Friday, October 07, 2005

$0.02

Movement conservatives have their panties in a bunch over Harriet Miers. So be it--she is apparently not herself a movement conservative. News flash--neither is George W. Bush.

Dubya is of the Christian evangelical strain of the Republican coalition, one that has common cause with the "movement" almost across the board--a regard for the societal norms that by hook or crook raised us from the Hobbesian ooze, a belief in a higher moral order, and an economic liberalism that's really an opposition to statism, especially the post-modern kind which holds man is no more than the sum of his atoms, and his society no more than a set of conventions to be manipulated for maximum utilitarian efficiency.

I may be stretching here to point out that the conservative movement has attracted many Catholics and Jews, whose heroes number Catholics Thomas Aquinas and William F. Buckley, and on the neo-con side the putatatively Jewish (but likely atheist) Leo Strauss. Logicians all of the first order, from religious cultures that highly value such things.

However, to the Luther-inspired evangelical system of values, faith alone saves. The best person for the job is not the one with the best mind, but with the best philosophy, and Jesus is the best philosopher. Therefore, character, that which leads one to his values and then binds him to those values when the going gets tough, is the true measure of a man.

Or woman, in this case. And having worked side-by-side, day-to-day with Harriet Miers for over ten years, this is one decision for Dubya that isn't as hard as it looks. (I never believed he was taken in by Vladimir Putin, just trying to inspire the man's better angels.)

I understand the desire of Ann Coulter, et al., for a brainiac over a "good person," but be careful what you wish for. Intellect and logic are mighty but also give us Friedrich Nietzsche and Peter Singer.

It is character that abides. And if you poke through the accounts of Ms. Miers' life, a rare combinition of humility and assertiveness, there is little doubt that Dubya is convinced she's one of the best persons he's ever known, and his worldview is that the best person for the job is always the best person. (Based on my familiarity with the law industry as a headhunter, I find her qualifications adequate, if not bootstrap-admirable.)


I often have to use the completion-backwards principle to divine the workings of Bush's brain, as I've attempted here, but add in the politics of the matter, that Harry Reid suggested that Miers wouldn't get much of a fight, that the GOP half of the Gang of 14 is wobbly, and that this has not been the best of years to throw around the weight of his slim electoral majority, and the pick makes sense to me, at least from Bush's point of view.

Movement conservatives may rightfully say they didn't vote for Bush to get half-a-loaf Supreme Court candidates. However, many other folks who voted for him too may be getting just what they want, including the President himself.

Now, I've Really Had It

Per the Washington Post, let's review the following from Harriet Miers:

In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with "Warren" -- which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade. Miers said she meant Warren Burger, the sources said.

Oh . . . My . . . Goodness . . . This . . . is . . . terrible . . . Blacking . . . out . . . Choking . . . on . . . own . . . tongue . . .

There is no good way to read this.

A. She isn't sure about the difference between Warren Burger and Earl Warren.
B. She chose either Burger or Warren as her favorite, neither of which would augur particularly well for her judicial philosophy.
C. When trying to say Warren Burger was her favorite, she could only think to refer to him by his first name.
D. She really meant Earl Warren, which would be an utter and complete meltdown. She could have said him simply because he is the most famous modern Justice.
D. Other unflattering possibilities.

I am famous for getting angry about elitism or about labeling ideological enemies as stupid, but listen up, there is qualified and there is not qualified. I don't think Harriet Miers is qualified. She is surely a top litigator, trial advocate, and legal manager. She is not surely anybody's constitutional scholar, Supreme Court advocate, or judge. (HT: Southern Appeal)

Update: Kathryn Lopez at National Review says she has heard another version of this story in which Miers was interrupted while attempting to say Warren . . . Burger for his administrative skills as an answer to which justices she admired. That would be a very strange answer, too, but it's the blogosphere so you can have the two stories so far in front of you. This is hearsay, which may be better or worse than the Washington Post account claiming several sources.

Thursday, October 06, 2005

Receivable In Voices

Anyone who has read my work knows that I believe in God and that I think that a great deal of intellectual and moral information resides in religious texts; nor do I belittle the inspiration that can be derived from religious experiences.

On the other hand, Presidents who go around telling heads of state (or wannabe quasi-heads of faux states) that God is sending them messages (other than the sense that God inspires the operation of their intellect and discretion) how to govern get me nervous. Here, read this and tell me what you think.

Mr. Karnick, Your Answer in Part . . .

