocracy immediately dumped on her.
To me, the key figures in the Opinion Dynamics poll are these:
Just over half of Americans (51 percent) think most people are jumping to conclusions about the Miers nomination and about one in five think she is receiving fair consideration (19 percent).
Even so, few (13 percent) say they have heard anything about Miers that would disqualify her from serving on the Supreme Court.
Miers clearly has a sale to make. But most Americans are willing to wait to see how she performs at her confirmation hearings before making up their minds, pro or con.
If it develops that Miers is a secret member of a Satanic cult, or she makes a fool of herself at the hearings, her nomination will be withdrawn, or fail. But if Miers comes across as intelligent and knowledgeable, and a judicial conservative (that is, she believes it the duty of the courts to adjudicate, not legislate) then it is difficult to see how any Republican senators -- especially any of the Republican senators who voted for Ruth Bader Ginsburg or Stephen Breyer -- vote against her. Here's political analyst Charlie Cook:
In spite of the dismay among many conservatives who expected President Bush to nominate a high-profile, bold conservative with a clear record on constitutional issues to the Supreme Court, Harriet Miers will be confirmed by the Senate to replace Sandra Day O'Connor. If it turns out that Miers was a disciple of a cult serial killer or confuses the First and Fourth Amendments to the Constitution, all bets are off, but assuming a passable performance and no skeletons in her closet, she’s home free.
Simply put, Republican senators have to deal with this White House and president for another three years. This isn't just any old confirmation vote, or just any Supreme Court nomination fight. This is a close, personal friend of the president, for whom their party leader climbed out on the end of a very long limb. Most Republican senators will be very reluctant to oppose such a personal choice of the president’s, despite their misgivings about Miers' lack of record and modest qualifications. A few will, but most will see discretion as the better part of valor.
Assuming nothing explosive is found in her background, and she performs creditably during the hearings, a GOP senator could not credibly oppose her on the basis of principle, because the Miers oppositionists are now arguing precisely the opposite of what they argued in the Roberts' nomination, that there should be an ideological litmus test for judges.
Nor would a GOP senator mindful of his or her political future be eager to vote against Miers. The opinion polls cited above indicate many conservatives are upset by and opposed to the Miers nomination. But they make it clear that a majority of Republicans/conservatives are not. The conservative intelligentsia in rebellion claim they speak for "the base." The opinion polls show they speak for only a sizable, but distinct minority, of that base. A Sen. Brownback or a Sen. Coburn doubtless would like to gain favor with the loud minority. But I suspect they will be unwilling to piss off the majority to do so.
The Miers nomination will rise or fall on the basis of her performance in the hearings. The opinion polls indicate most Americans will withhold judgment until those hearings. Jonah Goldberg, to his great credit, is going to tone down the rhetoric until then.
But I fear others, who know they have jumped the shark, will not because they cannot.
Reckless punditry is usually painless from the pundits. We lurch like drunken drivers from one erroneous conclusion to another (Afghanistan is a quagmire; Iraq is a quagmire)because there are no consequences to us for being wrong.
I think it will be different this time for the National Review crowd, in particular David Frum.
I think we can all agree that the worst outcome would be for Harriet Miers to be confirmed, and turn out to be Souter in drag.
But for Frum, et. al., the next worst outcome would be for Miers to perform well at the hearings, be confirmed for the Court, and then vote with Roberts, Scalia and Thomas on high profile issues.
Their credibility will be shot, their influence henceforth nil. Because of their borking of Miers and the president, the doors to the White House will be shut to them, and a majority of of the conservative base will never again hold them in high esteem.
The NRO crowd is fortunate that Bill Kristol, editor of the Weekly Standard, is in the same camp, so no competitive advantage/disadvantage will accrue if Miers performs well.
I think the winner will be Hugh Hewitt, who will rise in standing as those of the East Coast intelligentsia decline. And he will be the winner chiefly because he isn't looking out for himself.
