Many Don't Grasp Strategy of Miers Nomination

President Bush is a politician trained in strategic thinking at Harvard Business School, and schooled in tactics by experience and advice, including the experience and advice of his father, whose most lasting political mistake was the nomination of David Souter. The nomination of Harriet Miers to the Supreme Court shows that he has learned his lessons well. Regrettably, a large contingent of conservative commentators does not yet grasp the strategy and tactics at work in this excellent nomination.

There is a doom-and-gloom element on the Right which is just waiting to be betrayed, convinced that their hardy band of true believers will lose by treachery those victories to which justice entitles them. They are stuck in the decades-long tragic phase of conservative politics, when country club Republicans inevitably sold out the faith in order to gain acceptability in the Beltway media and social circuit. Many on the right already are upset with the President already over his deficit spending, and his continued attempts to elevate the tone of politics in Washington in the face of ongoing verbal abuse by Democrats and their media allies. They misinterpret his missing verbal combativeness as weakness.

There is also a palpable hunger for a struggle to the death with hated and verbally facile liberals like Senator Chuck Schumer. Having seen that a brilliant conservative legal thinker with impeccable elite credentials can humble the most officious voices of the Judiciary Committee, they deamnd a replay. Thus we hear conservatives sniffing that a Southern Methodist University legal education is just too non-Ivy League, adopting a characteristic trope of blue state elitists. We hear conservatives bemoaning a lack of judicial experience, and not a single law review article in the last decade as evidence of a second rate mind.

These critics are playing the Democrats’ game. The GOP is not the party which idolizes Ivy League acceptability as the criterion of intellectual and mental fitness. Nor does the Supreme Court ideally consist of the nine greatest legal scholars of an era. Like any small group, it is better off being able to draw on abilities of more than one type of personality. The Houston lawyer who blogs under the name of Beldar wisely points out that practicing high level law in the real world and rising to co-managing partner of a major law firm not only demonstrates a proficient mind, it provides a necessary and valuable perspective for a Supreme Court Justice, one which has sorely been lacking.

Ms. Miers has actually managed a business, a substantial one with hundreds of employees, and has had to meet a payroll and conform to tax, affirmative action, and other regulatory demands of the state. She has also been highly active in a White House during wartime, when national security considerations have been a matter of life and death. When the Supreme Court deliberates in private, I think most conservatives would agree that having such a perspective at hand is a good thing, not a bad thing.

Other conservatives are dismayed that the President is playing politics (!), rather than simply choosing the “best” candidate. But the President understands that confirmation is nothing but a political game, ever since Robert Bork, truly one of the finest legal minds of his era, was demonized and defeated.

The President’s smashing victory in obtaining 78 votes for the confirmation of John Roberts did not confirm these conservative critics in their understanding of the President’s formidable abilities as a nominator of Justices. Au contraire, this taste of Democrat defeat whetted their blood lust for confirmation hearing combat between the likes of a Michael Luttig or a Janice Rogers Brown and the Judiciary Committee Democrats. Possibly their own experience of debating emotive liberals over-identifies them with verbal combat as political effectiveness.

In part, I think these conservatives have unwittingly adopted the Democrats’ playbook, seeing bombast and ‘gotcha’ verbal games as the essence of political combat. Victory for them is seeing the enemy bloodied and humiliated. They mistake the momentary thrill of triumph in combat, however evanescent, for lasting victory where it counts: a Supreme Court comprised of Justices who will assemble majorities for decisions reflecting the original intent of the Founders.

Rather than extend any benefit of the doubt to the President’s White House lawyer and counselor, some take her lack of a paper trail and a history of vocal judicial conservatism as a sign that she may be an incipient Souter. They implicitly believe that the President is not adhering to his promise of nominating Justices in the mold of Scalia and Thomas. The obvious differences between Souter, a man personally unknown to Bush 41, and Miers, a woman who has known Bush 43 for decades, and who has served as his close daily advisor for years, are so striking as to make this level of distrust rather startling. Having seen the Souter debacle unfold before his very eyes, the President is the last man on earth to recapitulate it.

