75% Chance Miers Nomination is Withdrawn (John Fund says on John Batchelor Program)

John Batchelor Program - WABC Radio ^

[Miss Marple]

Unless Abigail Thernstrom made a public comment, I will assume she has nothing to say one way or another. Stolen e-mails published in Newsweek prove nothing...since I am not certain that 1. They were her e-mails and 2. They were unedited. In addition, private disappointment with a nominee does not necessarily tranlate into public opposition.

[Vision Thing]

Glad to see that your Team Smear Miers is so hungry for that "Clinton savvy."

[GarySpFc]

When you talk like that, you forfeit the right to lament about divisions within the party.

You are the one with authority to determine who forfeits rights or not.

[inquest]

No one needs any "authority" to make a plainly obvious statement.

[GarySpFc]

You are correct regarding friendly fire. The following is a letter from an attorney written to Hugh Hewitt, and he makes some excellent observations.

Mr. Hewitt:

I am a practicing commercial litigator who thus far supports the nominee (although I am reserving final judgment until the hearings). I am also flummoxed by the rush among the Washington DC Conservative Establishment both to condemn this nomination and to dictate to the President of the United States that he must chose a nominee from a list of "pre-approved" names of probably 20 or so acceptable jurists.

Just for fun, I compared Miers' qualifications with that of another potential nominee, Judge Edith Brown Clement on the 5th Circuit, and found them to be very similar -- almost eerily similar. Actually, I would say "Creepy Similar." Like, "These Two Could Be Twins" similar.

By way of background, Judge Clement was one of the judges that Peggy Noonan described in her WS Journal article as being an acceptable alternative to Miers. Others have dropped her name as well (according to Mona Charen's most recent article, David Frum also cited her as a good choice, but I could not confirm this independently). Also, Clement was leaked as the early pick for the seat that ultimately went to Roberts. Based on the fact that Miers lead the search, I am not surprised that, considering their similarities in age and experience, Clement rose to the top of the list. (There's a scoop there for someone to follow and report on!)

Consider the following:

1. Both Miers and Clement went to regional Southern schools -- well respected locally, but without real national profile. (Clement: B.A. Univ of Alabama '69 and J.D. Tulane Law '73; Miers B.S. SMU '67 and J.D. SMU Law '70). I know Miers was Law Review, honors, etc, and I assume Clement was as well.

2. Both clerked for federal district court judges in the South in the early '70s (trial court judges, not the typical federal appellate clerkships for SCOTUS nominees). Clement clerked for Judge Christenberry, E.D. La. from 1973-75; Miers clerked for Judge Estes, N.D. Tex. from 1970-72.

3. Both enjoyed long, successful careers in large Southern law firms. From 1975 to 1991, Clement practiced principally maritime litigation at Jones Walker -- a well respected firm of about 200 lawyers with offices throughout Louisiana (Baton Rouge, New Orleans) and in Texas (mainly Houston). From 1972 through 1996, Miers practiced commercial and business litigation with Locke Purnell -- again, a well respected firm of about 200 lawyers with offices throughout north Texas (Austin, Fort Worth, Dallas).

4. In the early to mid 1990s, both obtained some of the highest levels of success in their profession. In 1991, Bush I appointed Clement to a district court judge position in the E. D. La. (the same place she clerked almost 20 years prior). Miers did not receive a trial court appointment, but in 1992 was elected President of the State Bar of Texas (she was President of the Dallas State Bar in '84). In 1996, Miers' partners voted her president of Locke Purnell. Locke Purnell then merged with another large Texas firm (based in Houston), became Locke Liddell, and Miers was elected co-managing partner of this new firm by her new and old partners -- the firm was by then one of the largest in Texas. This type of prominent position gave Miers access to very important people, and Miers impressed the newly elected Governor and received some legal appointments that sound a little silly now (counsel to gubernatorial transition team, Lottery Commission chair, etc).

5. In 2001, Bush appointed Clement to a seat on the 5th Circuit Court of Appeals and she was confirmed immediately 99-0 (not considered too controversial). Miers, however, went with Bush to DC and moved from WH staff secretary to WH deputy chief of staff to WH counsel -- all assistant to pres/ policy positions. (Note: I am tired of people describing staff secretary as a "paper shuffling" position -- the position is currently held by Brett Kavanaugh, a lawyer who is a former Supreme Court clerk, a Ken Starr protégé, and a Presidential nominee for a seat on the DC Circuit Court of Appeals. The fact that Miers has been dismissed as a "secretary" is the one place where I would say sexism has entered this debate. Nobody has ever dismissed Kavanaugh as a secretary.)

