The Case for Miers (when things look blurry)

President Aristotle blog | 10/6/2005 | Grenfell Hunt

[KMAJ2]

Thursday, October 06, 2005

The Case for Miers (when things look blurry)

Fear factor

As with pretty much everyone on the center-right, my initial reaction to the Miers appointment was anger, disbelief, and opposition. I feared, and many feared, that Miers was another Souter--and without the credentials to match. But I decided to do some research on Miers before I vented in my blog. After looking at the evidence, I came to two conclusions: 1) she's qualified; 2) she's very conservative.

1. Why W picked Miers

The pick of Miers was very unexpected: Why Miers? But in retrospect it's not very mysterious. Every president wants for SCOTUS justices that they agree with nearly 100% of the time. After many years of working together, W knows that Miers agrees with him on nearly everything. So when Senator Reid suggested that W think about putting Miers on the court, W had every reason to do so.

Did Reid hoodwink W? Not likely. W has known Miers for years and well; Reid knows her only slightly. The Dems effectively told W that they would confirm a justice that W knows is in near-total agreement with him. It's not surprising that he took it. From W's perspective, he had no reason to start a fight with the Senate when Democrats indicated they would surrender nearly 100% of what he wanted without a fight.

From W's perspective: you don't need the nuclear option when the other guy waves the white flag.

But is W right about Miers?

2. Why Miers is not another Souter.

Souter, Kennedy, and O'Connor all had one thing in common--they were unknown personally to the president who appointed them. Reagan and Bush 41 trusted the judgment of conservative legal experts who thought they would be good conservatives--these experts turned out to be mistaken. W is not trusting conservative legal experts on this pick but his own personal work with Miers for a decade. W might be wrong--but Miers is here the anti-Souter, a candidate whose work the president knows quite thoroughly; something which contrasts with Souter, et al.

3. Why we shouldn't trust W.

Not that W's judgment is untrustworthy. Rather, he shouldn't be trusted for the simple reason that there's no need. Miers is not an unknown. She has a long paper-trail, much longer than people realize. The evidence is quite clear and quite conservative. For example...

4. Miers' paper trail: abortion

4.1: In 1989, she contributed $150 to Texans for Life. 95% of those who contribute to pro-life groups seek to reverse Roe v. Wade; there's no reason to think Miers is an exception.

4.2: When she ran for Dallas City Council, she openly identified herself as pro-life. Her campaign manager has since called her "on the extreme end of the anti-choice movement".

4.3: She became head of the Texas Bar in 1992-93, and used her position to lobby against the ABA's pro-abortion positions. She continued this lobbying late into the decade. There is no reason to doubt that this was powerfully rooted in her own pro-life political views.

4.4: She gave money to Bentsen and Gore in 1987/88 when she was still a conservative Democrat. Since 1990 she has made 13-14 political donations, and these donations have gone ONLY to 100% pro-life candidates.

4.5: In 2000 she gave money to Donald Stenberg, the Nebraska attorney general who defended Nebraska's partial birth abortion law before the Supreme Court. As one blogger put it: “I didn’t know she had given to Sternberg [sic]. The only people who I know from around here who did that were the real activists.” Exactly.

4.6: Summary: this is the most extensive pro-life record of any nominee to the Supreme Court in recent years. Even Scalia and Thomas, who both rejected Roe, never had a record like that. Roberts certainly never did. Her on-record pro-life convictions are clear and undeniable.

Is this a guarantee that Miers will vote to overturn Roe? No, there can be no guarantees on that. It is highly probable however. And it is close to a guarantee that she will vote to reverse Stenberg (a 5-4 decision with O'Connor in the majority).

5. Miers' paper trail: gun control.

Pattrick Ruffinini notes that Miers strongly defended the Second Amendment in the aftermath of some senseless shootings in Texas: Miers declared: "The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs."

Adds David Kopel, "As far as I know, you have to go back to Louis Brandeis to find a Supreme Court nominee whose pre-nomination writing extolled the right of armed self-defense."

6. The Miers' paper trail: homosexuality.

From NRO: WASHINGTON — Supreme Court nominee Harriet Miers went on record favoring equal civil rights for gays when she ran for Dallas City Council, and she said the city had a responsibility to pay for AIDS education and patient services.

But Miers opposed repeal of the Texas sodomy statute _ a law later overturned by the court on which she will sit if confirmed _ in a survey she filled out for a gay-rights group during her successful 1989 campaign.

O'Connor, of course, struck down the Texas sodomy law as Supreme Court justice. Miers was one of the supporters of that law. It is not likely that Miers would have supported it if she agreed with O'Connor that it was contrary to the constitution.