If Miers is indeed the solid conservative the president says she is, the only way Frum et. al. avoid a trip to Purgatory is if nomination is withdrawn before the hearings. That isn't likely to happen. But I expect the borking to accelerate and become ever more strident.
UPDATE: I offer as Exhibit A in support of my thesis this response by Frum to this op-ed by Matt Scully in the New York Times today. The whine and cheese putsch is going to fail, and I think the whiners know it.
I dont think you want to lump "fair" and "poor" together..
The President is entitled to his appointments unless there is a reason...
So simply, for God's sake, let's just wait.
And the Senate is entitled to vote them down for any reason. The deference due the President ends at giving her the courtesy of a hearing and an up or down vote.
Annie Coulter has been doing a lot of that lately. Someone give that girl a couple of cheeseburgers and some calm.
Well, I read the article, and I don't see that he gives any REASONS to support Miers, except that the President is going to have his way and anyone who opposes him is going to be a loser.
I think he is saying that we oughta wait and see how she performs at the hearings....Kelley isn't asking anyone to support her now.
But for Frum, et. al., the next worst outcome would be for Miers to perform well at the hearings, be confirmed for the Court, and then vote with Roberts, Scalia and Thomas on high profile issues.
We've seen evidence of this same thinking right here on FR.
I can see the NRO crowd huddled in a conference room watching the hearings with their fingers crossed, saying "Please, please screw up, Harriet. If you don't we're finished"
Ahhh, but to make your argument you're conveniently ignoring GWB's history of appointing 260+ conservative judges AS HE PROMISED HE WOULD.
Miers won't be any different.
Presidents are not infallible. It is very possible he could have made a mistake here. I just wished he would have picked an originalist that has fought the battles and survived. Someone that can be verified by fact that he/she holds the conservative jurisprudence philosophy. Miers could be a conservative now with her boss but how will she be after Bush leaves office? Sure, anyone can change but it would be less likely for a battle hardened conservative jurist to do so. Someone that has verifiably thought through the issues by their writings and can be fairly certain they will be less likely to change than a fairly unknown nominee like Miers.
Here's an interesting take from an attourney on the nomination posted at Hewitt's website:
Mr. Hewitt:
I am a practicing commercial litigator who thus far supports the nominee (although I am reserving final judgment until the hearings). I am also flummoxed by the rush among the Washington DC Conservative Establishment both to condemn this nomination and to dictate to the President of the United States that he must chose a nominee from a list of "pre-approved" names of probably 20 or so acceptable jurists.
Just for fun, I compared Miers' qualifications with that of another potential nominee, Judge Edith Brown Clement on the 5th Circuit, and found them to be very similar -- almost eerily similar. Actually, I would say "Creepy Similar." Like, "These Two Could Be Twins" similar.
By way of background, Judge Clement was one of the judges that Peggy Noonan described in her WS Journal article as being an acceptable alternative to Miers. Others have dropped her name as well (according to Mona Charen's most recent article, David Frum also cited her as a good choice, but I could not confirm this independently). Also, Clement was leaked as the early pick for the seat that ultimately went to Roberts. Based on the fact that Miers lead the search, I am not surprised that, considering their similarities in age and experience, Clement rose to the top of the list. (There's a scoop there for someone to follow and report on!)
Consider the following:
1. Both Miers and Clement went to regional Southern schools -- well respected locally, but without real national profile. (Clement: B.A. Univ of Alabama '69 and J.D. Tulane Law '73; Miers B.S. SMU '67 and J.D. SMU Law '70). I know Miers was Law Review, honors, etc, and I assume Clement was as well.
2. Both clerked for federal district court judges in the South in the early '70s (trial court judges, not the typical federal appellate clerkships for SCOTUS nominees). Clement clerked for Judge Christenberry, E.D. La. from 1973-75; Miers clerked for Judge Estes, N.D. Tex. from 1970-72.