Is right here:

New Chief Justice John G. Roberts Jr. yesterday sharply questioned a lawyer arguing for preservation of Oregon's physician-assisted suicide law, noting the federal government's tough regulation of addictive drugs.

At the outset, Chief Justice Roberts directed a barrage of questions at Oregon Senior Assistant Attorney General Robert Atkinson before the state official could finish his first sentence.

"Doesn't that undermine and make enforcement impossible?" he asked Mr. Atkinson.

At one point, a flustered Mr. Atkinson said: "I'm starting to be backed into a corner."

It makes a difference what kind of intellect and experience you put on the court.

My Mom

Well, I've missed a lot around here lately. I was back in Philadelphia, where my mother, Marie, passed away peacefully last week at age 71.

She was too weak to undergo a second operation, but strong enough to stay with us a few weeks longer so we could all say goodbye, and slowly get used to the thought of living on without her. That's the way she was, giving much more than she took.

It was difficult, of course, but thoroughly proper in that old-fashioned way before this age of pulling tubes and plugs, gathered about her bedside singing songs, retelling our family stories, catching up for the last time, and sharing lots of smiles and laughs and kisses.

She said that it sounded strange, but she had some very, very happy times in those last few weeks. I know what she meant. There are a few selfish tears of loss, but mostly the ones that come in the face of those rare moments of crystal clear yet incomprehensible beauty.

Please let me thank you all for the warm thoughts sent our way through this, and close off the comments for this post. A quick prayer would be appreciated. Sleep in peace, Mom, until I come to thee.


"When you find a moment of happiness, bask yourself in it. Roll around in it and enjoy it. Promise me you will.

And when the bad times come—and everyone has their time on the fence—you take it one day at a time. That's all there is for it."
Marie O. Dyke

Sen. Kennedy's Colossal Nerve

A message making the rounds of the internet reports and comments briefly on an interesting statement recently made by Sen. Edward M. Kennedy (D-MA), which I confirmed by finding the relevant quote in the Washington Post here. The Kennedy statement was in regard to the federal government's response to Katrina, and the internet message is as follows:

"What the American people have seen is this incredible disparity in which those people who had cars and money got out and those people who were impoverished died," Sen. Edward M. Kennedy (D-Mass.) said.

Mary Jo Kopechne could not be reached for comment.

The Spin Zone

Cato Institute received a call this morning inviting me to appear on Fox TV’s O’Reilly Factor. For a moment, that seemed odd. In my experience, the only way you get invited on that show is if you agree beforehand to (1) keep repeating “you’re absolutely right” to O’Reilly or to (2) take some absurdly extreme position that will be easy for him to shoot down. This unique exception to those two rules was because my new column, “The Foolish Factor,” got someone’s attention.

I couldn’t possibly appear on TV tonight. There is a not-to-be-missed black tie event tonight celebrating National Review’s 50th Anniversary. Bill Buckley and the late James Burnham discovered me back in 1971, recruiting me to be NR’s economics editor for several years.

To avoid being exposed to a familiar O’Reilly stunt – namely, “we invited him to appear” (but he was too chicken) – I agreed to do a radio interview instead. But the President said something and that got me bumped. For the record, I’m not intimidated by O’Reilly’s inclination to call his critics pinheads, even though he is a foot taller than I am.

What is being tested here is the thickness of his skin. In his September 9 show, “Feeling Sorry for O’Reilly,” he said, “After I criticized the price gouging by the oil companies, ‘Bill O'Reilly is an Economic Fool,’ headlined one blog. Well, take out the word "economic" and you'd be more accurate.” That showed his sense of humor, which is fine, but the truth is that leaving in the word “economic” would be more accurate. O’Reilly is wise and clever about many issues, but not economics. He has degrees in history, journalism and public administration, but must have slept through basic economics.

He concluded that show saying, “Feeling sorry for me yet? Look, all this dishonest nonsense is ideologically driven. And it appears all day every day in this country, there are no standards anymore in the media. But the good news is that folks are seeing through the propaganda and coming into venues that tell the truth and deliver opinion backed up by fact.” My "ideologically driven" (?) column claims Bill O’Reilly has not been telling the truth about price gouging by the oil companies and he has not been backing up his arrogantly ignorant opinions with any facts.

Don’t feel too sorry for O’Reilly. He has his own column with the same syndicate that carries mine, and his own newsletter, so he is welcome to try answering me in print if he likes. Or, he could simply confess that he has no idea how gasoline prices are set or by whom. The rest of us print corrections when we make mistakes. There's no dishonor in that.