Considering their similarities in age and background, it does not surprise me one bit that Clement rose to the top of Miers' list. In fact, it actually surprises me a lot that Clement did not get the first SCOTUS nod (according to a Wash Post story, Clement came pretty close, but she and Bush did not hit it off in the interview whereas Bush and Roberts did). But I think this demonstrates pretty clearly that Miers possesses almost identical qualifications as Clement. But Clement is being suggested as an alternative by the same people who are suggesting that Miers is unqualified?

In fact, I would go one better -- I have, in my law practice, encountered some federal trial judges in some rural areas who are pretty dense (I'm not speaking of Clement -- I don't know her at all). But I have never, ever met a managing partner of a firm the size of Locke Liddell that I did not consider to be real bright. DC folk may not see this, but I am convinced that Bush sees Miers as an extremely successful Texas lawyer who is comparable or even interchangeable experientially with someone like Clement. (Or, for that matter, other "big firm Texas types" like Priscilla Owens who received her J.D. from Baylor in '77 before spending 17 years at Andrews & Kurth or Gonzalez who spent 12 years at Vinson & Elkins (he did go to Harvard)).

I bet Bush is hearing about this bugaboo from others, turning to Laura and saying -- what's the fuss?

I think two things are going on here. First, some independent minded/ con law bloggers (like Glen Reynolds) really want a SCOTUS nominee who is a "public intellectual" -- Professor/Judge McConnell is probably the most mentioned and I really cannot think of another on the radar (Posner?). There aren't many. Second, most prominent conservative opinion writers -- people who spent their whole lives writing opinions in and out of government -- want a judge who has spent his or her whole life writing opinions in and out of government. Luttig, Wilkinson, Rogers Brown all fit this mold. There's a fair amount of "self identification as qualification" going on here.

Me, I am a practitioner and I want someone who has practiced for a long time, and who has achieved the highest level of success in practice. I would be fine with Clement or Owens, but the President decided Miers was his pick and I really cannot quibble. He makes judgment calls on jurisprudence and temperament (subject to consent of the Senate), not me -- if there's any place he's earned my trust, it's on this.

If Miers was denied confirmation in place of someone in the "public intellectual/ judge for life" mold it is quite possible that for the first time in this nation's history the Supreme Court of the United States would consist of no one who has either (a) tried a case or (b) spent a significant portion of his or her life not in academia, in government or on the bench (with the exception of the 10 year appellate practice that C.J. Roberts engaged in). I do not think that would be a good thing.

In any event, I enjoy your analysis and, again, feel free to use as much of this as you deem appropriate. I do think the comparison between the careers of Miers and Clement is an original take and is worth posting.

Regards,

--Bob

[GarySpFc]

Little man, I was a conservate in the Republican Party fighting liberals when you were in diapers.

[safisoft]

I am probably what is called a pragmatist. I am willing to compromise on certain issues (the education bill, for exampl) in order to advance the conservative point of view in the long-term.

Let's see what pragmatism has gotten you in President Bush:

Right to life: Says he is personally for it, but his wife is publicly against it. Other than saying he is for it, we haven't seen anything yet. Jury is still out.

Right to bear arms: Anti-gun noises in ATF and there is some nipping around the edges - BUT allowed the so-called assalt-weapons ban to expire: a B+ on this one.

National sovereignty: Notwithstanding Bolton, we are still kowtowing to the U.N. bozos, and Dr. Rice's pressure on Israel is shameful and rewards terrorism in the Palistinians. A D on this one.

Strong military. No question, an A on this one.

Lower taxes: Tax cuts, are good, but with out of control spending (no veto pen in his desk?), this one gets a D.

No legislating from the bench: Jury still out - as far as the SCOTUS is concerned, no way of knowing.

So, pragmatism has you an A and a B+. We conservatives could live with the Ds and the Cs, but we were wondering about the ones that the Jury was still out on. We think we are finding out, as this pick shows something. That is what pragmatism gets you.

G.H.W. Bush was pragmatic. He was a loser.

[WrightWings]

I had hoped that at the LEAST we could agree that baseless personal attacks on the character of a nominee is out-of-bounds.