He anticipates and is defusing the extremely well-financed opposition which Democrat interest groups will use against any nominee. Yes, he is playing politics by nominating a female. A defeated nominee does him and the future of American jurisprudence no favors. By presenting a female nominee, he kicks a leg out from under the stool on which the feminist left sits. Not just a female, but a career woman, one who has not raised children, not married a male, and has a number of “firsts” to her credit as a pioneer of women's achievement in Texas law. Let the feminists try to demonize her.

If they do so, almost inevitably, they will seize on her religious beliefs and practice. Some on the left will not be able to restrain their scorn for an evangelical Christian Sunday school teacher from Dallas, and this will hurt them. They will impose a religious test against a member of a group accounting of a third of the voting base. Speculation on her being a lesbian has already started. "She sure seems like a big ol' Texas lesbian to me," as one of the Kos Kidz put it.

The President must also prepare himself for a possible third nominee to the Court. With the oldest Justice 85 years old, and the vagaries of mortality for all of us being what they are, it is quite possible that a third (or even fourth) opportunity to staff the Court might come into play. Defusing, demoralizing and discrediting the reflexive opposition groups in the Democrats’ base is an important goal for the President, and for his possible Republican successors in office.

Then there is the small matter of actually influencing Supreme Court decision-making.

This president understands small group dynamics in a way that few if any of his predecessors ever have. Perhaps this is because he was educated at Harvard Business School in a legendary course then-called Human Behavior in Organizations. The Olympian Cass Gilbert-designed temple/courtroom/offices of the Supreme Court obscure the fact that it is a small group, subject to very human considerations in its operations. Switching two out of nine members in a small group has the potential to entirely alter the way it operates. Because so much of managerial work consists of getting groups of people to work effectively, Harvard Business School lavishes an extraordinary amount of attention on the subject.

One of the lessons the President learned at Harvard was the way in which members of small groups assume different roles in their operation, each of which separate roles can influence the overall function. The new Chief Justice is a man of unquestioned brilliance, as well as cordial disposition. He will be able to lead the other Justices through his intellect and knowledge of the law. Having ensured that the Court’s formal leader meets the traditional and obvious qualities of a Justice, and is a man who indeed embodies the norms all Justices feel they must follow, there is room for attending to other important roles in group process.

According to a source in her Dallas church quoted by Marvin Olasky, Harriet Miers is someone who

As the court’s new junior member, the 60 year old lady Harriet Miers will finally give a break to Stephen Breyer, who has been relegated to closing and opening the door of the conference room, and fetching beverages for his more senior Justices. Her ability to do this type of work with no resentment, no discomfort, and no regrets will at the least endear her to the others. It will also confirm her as the person who cheerfully keeps the group on an even keel, more comfortable than otherwise might be the case with a level of emotional solidarity.

But there is much more to it than group solidarity, important though that ineffable spiritual qualty may be. Ms. Miers embodies the work ethic as few married people ever could. She reportedly often shows up for work at the White House at 5 AM, and doesn’t leave until 9 or 10 PM. I have no doubt that she will continue her extraordinary dedication to work once confirmed to the Court. She will not only win the admiration of those Justices who work shorter hours, she will undoubtedly be appreciated by the law clerks who endure similar hours, working on the research and writing for the Justices. These same law clerks interact with their bosses in private, and their influence intellectual and emotional may be more profound than some Justices might like to admit.

The members of the Supreme Court all see themselves as serving the public and the law to the best of their abilities. Their self-regard depends on their belief in the righteousness and fairness of their deliberations. They must listen to the arguments of the other Justices. But their susceptibility to viewpoints they had not yet considered is matter of both an intellectual and emotional character. Open-mindedness uusally requires an unfreezing of deeply and emotionally-held convictions.