Miers v. Ingraham

Richard Miniter has a devastating piece comparing Harriet Miers to talk show host Laura Ingraham for the Supreme Court spot at National Review. Consider this:

Miers's undergraduate education was completed at Southern Methodist University in Dallas in 1967. Ingraham graduated from Dartmouth College, in Hanover, New Hampshire. That's not to say an Ivy League education is a prerequisite for Supreme Court service. It's not. But as one of many details in one's background, a highly selective admissions process is not nothing.

Campus conservative? No, Miers was essentially apolitical in the 1970s and gave money to various national Democratic politicians in the Reagan years. By contrast, Ingraham was a regular contributor to the conservative Dartmouth Review and worked in the Reagan White House.


Miers attended law school at Southern Methodist University, not one of the nation's top 20 law schools at the time. Even today it is ranked 52nd best in the nation by U.S. News and World Report. Ingraham studied at the University of Virginia Law School, currently ranked eighth in the nation.

Federalist Society membership? It does not appear that Miers bothered to join. Of course, it was founded years after she passed the bar, but many conservative lawyers do join after law school. "But she supports the society," says White House press person Dana M. Perino, and Miers has spoken at a number of Federalist Society events. Ingraham of course was a member.

Clerked for federal judge? Yes, Miers clerked for a U.S. District court judge Joe E. Estes in Dallas. Ingraham clerked for judge Ralph K. Winter on the second circuit of the U.S. Court of Appeals.

Clerked for U.S. Supreme Court? Miers did not, while Ingraham researched for Justice Clarence Thomas.

Age does not seem to favor Miers either. She’s 60; two decades younger, Ingraham would have more natural staying power.

Attorney at a top-20 national law firm? While a lot has been said about Miers's accomplishments, her old firm is simply not a major player on the national stage. Even after a merger with another firm, the new outfit, known as Locke, Liddell & Sapp, was ranked no. 94 by The National Law Journal in 2003. That same year, Ingraham's firm — Skadden, Arps, Meagher & Flom — was ranked no. 3 by The National Law Journal. So, at best, Miers was a big fish in a smallish pond.

Both Miers and Ingraham have White House experience. Ingraham was a speechwriter for President Reagan in his last two years, helping craft the president's message on many of the vital issues of the day. Interestingly, despite what Bush describes as Miers's "stellar record of accomplishment in the law," he did not name her White House counsel in his first term. Instead, she was appointed staff secretary, a manager of presidential paperwork. While many distinguished people have served as staff secretary, including Brett Kavanaugh, it may say something about Bush's view of Miers's capacities that he first put her in such a detail-oriented staff job, rather than one grappling with major legal and policy issues. Miers only became counsel to the president, the top legal job in the White House, in February 2005. Seven months later, she was nominated for a Supreme Court seat.

Of course, Miers has other government experience. She cleaned up the mess at the Texas Lottery Commission. No doubt a vital public service. But Governor Bush did not urge her to join the state supreme court. Meanwhile, Ingraham served in policy positions at the U.S. Department of Transportation and Department of Education. This seems like a draw.

Miers does not have much a paper trail, or at least one that the public will be able to see. By contrast, Ingraham has written two books, including one bestseller, as well as many bylined articles in national newspapers and magazines.

The president told a reporter Ms Miers is the most qualified female lawyer in the nation. Think he'd like to reconsider? And Ms. Ingraham isn't even the best credentialed female out there.

It's Not Just About Pro-life

We keep hearing assurances that Harriet Miers is pro-life.

That is not, strictly speaking, what I'm interested in. It is true that I am ardently pro-life and that I am on record in the Regent University Law Review arguing that changes in our medical knowledge now fully vindicate treating unborn humans as persons under the 14th Amendment. However, what I am interested in is getting a judge who will not twist the Constitution into a vessel for imposing one's preferences on the American people as was so clearly done in Roe. Roe was wrong on history, wrong in what it said it didn't need to know, and wrong in its constitutional interpretation. Those penumbras and emanations resonating off various parts of the Constitution were ridiculous and we all know it. If they weren't, then we should have "discovered" massive protection from economic regulation in the contracts clause.

Miers' friend Judge Hecht has said that one could be pro-life and still believe the constitution requires upholding Roe. I don't think so, not because of any special quality of being pro-life, but simply because no intellectually honest person can or should believe the constitution requires upholding Roe.