7. Miers' professional qualifications:

Miers' credentials certainly don't compare well with John Roberts. But that's true of pretty much everybody; Roberts was an exceptional nominee.

It's also true that Miers has no previous judicial experience. But that's true of 41 of the last 109 Supreme Court justices. What these candidates had was exceptional success as legal professionals. No one doubts that Miers has had an outstanding career in private practice: a trailblazing career in which she became the first woman hired at her firm, the first managing partner of a major firm in Texas, and the first head of the Texas bar. Her colleagues have described her as "hardworking" and "brilliant."

8. Miers' academic credentials:

Some have been concerned that Miers did not graduate from a front-rank university or law school. But lots of extremely talented individuals don't come from the right schools. And this includes most of the women on the conservative short lists for the O'Connor slot. We might contrast Maura Corrigan of the Michigan Supreme Court--a hot candidate for many conservatives. Corrigan graduated from Marygrove, got her JD from UDetroit, and clerked for a state appellate judge. Miers graduated from SMU (in math!), did an SMU JD, and clerked for a federal judge. Miers' credentials are certainly not inferior to Corrigan's. Miers' success is precisely that she rose to the top of the Texas Bar because she had the skill, talent, and drive to outperform hundreds of men with better academic credentials than she had.

9. The question of legal philosophy.

The stronghold of conservative lawyers is the Federalist Society--of which Miers is not a member, but many conservative lawyers aren't; Hugh Hewitt, for example. Miers has been a speaker before the Federalist Society, and has the strong support of Federalist Society executive director Leonard Leo:

He spoke as one who has known and worked with her for well over a decade, who has played host to her when she has been a Federalist Society speaker, and -- perhaps most significant -- who joined her in a battle to get the American Bar Association to rescind its resolution endorsing Roe v. Wade , the decision establishing a right to abortion.

The first thing Leo said was that Miers's statement accepting the nomination from Bush was significant to him. "It is the responsibility of every generation to be true to the Founders' vision of the proper role of courts in our society . . . and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution," she said. "When she talked about 'the Founders' vision' and used the word 'strictly,' " Leo said, "I thought, 'Robert Bork,' " Ronald Reagan's Supreme Court pick, who was rejected by the Senate after a bitter fight. "She didn't have to go there. She could simply have said, 'Judges should not legislate from the bench.' But she chose those words."

I asked if he was surprised that she did -- or whether it was consistent with what he knew of her judicial philosophy. He replied: "I'm not surprised that's what she believes. I'm surprised her handlers let her say it."

Conclusion:

This is a very conservative nominee, and a very talented one. She was a woman in what in the 1970s was a man's profession in Texas, and immediately cut her way to the top--outperforming numerous overcredentialed Ivy Leaguers in the process. She used her position as head of the Texas Bar to fight for conservative causes, and holds a Robert Bork-like legal philosophy. She has regularly impressed nearly everyone who's worked with her. W was looking for a reliable conservative to place on the Court, and her record stongly supports both her conservativism and her talent.

Postscript: the view from Texas. I highly recommend the posts from Beldar, himself a Texas lawyer; specifically on the question of her qualifications.

http://presidentaristotle.blogspot.com/2005/10/case-for-miers-when-things-look-blurry.html

[KMAJ2]

I came across this blog op ed, and it is a well reasoned piece. This is for those with an open mind, the closed minded will not be swayed by anything. Though still waiting to see how she handles herself in the confirmation hearings, I am willing to give the benefit of the doubt. I do hope she has a thick skin, the attacks of some on the far right have been abhorrent, taking up the tactics of the fringe left to smear her because she is not who they wanted. Would such embittered vitriol targeted at her by some conservatives determined to eat their own make her rethink her positions ? I hope not, but they will have themselves to thank if she does. Meanwhile, the democrats sit back and laugh as they let the conservatives do their work for them, divide and conquer. This is a case of political stupidity due to ideological entrenchment, the old "if I can't have my way, I will take my bat and ball and go home." I have to shake my head at the immaturity of these tactics. If she blows up at the hearings, or something monumental is exposed, in the process, then, by all means, she should be defeated. Anything else is simply whining about not getting your way.

[Artemis Webb]

Great Post!
Thank you.

[oblomov]

None of the deleterious outcomes you mention, such as division among conservatives, would have happened had someone more qualified been nominated.

[justche]

You've got to be joking, a fair - well thought out - well documented piece - it'll still get ripped to shreds by a few vocal folks, if it hasn't by the time my post actually shows.

While I disagree with Bush on plenty of things - he is who I voted for President, and I will support him on his nominee.

Thanks for the post.

[oblomov]

The only efforts to define Miers' philosophy have been on the issues of abortion, homosexual rights, and gun control.