3. Both enjoyed long, successful careers in large Southern law firms. From 1975 to 1991, Clement practiced principally maritime litigation at Jones Walker -- a well respected firm of about 200 lawyers with offices throughout Louisiana (Baton Rouge, New Orleans) and in Texas (mainly Houston). From 1972 through 1996, Miers practiced commercial and business litigation with Locke Purnell -- again, a well respected firm of about 200 lawyers with offices throughout north Texas (Austin, Fort Worth, Dallas).
4. In the early to mid 1990s, both obtained some of the highest levels of success in their profession. In 1991, Bush I appointed Clement to a district court judge position in the E. D. La. (the same place she clerked almost 20 years prior). Miers did not receive a trial court appointment, but in 1992 was elected President of the State Bar of Texas (she was President of the Dallas State Bar in '84). In 1996, Miers' partners voted her president of Locke Purnell. Locke Purnell then merged with another large Texas firm (based in Houston), became Locke Liddell, and Miers was elected co-managing partner of this new firm by her new and old partners -- the firm was by then one of the largest in Texas. This type of prominent position gave Miers access to very important people, and Miers impressed the newly elected Governor and received some legal appointments that sound a little silly now (counsel to gubernatorial transition team, Lottery Commission chair, etc).
5. In 2001, Bush appointed Clement to a seat on the 5th Circuit Court of Appeals and she was confirmed immediately 99-0 (not considered too controversial). Miers, however, went with Bush to DC and moved from WH staff secretary to WH deputy chief of staff to WH counsel -- all assistant to pres/ policy positions. (Note: I am tired of people describing staff secretary as a "paper shuffling" position -- the position is currently held by Brett Kavanaugh, a lawyer who is a former Supreme Court clerk, a Ken Starr protégé, and a Presidential nominee for a seat on the DC Circuit Court of Appeals. The fact that Miers has been dismissed as a "secretary" is the one place where I would say sexism has entered this debate. Nobody has ever dismissed Kavanaugh as a secretary.)
Considering their similarities in age and background, it does not surprise me one bit that Clement rose to the top of Miers' list. In fact, it actually surprises me a lot that Clement did not get the first SCOTUS nod (according to a Wash Post story, Clement came pretty close, but she and Bush did not hit it off in the interview whereas Bush and Roberts did). But I think this demonstrates pretty clearly that Miers possesses almost identical qualifications as Clement. But Clement is being suggested as an alternative by the same people who are suggesting that Miers is unqualified?
In fact, I would go one better -- I have, in my law practice, encountered some federal trial judges in some rural areas who are pretty dense (I'm not speaking of Clement -- I don't know her at all). But I have never, ever met a managing partner of a firm the size of Locke Liddell that I did not consider to be real bright. DC folk may not see this, but I am convinced that Bush sees Miers as an extremely successful Texas lawyer who is comparable or even interchangeable experientially with someone like Clement. (Or, for that matter, other "big firm Texas types" like Priscilla Owens who received her J.D. from Baylor in '77 before spending 17 years at Andrews & Kurth or Gonzalez who spent 12 years at Vinson & Elkins (he did go to Harvard)).
I bet Bush is hearing about this bugaboo from others, turning to Laura and saying -- what's the fuss?
I think two things are going on here. First, some independent minded/ con law bloggers (like Glen Reynolds) really want a SCOTUS nominee who is a "public intellectual" -- Professor/Judge McConnell is probably the most mentioned and I really cannot think of another on the radar (Posner?). There aren't many. Second, most prominent conservative opinion writers -- people who spent their whole lives writing opinions in and out of government -- want a judge who has spent his or her whole life writing opinions in and out of government. Luttig, Wilkinson, Rogers Brown all fit this mold. There's a fair amount of "self identification as qualification" going on here.
Me, I am a practitioner and I want someone who has practiced for a long time, and who has achieved the highest level of success in practice. I would be fine with Clement or Owens, but the President decided Miers was his pick and I really cannot quibble. He makes judgment calls on jurisprudence and temperament (subject to consent of the Senate), not me -- if there's any place he's earned my trust, it's on this.