At a minimum, Justice Scalia is right and the abortion decision should revert back to the states. His position is not related to his pro-life viewpoint. His position depends entirely on his theory of constitutional interpretation, which is the only theory that keeps us out of the situation of having five of nine justices essentially rule as philosopher-kings.

So, what we are interested in is Ms. Miers' understanding of constitutional interpretation, not her political position re: abortion. I would rather have a jurist with a correct understanding of the constitution than I would one who believes the right thing policy-wise about abortion.

Wednesday, October 05, 2005

. . . Still Not Bothered

I find the anger of the Republican rank and file toward President Bush for the Miers nomination quite interesting, and I greatly respect the opinions of my fellow members of the Reform Club. I have been quite critical of President Bush on this site, from the right of course, especially as regards his economic policies. I think that I have been the most critical of the Reform Clubbers by far, toward this president. Perhaps this is why I have not reacted with such horror at the Miers nomination: My expectations of this president have evidently been not nearly as high, and hence my disappointment is minimal. To me, the nomination remains a practical question: Will Miers make a strict-constructionist majority on the Court? And to me the answer is yes.

Ross Douthat Suggests the Path for Winning the GOP Primary in 2008

Ross Douthat is one of my favorite commentators and he shows why in this post:

Idle Speculation:

In spite of the fact that only Hugh Hewitt seems willing to step up and defend the "deplorable" Miers appointment, I think the odds are about 1000-1 that she'll sail through her confirmation hearings. That said, it seems like there's a political opportunity here for a right-wing Republican Senator looking to become high-profile in a hurry. Somebody in the Senate is going to be the first to point out, loudly, that the Harriet Miers pick is an utterly ridiculous case of Dubyan cronyism. And if that somebody is also a conservative Republican who's willing to point out how unfavorably she compares to Scalia and Thomas (and Roberts) - well, they'd earn the eternal enmity of the Bush clan, but they'd also probably manage the difficult twofer of getting favorable coverage in the mainstream press (for being independent, anti-cronyist, etc.) and earning some serious chits with the GOP's base, to be cashed in during the '08 race or beyond.

Does that sound politically risky? Sure. But this is a moment when the end of the Bush era is suddenly and strikingly visible, and what happens during the Miers hearings might make a big difference in where various figures stand once Bush has gone back to Crawford for good.Perhaps just this thought has occurred to Jon Thune . . .

PS - Or Rick Santorum . . .

Calling Hugh Hewitt for a Justification

Hugh Hewitt is one of the most ardent defenders of the Miers nomination, referring to it as "a B+ pick." I defer somewhat to Hugh in the normal course of events because he is often right, but this time he is a Bush homer to the limit.

The following line demonstrates the degree to which he is deceiving himself:

Yes, I wanted Judge Luttig or Judge McConnell, but the president wanted Miers, and I don't for a minute believe it is because of friendship, but because of W's understanding of the importance of the Court.

I'd like to know how you could possibly bring Luttig and McConnell into the conversation and then suggest the Miers pick was because of the importance of the court. I'd love to see Hugh defend his statement by explaining in what way Miers excels Luttig, McConnell, or any of the excellent female appellate judges who have been mentioned. He can't defend his statement in that way. That leaves us with friendship and personal comfort level, which are clearly the wrong criteria for the selection.

My own take is that Hewitt has generally been virtually uncritical in his support for Bush and that he reflexively supports Miers because he was also part of the White House Counsel's office. It's personal and organizational loyalty all the way. When it comes to the law, that attitude won't cut it.

David Frum Joins In . . .

This may be the line I was looking for in responding to our Captain S.T. It comes from David Frum:

He should have chosen a justice who could lead by power of intellect, and not because she possesses 1/9 of the votes on the supreme judicial body.

This is so right on it hurts. I have been one of the President's biggest supporters, but this choice represents such offensively poor decision-making, I just can't stay on the boat any longer. If Bush were allowed to run for a third term, I'd support somebody else in a primary run.

The President's petulance in the press conference shows that he knows there is a lot of resistance on the right and he doesn't care. I mean, the guy is just aggressively anti-intellectual and this is one place where intellectuals really count. We've heard from the defenders who try to make it seem that this is about her law school or the fact that various conservatives wanted nominees they knew personally, but that's not it at all. The weeping and gnashing of teeth is over just what Kathy says it is: there are too many who have paid their dues and demonstrated exactly the abilities needed for the court.