No disagreements at all on that, my FRiend. I believe both "sides" on this nomination have gone over the top with their rhetoric. But, more importantly, we have failed one another.

Miers has been nominated. What's done is done. But I think it very damaging to our collective side with how all of this has been handled. I do believe most of this public infighting could have been avoided with a different nominee.

Bush and his staff had to know there could be backlash against her. Given the recent PR problems with the administration, I think Miers was a very risky choice. Charges of cronyism, lack of a "public" stance on critical issues and bad past experience with stealth candidates would have been known issues to the White House. There surely had to be a candidate we could have all supported together.

So Bush nominates Miers and we proceed to tear each other apart. I'm mad that you won't understand my idealism, and you're mad that I won't understand your pragmatism. And so we call each other names and act like...well, Democrats.

Then the "pundits" in the media come out and throw gas on the fire. Good for them professionally, but it does make me wonder about their real dedication to Conservatism and/or Republicans. They knew they weren't helping, yet it didn't stop them from spewing their venom.

And so, here we are. Either let the nomination proceed and hope we don't get "Soutered" again, or withdraw the nomination and hurt our joint cause even more than we've already done.

In the end, I think we're all gonna lose no matter what path we choose. Alienate a reasonably small group of us, and we're going to lose elections. Damage ourselves by withdrawing Miers and we're going to lose elections.

And as much as I hate to say it, this time it really is Bush's fault...

[inquest]

Now that you've proven that your masculinity is threatened, do you have any actual points left to make?

[F.J. Mitchell]

Civil and/or rational manner is interpreted according to the abilities, life experiences and preconcieved notions within the recipient mind, which are beyond the control or anticipation of the mind transmitting the verbalized input.

As far as I can see your answer is only clear to you.

[GarySpFc]

Certainly. It is my observation you are motivated by hate, not reason, and that is why you are unwilling to grant Miers her hearing.

[inquest]

Well, I've given my reasons here on this thread, mostly at #337. Feel free to address them any time you like.

[XJarhead]

I have, in my law practice, encountered some federal trial judges in some rural areas who are pretty dense (I'm not speaking of Clement -- I don't know her at all). But I have never, ever met a managing partner of a firm the size of Locke Liddell that I did not consider to be real bright.

That's an excellent point, and one that matches my own experience. Not that I'd tell stories about federal judges out of school, but.... Well, if you've been there, you know what I mean.

And likewise, the point about managing partners is correct as well. Maybe the best evidence of that is to ask yourself how many managing partners of firms that size have ever been nominated to the federal bench? I'm betting its pretty close to zero, because most such moves would be considered a step down.

[beyond the sea]

BTW, just try to explain the crap she spewed on bill maher's show on HBO. Please, I really want to see her implications justified, that President Bush is a drunk lush, incapable of thought deep enough to actually appoint a SCJ.

Ann Coulter can be a sophomoric little noise maker at times, but she could not have said anything like that about the president..........right???

[F.J. Mitchell]

This is not an argument about free speech, but about a Presidential appointee. The Lady has been appointed and has every right to a full hearing before the Judicial Committee and yes, no one can be forced to listen to her but On the other hand we who do wish to hear her have the right to hear her........just for the record.

[rcrngroup]

Howlin, every time I read your posts, you fling insults and smear tactics. Zero substantive comments, just attacks. You've gotta be a Dem troll who likes stirring people up with attacks and insults.

[alnick]

However, she is not qualified to serve as an Associated Justice of the Supreme Court of the United States - the most powerful court in the most powerful nation in the world.

You have no basis in fact for that assertion.

[onyx]

Sure there 04 sign on.
She's the troll... been here for several years.

Good to know you can't win a debate with Howlin.
Take your place at the end of a LONG line.

[indcons]

Howlin - a Dim troll?? You gotta be joking. I have disagreed with Howlin at times but never did I call somebody who has been here for 8+ years a Dim troll. LOL, rcrngroup......the joke is on you.

[Mike Darancette]

I have no doubt they will agree to vote her down to avoid a filibuster.

The gang would be saying, in effect, that the Miers nomination is not extraordinary, therefore the RATS on the Gang would have to vote along with the Republicans on the gang for cloture then the Republicans on the gang would have to vote with the Democrats on the gang against conformation.

This would cause maximum pain for all members of the gang.

Here's a scenario for ya, what if the GOP filibusters?

I'm popping the corn as we speak.