What about the all-important issues of economic regulation, property rights, and states rights? I've seen nothing that gives me any comfort.

[saveliberty]

I enjoy reading President Aristotle --

Here are a couple more links that are great reads

http://presidentaristotle.blogspot.com/2005/10/why-right-judges-go-wrong-note-on.html

http://presidentaristotle.blogspot.com/2005/10/barking-dogs-of-texas.html

Also, Hugh Hewitt's interview with renowned law professor Lino Graglia, who co-wrote the Bork book and said that he was surprised by Bork's rejection, given what Bork had just written

http://hughhewitt.com/archives/2005/10/09-week/index.php#a000340


Also an interview with John Fund. He points out that a big issue was bad communication with the WH and bypassing the formal vetting process.

Fund indicates that he does think that she will be confirmed and he also concedes the point that no beltway conservative has ever gone wobbly on SCOTUS

http://www.radioblogger.com/#001056


Of course, Beldar is great. Here are two
http://beldar.blogs.com/beldarblog/2005/10/a_westlaw_romp_.html

http://beldar.blogs.com/beldarblog/2005/10/miers_versus_ro.html

[DJ MacWoW]

None of the deleterious outcomes you mention, such as division among conservatives, would have happened had someone more qualified been nominated.

Why pit Senate Yorkies against Pitbulls and Rinos? Do you ACTUALLY think they'd win?

[Racehorse]

. . .had someone more qualified been nominated.

By now, everyone understands there is only one qualification:  nomination.

Even the advice and consent of the Senate can be circumvented by a recess appointment.

The rest is a hodge-podge of personal and group preference.

Me?  I'm still hoping the next opening goes to Bork.  That'll get the rebel rousers their fight!

[traderrob6]

I'm a bit concerned about her affirmayive action stance.

[Racehorse]

What about the all-important issues of economic regulation, property rights, and states rights?

Amen.

[oblomov]

I don't know if either of you remember the Clarecne Thomas confirmation hearings. They were enthralling TV viewing. The Democratic Senate did everything they could, stooping to wild personal attacks, but still could not stop him.

Why couldn't GWB have nominated JRB, Emilio GArza, or Priscilla Owen? Each of them would have galvanized conservative support, and would have put Democrats on the defensive. And they nuclear option would be worth it for any of them.

[HiTech RedNeck]

Well with the regulation or banning of abortion there's a hugh and series state right that she's ready to hand back on a platter.

[thoughtomator]

And the "rights" of illegal aliens.

[Bush 100 Percent]

How do you know? The way we are examining these people under the microscope, before they can even talk for themselves ....

I saw people with lots of different views on each of the "favored" nominees. In their backrounds they each were bound not to have ruled, written, etc. 100% the way some conservative group or another thought they should.

[HiTech RedNeck]

And they nuclear option would be worth it for any of them.

Yeh, only to see about 6 or 7 RINOs fall off the vote itself.

[Artemis Webb]

It is interesting that you bring up "affirmative action". Yesterday I saw a Freeper make the comment that Miers had been behind the administrations position on Grutter v. Bollinger which was the famous Michigan case that the administration came down on the wrong side of.

Apparently John Yoo and David Frum have both said she was is pro-affirmative action but have never produced documentation, let alone a specific anecdote to back up that statement.

On the issue of affirmative action I simply don't know. I do know I don't trust Frum's motives. I don't know anything about John Yoo.

I know also that the President has consistently appointed conservatives to the Federal bench and that the person who was his go to for all of those nominations was Harriet Miers.

[Dane]

Pop, pop, goes the heads of the Meirs/Bush haters.

[Harmless Teddy Bear]

Why couldn't GWB have nominated JRB, Emilio GArza, or Priscilla Owen?

Well Priscilla Owen asked not to be nominated and the President is only allowed nominate people who say yes.

[DJ MacWoW]

The Democratic Senate did everything they could, stooping to wild personal attacks, but still could not stop him.

Why couldn't GWB have nominated JRB, Emilio GArza, or Priscilla Owen?

I read Owens and Brown said "no thanks". The NY Slimes was going to investigate the Roberts childrens adoption until FR went into attack mode. What makes you think that the candidates WANT to go through that kind of he!!? If that's the case, the Prez can't tell us they all said "no".

[oblomov]

The concept of chareacter is this: one's actions speak for the person. Having a person "speak for himself" is redundant, and potentially misleading. It is better to examine the nominee by looking at their past decisions, causes, and statements. Whatever is said at the confirmation hearings will be in contemplation of the position, and should be given less weight than past actions.

Would you hire a person whose resume is a mess, but who makes comforting assurances in an interview? I wouldn't.