Bush's unpleasant surprise

WASHINGTON -- Two questions were asked in conservative circles Monday when it was learned President Bush had nominated his lawyer, Harriet Miers, for the Supreme Court. Question No. 1: "Is this what we fought for?" Question No. 2: "What was he thinking?"

The conservative Republican base had tolerated George W. Bush's leftward lunges on education spending and prescription drug subsidies to re-elect him so that he could fill the Supreme Court with conservatives and send it rightward. But the White House counsel hardly looked like what they had expected.

Nothing could have more quickly deflated Republican spirits. The antidote to the Iraq-Katrina malaise was the spectacular confirmation performance by Chief Justice John G. Roberts Jr., and Republicans eagerly awaited Act Two: confirmation of a successor to social liberal Justice Sandra Day O'Connor. This was one issue where the wind was at Bush's back, not in his face. But he robbed his legions of spirit with the Miers nomination.

Miers hardly seems the true believer the Republican base was anticipating when the president's agents spread the word last week that his choice would please conservatives. In 1988, she was contributing to Al Gore's presidential campaign and the Democratic National Committee. She is listed as chairman of a 1998 American Bar Association committee that recommended legalization of gay adoptions and establishment of an International Criminal Court.

Presidential adviser Karl Rove, recognizing the peril here, was on the phone Monday morning assuring conservatives of Miers's intrepidity. The line from the White House was that Miers should not be compared with Justice David Souter, who was named to the court 15 years ago by the president's father and immediately turned left. While Souter was a stranger from New Hampshire to the elder Bush, it is claimed no president ever has known a court nominee as well as the younger Bush knows his fellow Texan. Skeptics are assured she is sound on abortion and other social issues.

Assuming those assurances are well founded, Miers's qualifications for the high court are still questioned. Members of Congress describe Miers as a nice person but hardly a constitutional scholar. Indeed, she might trip over questions that Roberts handled so deftly. People who have tried to engage her in serious conversation find her politely dull.

In singing Miers's praises, Bush agents contend her every thought is of the president's best interests, not her own. That may be a desirable profile for a White House counsel, but it hardly commends a Supreme Court justice who will be around long after George W. Bush is gone. By naming his longtime attorney, Bush risks the charge of cronyism. After the Michael Brown fiasco at FEMA (Federal Emergency Management Agency), Harriet Miers might seem the last person he would name to the Supreme Court.

Two weeks ago, Bush was seriously considering another Texas woman he likes and knows well. The nomination of Federal Circuit Judge Priscilla Owen would have been highly regarded in the conservative community. Owen was confirmed for the appellate bench only after the compromise forged by the Group of Fourteen, and Republican senators advised the White House they did not want to fight for her again so soon. But there is no rule that O'Connor must be replaced by a Texas woman who is the president's pal. Many well-qualified conservative men and women were passed over to name Miers.

The question recurs: "What was he thinking?" Bushologists figure the president was irked by repetitive demands that he satisfy the base with his Supreme Court appointments. He also was irked by the conservative veto of his Texas friend and Miers's predecessor at the White House, Attorney General Alberto Gonzales. So, Bush showed the critics by naming another close aide lacking Gonzales's track record to draw the ire of the party's right wing.

Immensely enjoying himself was Senate Democratic Leader Harry Reid, who let it be known to colleagues that he recommended Miers to the president. With Miers at his side, Reid praised her a little for contributing to Al Gore and a lot for being a "trial lawyer" -- no encomium in the GOP. With friends like Reid, Harriet Miers hardly needs enemies.

Emily, thank you for pinging me to Miss Marple's superb post. You know, I find it peculiar that all these stampeding hysterics throw casual mentions of the Constitution around as if it were some kind of proof of their bona fides. Yet when they are confronted with the actual text of that great document, itself, they ignore it.

I posted the following last night on another Miers-related thread. It is all the Constitution says about the judiciary. Unlike for members of Congress and the president, there are ZERO qualifications specified for members of the judiciary. The Founders knew what they were doing. They chose to leave the matter of who is qualified to sit on the Court to the discretion of the president, with the advice and consent of the senate.

Harriet Miers is not only qualified to be on the Court, her credentials are comparable to, if not greater than, many who have served on the Court before her.

By tradition (perhaps, like so many of our presidential traditions, because George Washington first did it that way) all nominees to the Supreme Court have been lawyers. Otherwise, they come from a wide range of backgrounds and professional experience.

My post from last night:

-------------------

The Constitution is completely silent as to qualifications for justices. This is not an oversight on the Founders' part. They did specify qualifications for members of Congress and the President. The Founders left the issue of judicial qualifications to the president's discretion, "by and with the advice and consent" of the senate.

The president proactively determines the qualifications of judicial nominees. The senate reactively votes to confirm or not to confirm.

Constitutionally speaking, a nominee for the Supreme Court doesn't even have to be a lawyer, or a citizen of the country, let alone be a graduate of any law school deemed by the Ann Coulters of the world to be acceptable.

The Constitution of the United States -- the articles, sections and clauses pertaining to the judiciary:
Article. II.
Section. 2.
Clause 2: He [the president] shall ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law...
Article. III.
Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.
Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Clause 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

To add to #183 just sent to you, this snobby notion that a nominee to the Supreme Court must have served on a lower court, and must have graduated from "top" law schools, and must be Constitutional scholars is nonsense. In fact, I think it's dangerous nonsense because, aside from the elitist aspects, it cements the politicization of the Court.

It's a fiction that's grown up very recently -- in fact, since 1967 when Thurgood Marshall was confirmed to the Court. Prior to then, there was always a mix of backgrounds and experiences on the Court, and there were even stretches when none of the sitting justices had served on a lower court.

In addition, these protracted political battles and pompous hearings we see over court nominees today were rare prior the late 1960's. Most nominees were confirmed within days, or at most, within two or three weeks of their nomination. It took 10 weeks -- 10 weeks!!! -- to confirm Roberts, and that's without much of a political battle.

As the Court became increasingly more politicized since 1967, it became common for presidents to reach into the federal appeals courts for nominees. Much easier to read the political tea leaves that way, and to appease political pressure groups.

Frankly, I think we were overdue for a correction to the over-politicization of the courts. On this point, alone, I think what President Bush has done in so strikingly breaking the recent mold is quite courageous. Will Harriet Miers vote consistently the way I hope she will? Perhaps. Perhaps not. I'm willing to keep an open mind until the hearings. If I don't like what I hear, I'll do the quintessential American thing and call my senators to speak my mind.

But leaving aside Miers' potential voting inclinations, I think the argument that reaching out beyond the the ivory halls of elite law schools and the appeals bench has a great deal of merit. I think the Miers nomination is refreshing on a number of levels, and I heartily applaud the President for his willingness to bring a touch of the common man and woman to the nation's highest Court.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.