Having proven herself capable of charming the likes of Harry Reid, leader of the Senate Democrats, is there much room for doubt that Harriet Miers is capable of opening up opponents emotionally to hear and actually consider as potentially worthwhile the views of those they might presume to be their enemies?

George Bush has already succeeded in having confirmed a spectacularly-qualified intellectual leader of the Court in Chief Justice Roberts. If conservatives don’t sabotage his choice, Harriet Miers could make an enormous contribution toward building Court majorities for interpretations of the Constitution faithful to the actual wording of the document.

That 55-45 number is good for getting tax cuts and committee chairmanships. However, let me give you this line of thinking:

We have three senators who will not vote for any pro-life candidate if there is a signiicant paper trail? Snowe, Chaffee, and Collins. If you had Brown as the nominee, your numbers would drop to 52-48.

Now, subtract the two Ohio cowards, Voinovish and DeWine. That leaves you at 50-50.

Now factor in the wild cards and backstabbers...Graham, Lugar, McCain, Hagel. You could be down to 46-54.

Why you think that 55 nuber automatically guarantees a win I don't know. Surely you can see the difficulties the President faces with the Senate.

If she does, you'll be right. I've got no problem with that. Just out of curiosity, do you happen to know how many justices serve to that age?

And please don't put words in my mouth. It's quite possible that he appointed a fine conservative. Unfortunately, his selection shows that we'll need to wait to find out. I'd prefer not to wait - I'd like the record on the nominee to reflect that we're getting what we voted for.

The "Minimum threshold for acceptibility" is A CLEAR AND UNAMBIGUOUS RECORD AS A STRICT CONSTRUCTIONIST.

I, and very many people like me, volunteered for the Republican Party and worked very hard to insure Bush's reelection, motivated principally by the tacit understanding that he would nominate ONLY strict constructionists to the court. He has not done so. It was a severe political (and historic) miscalculation on his part.

It is a fact.... many Conservatives would rather fight and lose than outsmart and win.

Bush knows something that many conservatives will never learn. My father puts it this way: "You can't win a pi*s*in' contest with a polecat." Bush knows that there is nothing to be gained by engaging Patrick Leahy and Ted Kennedy in ideological debate. He wants to sidestep them, not score points on them.

What I find strange is that the same conservatives who have been in arms over the President's right to appoint judges for five years now believe that the Republic is threatened because the President has appointed a justice whom he knows extremely well, but who is not well known to Ann Coulter and the pundits at the National Review.

The other strange thing is the offence many people take at the idea of trusting Bush on this. If there is any issue on which Bush has earned trust, it's judicial appointments. He has up till now not faltered one single time, and yet these sore-toe conservatives will not give him any slightest benefit of the doubt. I really do think that this kind of nastiness will persuade many intelligent conservatives not to go into politics -- who needs this kind of vituperation from both the Left and the Right? And it's not just Bush -- people with long memories know that the same kind of people screamed the same kind of venom at Reagan. It's just gotten more hysterical, like everything else in our politics.

This is one of the most insightful statements made by the author. He probably arrived at this conclusion after two days of using Free Republic as his Petri dish.

Meirs is an excellent pick! I am certain that she is of the same cloth as Justice Thomas and Scalia. We need to get behind this woman and support her full tilt!

Agree. I think it will be a real battle with the Dems for her. If she is approved, it will be with very few Dem votes.

What do you fear??>>

Nothing.Period.

loosing a nomination or changing the supreme court for a generation..I fear the latter. >>

Bush is changing the court for a generation,you and others here cant see it. She has been at the front of Bush judicial nominees, Owens, Luttig, Brown SHE chose them for Bush, and yet when she comes to the plate you are the one crying that she isnt any of the ones she had already placed. Kind of ironic.

Why do some GOP koolaid drinkers fear a real display of the values we conservatives have.??>>

Not all of the GOP have the same values as everybody else, whats that word? Oh yeah Big Tent.

I personally would rather win the war of the courts with little warfare or much, makes no difference to me either way we will win the war with or without you. Not every fight needs to be a knock down drag out.