The White House thinks that this mess will blow over in 48 hours. Not bloody likely. These disappointments are deep and abiding. If I were polled on the president's job approval number today, he'd be heading into the 30's or worse. When the Pres. has lost me, he's really lost.

Kathy Piles On

Sorry, Sam, but I must stand with Ben and Hunter on this one. This nomination is one of the worst moves Bush has made so far, and I'm not a Republican cheerleader who has overlooked and excused his previous miscues.

I realize that people are reaching back into history to find nominations similar to Miers's, and to reassure themselves that some of those (Rehnquist, for example) turned out not so badly. I think this is misguided, for the simple reason that the Court today represents a power that it has never represented in the past, and thus demands a type of legal mind -- one that is philosophically committed to undoing its usurpation of that power -- that was never a requirement in the past.

I am not in any way reassured by these reverse arguments from silence. Elite lawyers, like any other professionals, make decisions about what is important to them and these are reflected in the kind of law they practice. Sunny smilers like Hugh Hewitt seem to think that it's just happenstance that Harriet Miers has never spent much time visibly engaged with constitutional law. Horsefeathers. She hasn't spent time becoming a constitutional scholar because it wasn't important to her, in the way it was important to fifty other conservative legal minds I could name off the top of my head, including a dozen women.

I am also not being won over by Bush's increasingly petulant manner when defending his nominee. It suggests to me that he did not anticipate the level of conservative disappointment he was courting, which suggests that he's not the brightest bulb on the Christmas tree, which suggests that the argument that we should trust him is somewhat misplaced.

Beyond Mere Voting . . .

S.T., I can't agree. There is a lot more to a Justice than how he/she votes. As one who has been through the law school process, I can tell you that what a judge writes matters greatly. We carefully examine the opinions, all of them (majority, concurring, dissenting), in order to get the full picture on religious liberty, free speech, interstate commerce, etc.

The great Princeton philosopher Robert George always urges his students to engage in the strongest possible lines of argument. In order to do that, you need the strongest possible arguers. We should pick our best and brightest, not our most comfortable, on the conservative side.

There is also the little matter that she is 60 years old and we give up a good decade of influence on the court, unnecessarily.

Tuesday, October 04, 2005

. . . and One Who Is Just Not Convinced There's a Problem

Hunter Baker, Esq., and Dr. Ben Zycher have laid out some very well-considered arguments for their opposition to the Miers nomination.

Yet I remain unworried. Both writers are concerned that Miers might not be as steadfast as Justices Thomas and Scalia. That is a valid concern. However, certainty is something that we are seldom afforded in the case of a Supreme Court nominee. Sure, Miers could turn out to be another Souter, but it is important to remember that the Souter mistake happened because the president who nominated him was insufficiently aware of the possibility that he would prove to be so different from what was expected, and hence failed to investigate him sufficiently. Yet who could be more aware of such a possibility than the current president, son of the man who nominated Souter to his great regret? And whose judicial philosophy could Bush the Younger possibly know better than that of Miers, who has been a close associate for years? The situation is not at all analogous to the Souter nomination.

I still have been given no evidence that should cause us to believe that Miers will not be in agreement with the strict constructionists, and the notion that even if she is currently on the reservation she will quickly be worn down by blandishments of wily leftist status-givers strikes me as rather speculative at the least. In addition, the idea that a Supreme Court Justice's effectiveness is based on his or her ability to persuade other Justices to accept his or her opinions does not take into account the way the Court really works. The Justices know what they think, and they do not change their minds based on arguments made in camera with one another. On the contrary, they volunteer to write opinions and then write them, and concur with one side or the other according to their vote on the matter. This is my understanding based on what I have heard directly from Justices themselves, and I find it a highly plausible picture. After all, Clarence Thomas and Antonin Scalia could not persuade Souter or Kennedy to join their side, much less move Ginsburg, Breyer, or Stevens even an inch. Finallly, the notion that the other Justices would look at Miers as a lightweight strikes me as extremely unlikely and of no moment. She would have a vote just like theirs, and that would be that.

As to the value of a public fight over judicial philosophy, wouldn't the point of such a fight be to establish a strict-constructionist judiciary? And wouldn't the creation of a strict-construction judiciary be achieved by the establishment of a strict constructionist majority on the U.S. Supreme Court? And isn't that exactly what Bush's nomination of Miers is intended to achieve? Why fight a war when we can just take the objective without a battle?

