More from David Frum on Miers nomination

NRO ^ | October 6, 2005 | David Frum

[ejdrapes]

OCT. 6, 2005: RESPONSES

Hugh Hewitt asks whether there isn't some personal animus or motive behind my comments on the Miers nomination. A number of readers have raised the same concern. I suppose it's a natural question. So let me answer for the record that my relations with Miers were always professional and correct when we worked together. I always thought she was a fine and decent person, and I have no personal animus or motive of any kind in this matter.

And though this is probably unnecessary let me add here also: I have been and remain a supporter of this administration and this president. For the past three years, I have been speaking and writing in defense of this administration's goals and this president's character, not just in this country but around the world, most recently in for example The Financial Times. This summer I even proposed to do a documentary about decision-making inside the Bush administration, in hope of refuting once and for all the unfair stereotypes about the way in which it does its work.

So if I don't dislike Miers and want the president to succeed, why am I speaking out? Aside from all the substantial reasons I have cited to date, I am speaking out because there are so many others who want to speak but cannot. I have spent many hours of the past three days listening to conservative jurists on this topic - people who have devoted their lives to fighting battles for constitutionalism, for tort reform, for color-blind justice, people who fought the good fight to get Bork, Scalia, Thomas, and now Roberts onto the high Court.

Their reaction to the nomination has been almost perfectly unanimous: Disappointment at best, dismay and anger at worst. Here's the tough truth, and it will become more and more important as the debate continues: There is scarcely a single knowledgeable legal conservative in Washington who supports this nomination. There are many who are prepared to accept, reluctantly, as the president's choice. Some still hope that maybe it won't turn out as bad as it looks. But ask them: "Well what if the president had consulted you on this choice," and the answer is almost always some version of: "I would have thought he was joking."

Why do so many fine conservative lawyers object to Miers? This oped by John Yoo gives a hint. John was one of the most brilliant lawyers in the Office of Legal Counsel in the Department of Justice in the first Bush term. He was a stalwart defender of the president's war powers - and he has taken his share of abuse in the press for fighting for his conservative principles.

Yoo's piece is very carefully phrased. Indeed, given the heavy hints that the administration has been throwing out recently, it must have taken strong courage for this man who is himself eminently qualified for an appellate judgeship, to have gone even as far as he did. But listen:

"[A]ccording to press reports, she did not win a reputation as a forceful conservative on issues such as the administration's position on stem cell research or affirmative action."

Yoo is referring here to the case of Grutter v. Bollinger, a challenge to the constitutionality of preferential treatment for minorities in education. Many in the administration wanted to take a strong stand in favor of color-blindness. In the end, the administration faltered and argued that racial preferences are okay, up to a point. It is hard to imagine a more central issue to modern legal conservatives. Where was Miers? On the wrong side.

Inside the White House, Miers was best known, not as a conservative, not as a legal thinker, but as a petty bureaucrat.

Read this article from a December 2004 article in the Legal Times about Miers' promotion to general counsel:

"Her critics say the problem goes beyond what Miers does or doesn't know about policy -- and right back to a near-obsession with detail and process.

"'There's a stalemate there,' says one person familiar with the chief of staff's office. 'The process can't move forward because you have to get every conceivable piece of background before you can move onto the next level. People are talking about a focus on process that is so intense it gets in the way of substance.'

"One former White House official familiar with both the counsel's office and Miers is more blunt.

"'She failed in Card's office for two reasons,' the official says. 'First, because she can't make a decision, and second, because she can't delegate, she can't let anything go. And having failed for those two reasons, they move her to be the counsel for the president, which requires exactly those two talents.'"

The Washington Post reports that as staff secretary she was notorious for personally correcting the punctuation in White House memos. This is sadly true - and it is also true that in 14 months of working with her on punctuation, I never heard her say anything substantive about any policy issue, with one exception. Yoo again:

"Another red flag for conservatives may be what is regarded as Miers's strongest credential: her work with the organized bar. Miers was elected president of the Texas bar and was a mover and shaker in the American Bar Association. Republicans have long criticized the ABA for politicizing the professional bar by taking positions on controversial social issues such as abortion and providing politically biased evaluations against Reagan-Bush judicial nominees. To be sure, Miers reportedly fought to allow the general membership to vote on the ABA's position supporting the right to abortion, a fact much trumpeted by Bush administration supporters yesterday. But she also apparently urged that the White House preserve the ABA's privileged role in reviewing the qualifications of judicial nominees."

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 61 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? 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 in any way at all?

If the answers to these questions is No, as it is, then you have to ask yourself: Why is a Republican president bypassing so many dozens of superb legal conservatives to choose Harriet Miers for the highest court in the land?

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. 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?

[safisoft]

I remember a lot of people were opposed to Gonzales because he had a paper trail showing that he was not conservative enough.

That is what the President must have thought as well. It was both. Sadly, the President was offended by many of speaking out against Gonzales, and made a point of speaking publicly about it - and then turned around and slid the knife in. Hmm, maybe it wasn't political stupidity, maybe it was political backstabbing.

[Shalom Israel]

And, besides, is that what is to be looked for in SC Justices these days...risk taking?

No, it's a matter of faith and works. Bush claims she has faith without works; we say, show us your faith by your works. It's all there in the epistle of James.

[q_an_a]

nobody writes this much crap unless they have a need to "look good" in the eyes of others. Frum writes one good line - which most of us have forgotten, then can't stop talking about "look at me" so he is asked to quit, because he writes speeeches - he is not the President. /rant off. when will the chattering class shut up?

[safisoft]

Her nomination was floated as a possibility and nobody thought it was a "joke."

