Posted on 10/11/2005 2:29:37 PM PDT by 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
Thanks for the post.
Even if Brown and Owens said "no", there is a deep conservative bench on the federal judiciary to choose from.
"Why pit Senate Yorkies against Pitbulls and Rinos?"
Don't have much faith in your own party, do you? Why should I?
Response to 1 – The assumption is made that President Bush knows Harriet Miers through his relationship with her given she is his “personal” attorney. I disagree; however, given the impossibility that he could know her views when even her own brother said he didn’t know and to conjecture that her views would be unchanged for the next 20 years. Furthermore, and more importantly, her views are unknown to the American people. Conservatives should not consent to the nomination of people personally involved with the President (cronyism), nor to unknown jurists that could easily become liberal votes (as Souter and O’Connor have proven), and we should instead look to veteran jurists with known tested views that conform absolutely to the judicial philosophy of Originalism.
The second part of the argument is more confusing and merely boils down to pure conjecture. Harry Reid’s endorsement of this nominee is very troubling and his motives shouldn’t be excused as concession. Obviously, he must see a reliable “moderate,” another O’Connor, or worse he sees another Souter. The President owes it to his conservative base to present a well-qualified conservative nominee that adheres to original understanding. He turned; sadly, an opportunity to correct a horrible injustice that was done to Robert H. Bork and rather than re-nominate him, Bush looked no further than personal attorney.
Response to 2 – The argument for why Harriet Miers is unlikely to be another Souter is not only unconvincing, but is deliberately mistaken. The argument goes that the three republican nominees turned liberal votes on the high court were personally unknown personally, but that can be said of every justice that served on the high court. Hamilton, and other founders, didn’t want the chief executive appointing friends and loyalists. Ann Coulter made the point, “…Bush was still boozing it up in the early '80s, Ed Meese, Antonin Scalia, Robert Bork and all the founders of the Federalist Society began creating a farm team of massive legal talent on the right.” There are plenty reliable, proven conservative jurists, all snubbed, and Bush impulsively selects Miers. It should be an outrage to every conservative who has labored for change on the High Court. I would hardly blame “conservative experts,” a frivolous invocation, for justices O’Connor, Kennedy, and Souter.
Response to 3 – Joseph Farah best summed up Miers as, “a trial lawyer, a state lottery official, a blank slate, a personal crony, a nominee unlikely to buck the establishment.” Her nomination looks more like payback and reward for services rendered and loyalty as opposed to her having a quite conservative judicial philosophy unknown to all but the President. There is plenty of evidence that Miers is far from being a conservative, quite to the contrary, there is evidence she has something in common with Ginsburg…
Response to 4 – In a report submitted by Harriet Miers to the ABA (1999) included recommendations for an international criminal court and the enactment of laws and public policy providing that sexual orientation be dropped as bar to the adoption of children. Miers has taken positions as white house counsel that violates the ban on women in combat. She also supports homosexuals in the military when she endorsed the “don’t ask; don’t tell” policy of Clinton. As a city councilwoman, she said Dallas had the responsibility to pay for AIDS education and patient services. She courted the Lesbian/Gay Coalition of Dallas in her successful 1989 campaign by addressing them and saying, as other radical liberals have, that homosexuals and lesbians should have the same rights and privileges as straight people or in other words legal recognition of the sexual perversion and special rights. Conservatives may be distressed by her vote for a 7% increase on property taxes. Many Americans believe the lottery is immoral because it is a temptation, especially poor people, into a lifestyle of gambling that corrupts the American dream.
To be fair to the President, the anger toward the nomination of Miers has more to do with perceived betrayal than anything to do with this specific nomination. President Bush allowed Kennedy to write the education bill. He didn't allow a conservative to do it. He never vetoed one spending bill and spent like a drunken sailor...a far cry from the fiscal conservative we were hoping for. Then he nominates someone that Reid told him to nominate. It just seems to us conservatives that President Bush listens to our enemies more than to us. The only difference is that on judges Bush does seem to be rock solid in his social conservative convictions, based on his prior nominations. I'm therefore willing to cut him some slack on this one and let history judge his pick.
You hit the nail on the head, but the specific nominee matters as well. The AEI, a conservative think tank, has also made light of the fact that President Bush has presided over the largest expansion of the federal government in the entire history of the United States of America...is this what the conservative movement is all about?
How does anyone know who said no? How many will willingly go up against Senators that took notes on "the politics of personal destruction"?
My only point is that we don't know who was asked and turned it down.
PS. Thank you for the calm discussion. I'm enjoying this as FR has been unbearable lately.
There's a difference between Republicans and consevatives. And with Republicans like MaCain and Specter, who needs Democrats. It's called reality.
Exactly! Instead their seems to be unity among pretend conservatives, republican party loyalists, "moderate republicans," and the left led by the democratic leader of the Senate. They support the nomination while the principled conservatives, quite a few of who voted for Bush solely because of the issue of nominees to the high court, are outraged over such a nomination.
Yeah what principle, you mean the principle of your hero ann coulter to go on bill maher's show to make elitist snarky remarks about Ms. Miers?
This thread is just an example of blind shilling...you won't have any comfort. The most you'll get is a "trust me." Conservatives have every right to be skeptical, or even worried about nopminees to the high court, and we shouldn't resign ourselves to be rubber stamps that'll support future Souters, O'Connors, and Kennedys.
Such as refusal to answer questions, dodging, changing topics, pointless rehearsals, etc. I doubt the hearings will do much to enlighten us.
Good point. But it's hard to believe that there was no one higher on GWB's list with a thick set of conservative credentials who was willing. Miers may turn out to be an OK justice, but the nomination just seems too risk-averse to me. This is an unfortunate pattern so far in Bush's 2nd term, other examples being the backing away from the Social Security Reform debate and the drop-everything-and-spend response to Katrina. I'm not sure if Bush has become more sensitive to criticism, or if he has just gotten wimpy political advice lately.
Whatever the case, I'm not especially angry, just disappointed. I'd love to see some bold moves and have my confidence restored.
PS. Thank you for the calm discussion. I'm enjoying this as FR has been unbearable lately.
I agree. Thank you, too.
LOL...you throw the word "elitist" into the mix to describe Ann Coulter...that's not just slanderous...it is absurdly comical. That's an unqualified attack. I hope she goes on every show that'll have her to oppose Miers. Go for it! I can't stomach Bill Maher, but I can when Coulter is on.
I think it was a Thomas Sowell article where he said Specter warned Bush even before he had been sworn in for his 2nd term not to pick anyone that would upset the Senate. I believe there are some nasty politics going on.
Miers may turn out to be an OK justice, but the nomination just seems too risk-averse to me.
Yes. It's a worry. I'm anxious to hear her.
I'm not sure if Bush has become more sensitive to criticism, or if he has just gotten wimpy political advice lately.
It's hard for us, out here, to know what's going on in DC. It's not like the press is going to tell the truth either. My suspicion is a lot of backroom politics and maneuvering.
We agree to disagree.
Please don't take this the wrong way but I've got to say that statement is pretty funny given the current firestorm.
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