If Miers was denied confirmation in place of someone in the "public intellectual/ judge for life" mold it is quite possible that for the first time in this nation's history the Supreme Court of the United States would consist of no one who has either (a) tried a case or (b) spent a significant portion of his or her life not in academia, in government or on the bench (with the exception of the 10 year appellate practice that C.J. Roberts engaged in). I do not think that would be a good thing.
In any event, I enjoy your analysis and, again, feel free to use as much of this as you deem appropriate. I do think the comparison between the careers of Miers and Clement is an original take and is worth posting.
Regards,
--Bob
Jack Kelly has been one of the sane pontificators on this nomination and nails many points on the head:
- But most Americans are willing to wait to see how she performs at her confirmation hearings before making up their minds, pro or con.
- If Miers comes across as intelligent and knowledgeable, and a judicial conservative (that is, she believes it the duty of the courts to adjudicate, not legislate) then it is difficult to see how any Republican senators -- especially any of the Republican senators who voted for Ruth Bader Ginsburg or Stephen Breyer -- vote against her.
- Charlie Cook: "In spite of the dismay among many conservatives who expected President Bush to nominate a high-profile, bold conservative with a clear record on constitutional issues to the Supreme Court, Harriet Miers will be confirmed by the Senate to replace Sandra Day O'Connor. ... but assuming a passable performance and no skeletons in her closet, she's home free."
- Republican senators have to deal with this White House and president for another three years.
- Most Republican senators will be very reluctant to oppose such a personal choice of the president's, despite their misgivings about Miers' lack of record and modest qualifications. A few will, but most will see discretion as the better part of valor.
- A GOP senator could not credibly oppose her on the basis of principle, because the Miers oppositionists are now arguing precisely the opposite of what they argued in the Roberts' nomination, that there should be an ideological litmus test for judges.
- The opinion polls cited above indicate many conservatives are upset by and opposed to the Miers nomination. But they make it clear that a majority of Republicans/conservatives are not.
- The conservative intelligentsia in rebellion claim they speak for "the base." The opinion polls show they speak for only a sizable, but distinct minority, of that base. A Sen. Brownback or a Sen. Coburn doubtless would like to gain favor with the loud minority. But I suspect they will be unwilling to piss off the majority to do so.
- The Miers nomination will rise or fall on the basis of her performance in the hearings. The opinion polls indicate most Americans will withhold judgment until those hearings.
- But I fear others, who know they have jumped the shark, will not because they cannot.
Reckless punditry is usually painless from the pundits. We lurch like drunken drivers from one erroneous conclusion to another (Afghanistan is a quagmire; Iraq is a quagmire)because there are no consequences to us for being wrong.
I think it will be different this time for the National Review crowd, in particular David Frum.
- But for Frum, et. al., the next worst outcome would be for Miers to perform well at the hearings, be confirmed for the Court, and then vote with Roberts, Scalia and Thomas on high profile issues.
Their credibility will be shot, their influence henceforth nil. Because of their borking of Miers and the president, the doors to the White House will be shut to them, and a majority of of the conservative base will never again hold them in high esteem.
Excellent points!
I can't get the imagine of David Frum having an "Anderon Cooper/Hurricane Katrina" moment out of my head.
Image....image.
If Miers votes with Scalia and Thomas, the limb will collapse, and they will be seen for the bombthrowers they really are. The far-right "we-just-wanna-have-a-brawl" crowd will still listen to and read them, but that is such a small part of the conservative movement that these pundits will, in effect, be off the radar.
And they will deserve whatever happens to them.
"I can't get the imagine of David Frum having an "Anderon Cooper/Hurricane Katrina" moment out of my head."
Or maybe an Aaron Broussard moment.
Again, she may be as qualified as others but we still have no proof over what her judicial philosophy is. We just have "trust me" stuff. We would not be having this discussion if he had nominated a Luttig, Brown, Owen, McConnell, etc. People who have fought the battles and survived. These folks are battle hardened.
But hey, I hope I'm wrong and she turns out to be solid. But conservatives who have doubts over this nomination do have good reason to do so even if in the end she does turn out to be a fine pick. I really hope she will turn out to be fine.
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