Yeah right. You should have seen the faces of numerous media reporters when the AP broke the news. Stunned best describes it. That is the way MOST of us felt that have been paying attention.

[Pondman88]

"when will the chattering class shut up?"


ha....never.

[shrinkermd]

Come on Frum. Tell us how you wrote the "axis of evil speech" for our dum dum President. Then tell us how smart you are. See, you feel better already.

Only problem is we both like and respect the President and support his decisions on his past history of success. By the way, have you ever done anything except be a good student? I mean something real like practicing law, running an office or reading everything that goes to POTUS? I guess not. With your recent missive it is apparent you can get a regular gig at the NYT. Like Brooks.

Your only hazard is watch out for the Evangelicals! They are a bunch of cronies--you know, like the President and Meirs.

[steveegg]

Absolutely. Especially if we keep in mind that attacking the attackers is not the same thing as attacking an innocent woman.

Let's take a look at this thread up through this comment and go with the non-reasoned responses:

• #2 calls Frum a sourpuss.
• #3 features a "cronyism" theme cartoon
• #4 features, as a resonse to Frum's questioning of an apparent lack of distinguishing characteristics, a sarcastic piece continuing the "cronyism" theme
• #7 emphasises blind trust of President Bush
• #8 calls Frum a whiner and sourpuss (guess that's the word of the day) for anyone that dares question this appointment).
• #10 calls Frum an abortion-lover
• #12 pooh-poohes the idea that conservative lawyers actually assert conservative principles in their professional lives.

This is hardly Conservatism's or the GOP's finest hours.

[Pondman88]

David Frum has spoken--we must bow down to his superior intellect.

What an a-hole.

[buckeyeblogger]

crybaby.

I know that I'm new here and my opinion probably doesn't mean a hill of beans to anyone but... no..Frum is not a crybaby, he's right.

[Pondman88]

"This is hardly Conservatism's or the GOP's finest hours"

Quite right, but it reflects badly on both sides of this debate.

I support Miers, but I agree strongly with Trent Lott--lets hear what she is all about.

[SuziQ]

"'There's a stalemate there,' says one person familiar with the chief of staff's office. 'The process can't move forward because you have to get every conceivable piece of background before you can move onto the next level. People are talking about a focus on process that is so intense it gets in the way of substance.'
"One former White House official familiar with both the counsel's office and Miers is more blunt.

In citing this article that appeared in the " Legal Times", Frum does not give any information about the identity of either source. "One person familiar with the chief of staff's office"; WHOSE chief of staff's office? Is this person from the Clinton administration? It would give some context to their comments, don't you think? Ditto with the "former White House official familiar with both the counsel's office and with Miers." Could be anyone. May not even be someone in the Bush Administration, though the article would have the readers believe that it is.

I'm sure Frum is hearing a LOT from people inside the beltway who don't think Ms. Miers can handle the Supreme Court, or who had their own favorites in mind for the position. That doesn't make her any less qualified or suitable for the position, it's just that the 'inside the beltway echo-chamber' has deemed her unfit, and will continue to say so.

[Pondman88]

welcome aboard.

[syriacus]

Stunned best describes it. That is the way MOST of us felt that have been paying attention.

I was stunned.

I had a hard time accepting Bush's choice of a nominee who wouldn't raise the liberal's blood pressure.

I wanted Miguel Estrada to be nominated. Failing that, I wanted someone else who would be a noisily originalist "contendah."

Estrada deserved a hearing and a vote....so does Miers, now that she has been nominated by the President.

[sinkspur]

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 managed 150 disasters including four simultaneous hurricane relief efforts in Florida last year before he ran into a totally broken Louisiana emergency management system.

He was ground up in racial politics, not his response to Katrina.

[Dane]

This is hardly Conservatism's or the GOP's finest hours.

Exactly, tell that to the DC beltway right wing elitists.

[SuziQ]

Ms. Miers argued AGAINST having the ABA come out with a pro-abortion statement. She believed, rightly, that the professional lawyers association should be NEUTRAL on such a contentious subject. Unfortunately, the ABA ignored her and those who supported her, and decided to take the pro-abortion side of the issue.

[syriacus]

"'She failed in Card's office for two reasons,' the official says. 'First, because she can't make a decision, and second, because she can't delegate, she can't let anything go. '"

I don't want a Supreme Court Justice who makes snap decisions.

I want a Justice who looks at the leftist arguments with something other than Ruth Bader Ginsburg's blind acceptance.

[buckeyeblogger]

I'm definitely am not trying to pick a fight but I feel I need to say something. These charges of elitism directed at Frum and others is getting out of control. It's almost as big of a buzzword as "gravitas" was during the summer of 2000.

It just so happens, I am from a southern state, now reside in Ohio...non-high school graduate (I have a G.ood E.nough D.iploma) and I also just happen to be a lifelong conservative. I deeply wanted Janice Rogers Brown for this pick but I would have settled for any number of others. When I (we) heard the name Harriet Miers I imagine a great number of us were thinking to ourselves: "whoooooooooooooooooooooooooooo?"

I don't think it's elitism to want the best of the best for such a coveted spot in our government.

[steveegg]

Oppose what? A conservative evangelical christian from Texas?

Didn't the Peanut Farmer profess to be a conservative evangelical Christian?

Seriously, while being a conservative evangelical Christian is a strong indicator in her favor, donating to the Democratic National Committee in 1988 is a strong one against her. A complete lack of writings on Constitutional law or judicial philosophy leaves the two main qualifications a complete blank slate. The rest of what little is known about her leaves a confused set of indicators.

Is it wrong to ask for something solid? Is it wrong, not a week after Chief Justice Roberts was confirmed 78-22, to have had a nominee without a thin, confused record?