Ultimately, what counts is how a judge votes, and nothing else. I see no reason to believe that Miers will be anything other than the kind of Justice that the Republicans have been asking for, and that she will create a majority of such Justices on the Court.

Make That Two on the Reform Club Editorial Board Against Miers

I am completely unified with the good Doc Zycher both in his opposition to the Miers nomination and in his distaste for W's leadership at this point in the presidency.

I was extremely underwhelmed by his choice of Dick Cheney for Vice-President back in '00. Do I lack appreciation for the magnficent Mr. Cheney? No, he's a stud, but I knew the election would be hard fought and it didn't make sense to add a fellow to the ticket who tipped the scales not at all on any state that mattered. How did he pick Dick? Well, Mr. Cheney was charged with finding the right veep candidate, just like Harriet Miers was supposed to find the right court nominees. Twice on crucial personnel decisions, Bush has taken the (personally) easy way out and offered the job to a friend of the family.

I want to be clear about something. I expect Harriet Miers is superbly talented and has done her job well, but we are trying to have a debate both on the court and in the public about judicial philosophy. John Roberts, who was arguably the top Supreme Court advocate in the nation prior to his appeals court appointment, comes ultra-well equipped to join Thomas and Scalia in writing provocative opinions and perhaps even moving the court's decisions through sheer force of argument. Harriet Miers has nothing in her record to indicate she has that type of temperament or ability. She will also carry the disadvantage of joining the court without the kind of resume' that will command respect among the other members. If Bush had picked Michael McConnell for instance, he would have come on board as an elite legal scholar and an appellate judge. Instant respect. Instant ability to move the direction of the court. Instant vindication of GOP principles because we are supposed to believe in meritocracy. And of course, there have been female judges who have made names for themselves, as well, and who were far more deserving than Ms. Miers.

I believe the president should be able to appoint people he trusts to his cabinet and White House positions, but that is emphatically NOT the key point to be observed in nominations to the court.

What's the Problem?

My esteemed colleague Sam Karnick observes in the context of Harriet Miers' nomination to the Supreme Court that El Presidente W says that she has the right philosophy, an interesting observation from a man (W, not Sam) not known for philosophical musings, whatever his other virtues. And there purportedly is no reason to believe that she is less likely to retain her current philosophy than John Roberts. And she almost certain to be confirmed. And so, asks Sam: "What's the problem?"

Oh, dear; where to begin? In a White House that values "loyalty" above all, in a world in which the line between loyalty and sycophancy is less than sharp, Ms. Miers' "philosophy" remains entirely obscure, above all to President W regardless of the self-deception into which he has allowed himself to descend. That she implemented W's preferences in the numerous judicial searches conducted by this White House is far less revealing than Sam seems to believe: In a While House populated with sycophantic careerists desperately seeking each day opportunities to plant wet kisses on W's shoes (or somewhere), Miers is reported reliably to have displayed the greatest zeal of all, announcing to all within earshot that W is "the smartest man she ever met." Well: That says something interesting either about Miers or about W or about all the other men she has ever met, however few that may be. But we cannot know which. The central fact is that no one---probably including Ms. Miers---knows her legal philosophy, in that there is no evidence that she has ever devoted the time and effort necessary to develop one that can be called coherent. Perhaps she has. But what is the evidence for that other than a testimonial from W, who---ironically like Saddam---hears largely what his staff believes that he wants to hear? More generally, there is good reason to distrust---profoundly---anyone who has succeeded fabulously in an environment in which objectivity does not appear on the list of attributes yielding upward mobility. That environment is the current White House, and that success is the shining achievement of Miers.

And so the assertion that she will prove as steadfast as Roberts over the long run rests on a series of assumptions far less than awe-inspiring. It is at least equally plausible that, just as she has bent to the prevailing winds in the White House, she will over time "grow" as the Washington Post likes to put it, that is, move to the left. Perhaps that is wrong. But the point is that there is no way to know from her record; and unlike Roberts, who implicitly would have to repudiate a career-long record of writings and other output, Miers would face no such constraint in terms of a shift toward the Breyer/Ginsburg/Souter axis. And so: There is good reason to believe her more likely than Roberts to move to the left, particularly given the Beltway blandishments available to those who do so. The Harvard lectureships. The conference panels in Europe. Ad nauseam. Does Clarence Thomas---by far the best of the current Justices--- receive many such invitations? The question answers itself. Perhaps Miers indeed will prove steadfast. But what is the rationale for accepting this risk?