Many would say that the (GOP lyte) support BUSH no matter what crowd are really just Olympia Snow type RINO's who have no backbone for fighting for even the Supreme court make up.
>>>

Not many, just you so far. I am not a Olympia Snow, I am pro-life, pro-2nd amendment pro-consitution, but I also have this abilityt to remain independent of where my heart lies and see the greater political picture here. The type of fight you want has just the amount of power to set us back as a movement 20 years as to set us forward, its a greater gamble then trusting one man who has given us many great conservative judges through out his two terms, why would he all of a sudden fail us now?

"Why you think that 55 nuber automatically guarantees a win I don't know. Surely you can see the difficulties the President faces with the Senate."

I only see 3Republicans as for sure NO Votes...difficulty, possibly. A sure defeat? No. This was the big enchilada, and Bush wasn't up for the fight. It makes me think he is not genuine in his alleged beliefs.

We won't be getting many more wide margins like this in the near future...we will likely lose seats in the midterms...the war is not going well from a PR standpoint, /Bush's ratings are barely in the low 40s and how he will lose a significant number of his base.

There will be a price for this vote.

YOU SAID..."You state that as fact, when it nothing but pure and utter conjecture. Its quite possible the head on fight you want would end up as an early grave digger for the GOP and conservatives."

Thats the politics of pessimism, cynicism, and defeat...this is an example of the REAL "doom and gloom" philosophy at work in the republican party today.

Rush over the years has apparently taught nothing to many people in this crowd....you win by fighting for your principles on the field of ideas....IF they are the RIGHT principles and ideas to begin with. In the process you educate, and build consensus. You MUST do this to overcome the bias of the MSM.

Conservatism is the right principle...so it is worth fighting for.

You dont lead by stealth.

Isn't it amazing that you people spouting off about how Bush did us in, have never met, spoken with, or worked with ANY of the candidates you espouse OR Ms. Miers. You elected a man that you trusted to choose a conservative justice. He says to you that this woman is. And you can't stop bitching that he didn't pick who you wanted. You can complain, it's your right, but there was no kick in the testicle - you have no idea who this woman is and talking about testicles, I think you may have prematurely ej....., never mind.

We elected Bush to apoint conservative justices. Ive seen many of you around here spouting conservative ideals for less than two year and I am sure that if I spent everyday reading and conversing with you I would know how you thought and what was your true beliefs. Yet Bush has worked with this lady face to face for how many years, and you on't trust that he knows this person's true beliefs. You're insane and you just want a fight and you would rather lose a name you know that confirm an quality conservative Justice. You'll give Bush your vote, but you won't give hime your trust. Pathetic.

Very interesting article. More insight into Harriet Miers' background. Now I know more about her than all of the other candidates that Pres Bush didn't choose to nominate for the SC job. I keep hearing that there are legions of superior candidates who were overlooked but I never heard of most of them before one group or another began touting their name. I trust Pres Bush to have done his usual best to deliver what he promised with his nomination of Harriet Miers. He is not the one playing games. He has taken his responsibility much more seriously than the professional conservatives who make a good living out of public hyperventilating designed to enhance the marketing of themselves. Pres Bush and his pick of Miers is their latest money ticket. I would love to see Harriet Miers debate any one of them, on any level or subject they might choose. No doubt at all Miers would skunk them all.

Her total lack of any judicial experience is a killer. She has never taken the responsibility of making decisions of massive import to people's lives. It's like a black belt who has never actually been in a fight thinking he can be a SEAL.

You've got it backwards. Judges are the referees, the umpires. The lawyers are the players. Or using your metaphor, the lawyers are the SEALS and the judges are the paper pushing bureaucrats. A lifelong judge would be crushed by the realities and pressure of actual law practice. A lifelong lawyer could easily transition into a judgeship. (Why do you think so many successful lawyers go for a judicial seat as they get older? It's the perfect step between the rough and tumble of practice and the boredom of retirement.)

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