That she is likely to be confirmed is irrelevant to the issue of Constitutional philosophy, both in its own terms and in the larger context of depoliticizing the confirmation process. Here was a chance for W to nominate an intellectual giant. Here was a chance to force the leftists to oppose a stellar nominee, in a world in which such a stance would be far more difficult politically than in 1987. Here was a chance, with a nomination of, say, Janice Brown, to expose the utter hypocrisy and nihilism of the Senate blue staters. Here was a chance, in short, to drive several nails into the coffin of Borking. Here was a chance to excite the Republican base in advance of the 2006 elections. Here was a chance to entice the leftists into a filibuster and thus to shove the nuclear option down their throats. (Do not let anyone tell you that fifty votes would not be available to do so.) And so what did W do? He looked into Miers' eyes, presumably, and liked whatever it is that he thinks he saw. Not in every dimension, but in most, W is a disaster.


No Fear of Miers

I haven't yet weighed in with my personal assessment of President Bush's appointment of Harriet Miers to the the U.S. Supreme Court. Judging from the reaction here and elsewhere, everyone to the right of Harry Reid is appalled by the choice.

I guess that I must be preternaturally sanguine, then, because I just have not been able to see this appointment as troubling at all. Yes, I have heard that Miers gave money to Al Gore's 1988 presidential campaign (and that since then she has given mostly to Republicans). And I understand that the public knows little about her judicial philosophy. But Bush must most certainly know what she thinks about how justices should assess constitutionality, and he has said that he does know and is extremely confident of her conformity with his views on the matter. Hence it appears to me that she must have precisely the kind of judicial philosophy for which Republicans have been asking. Furthermore, we have been given no evidence for reasons to think her less likely to retain her current philosophy than, say, Chief Justice Roberts is. Plus, she's almost certain to be confirmed by the Senate. If all those things are true, what's the problem?

Monday, October 03, 2005

Krusty the Clown and the Miers Nomination

Rod Dreher hits it out of the park at The Corner:

There is no event that cannot be related to an episode of "The Simpsons." The freak-out among social conservatives about the Miers nomination reminds me of the "Kamp Krusty" episode, truly one of the all-time greats.

You'll recall that Bart and Lisa spend a summer at Kamp Krusty, which is gruesome, ghastly and horrible in about a million different ways.But Bart refuses to believe it, because to have done so would mean having to question his faith in his hero, Krusty the Klown.

But when the camp leaders try to pass Barney the Drunk off as Krusty, Bart cracks. He spouts:

"I've been scorched by Krusty before. I got a rapid heartbeat from his Krusty brand vitamins, my Krusty Kalculator didn't have a seven or an eight, and Krusty's autobiography was self-serving with many glaring omissions. But this time, he's gone too far!"

A Sharp Pain in the Gut

No, this is not about Harriet Miers. I thought we could all use a break from that disaster.

The first Nobel Prize of 2005, for Physiology and Medicine, was announced this morning. It was awarded to Drs. Robin Warren and Barry Marshall, both of Australia, for their discovery in 1982 that peptic ulcers are caused by the previously unidentified bacterium Helicobacter pylori.

Unlike Nobel Prizes in physics or chemistry or, God forbid, the Bank of Sweden Prize for Economics, the winners of the Nobel Prize in Medicine have usually done something that has directly, identifiably, and promptly improved the quality of life of many, many people. This is undeniably true of this year's prizewinners. Before the discovery of this infectious agent, people with ulcerating lesions of the duodenum were told that their malady was the result of stress and a difficult personality, and were told to calm down and eat bland food for the rest of their lives. Their untreated infections caused not only pain, but various cancers of the stomach and esophagus. The modern treatment for peptic ulcer is a round of inexpensive antibiotics, which is effective in virtually 100% of infections.

Drs. Warren and Marshall were treated with extreme skepticism by the medical establishment when their theory was first proposed. Conventional medical wisdom had held, since the dawn of the germ theory of disease, that infectious agents could not survive in the harshly acidic environment of the human stomach. Because there were no suitable animal patients on which to experiment (and even today, no animal other than humans has been shown to harbor H. pylori), Marshall infected himself with a culture-grown colony of Helicobacter, made himself gravely ill, and proved the hypothesis. In the wake of this discovery, the role of infectious agents in a number of other chronic conditions, including heart disease, has been looked at anew.

Science has ever developed thus -- a couple of guys get an idea, everyone else tells them they're insane, they keep working at it, they take some risks, they absorb some insults, and in the end they wipe the eyes of their former detractors. Assumptions are made to be challenged, not blindly accepted, even if they have been held for a hundred years or more.

I'm sure you get my (continental) drift.

Measured Praise for Harriet Miers

While most conservatives, including those on this site, are wringing their hands over President Bush's appointment of Harriet Miers to replace retiring Associate Justice Sandra Day O'Connor on the Supreme Court of the United States, Indiana governor and former director of the federal Office of Management and Budget Mitch Daniels approves of the choice, according to the Indianapolis Star.

Or does he? The Star story quotes Daniels as saying, "She's very good at drawing out arguments on both sides of the question," and calling her a "decent, thoughtful, caring and balanced person." He said he got to know her well during his time in the White House and that her intellect is at least as good as those of the senators who will be questioning her during her nomination. The Star quotes Daniels as saying, "She is so hard working," and, "For all of her gifts, she is a very modest person."

Those are all very nice things, and superb qualifications to run the Red Cross. What is missing here, interestingly, is any mention of her opinions and central beliefs.

W and the Mind of Harriet

Well, I think that this nomination may well be the effective end of the Bush Administration--- which has not been a complete disaster, but largely one---and it almost matters not whether Miers turns out down the road to be a true Constitutionalist. With all of the incredible talent among which W was able to choose, this is the best he could do? "She has been listed as one of the most attorneys in America," or something like that. Maybe he looked into her eyes and determined the deep wellsprings of her philosophical bent. Just like with that libertarian, Vladimir Putin.

Uber-leftist Daily Kos is Right For Once

Sit back and enjoy
by
kos
Mon Oct 3rd, 2005 at 09:25:16 PDT


Several Democrats, including Reid, have already come out praising Miers, which ultimately will only fuel the right-wing meltdown on the decision.


I reserve the right to change my mind, but Miers' biggest sin, at this early juncture, is her allegiance to Bush. That her appointment is an act of cronyism is without a doubt, but if that's the price of admission to another Souter or moderate justice, I'm willing to pay it.

More immediately, this is the sort of pick that can have real-world repercussions in 2006, with a demoralized Republican Right refusing to do the heavy lifting needed to stem big losses. That Bush went this route rather than throwing his base the red meat they craved is nothing less than a sign of weakness. For whatever reason, Rove and Co. decided they weren't in position to wage a filibuster fight with Democrats on a Supreme Court justice and instead sold out their base.

We'll have several months to pick through Miers' record, as well as highlight her role in any number of Bush scandals (like Georgia10 notes).

But my early sense is that this is already a victory -- both politically and judicially -- for Democrats. In fact, it should be great fun watching conservatives go after Bush. He may actually break that 39-40 floor in the polls, given he's just pissed off the very people who have propped up his failed presidency.

Update: Yup, Democrats are fully aboard. Reid's statement on the flip. Cue in more anguished wails from our esteemed colleagues on the other side of the aisle.

Kos is right about this one. Bush has made a potentially lethal decision for the party. The GOP caucus in the Senate should mark this one rejected and ask for a new submission.

Before 8 AM . . .

Why can't we turn back the clock? The sense of disappointment over this nomination has absolutely sapped me. Legal enthusiasts (like me) look forward to these opportunities that come along only every several years.

Yet, the president shows absolutely no daring, no creativity, no imagination. He selected his Supreme Court nominee the same way he picked his Vice-President, which is to say, he picked the person he charged with helping him find candidates!

Michael McConnell needs to make sure he gets a spot on the selection committee next time around. Then, he'll have a shot.

Force the Argument on Judges

A debate on constitutionalism is the absolute key to objections about the Miers nomination.

Even if she IS a strong conservative, we will not get the national debate over constitutionalist judges that we want.

If this nomination is made in fear of a fight over someone stronger or more obvious, then it has been made wrongly. The desire for constitutionalist judges is greater now than before. There is no reason to shrink or compromise or sneak through a stealth candidate. We should nominate Luttig or McConnell and build a little national interest.

Question: will the GOP run stronger after waging a tough battle to nominate a top-drawer judicial conservative or after sending up someone Dusty Harry likes? I think we all know the answer.

The Republican party cannot hurt itself by pushing judicial conservatives or by forcing Democrats to attack them. If moving the base is the key, Bush and Co. have made a bad, bad move.

National Review Gives up on Bush

Referring to the Meirs nomination as an "unforced error," David Frum, heretofore one of the Bush administration's strongest supporters in the press, writes on National Review Online that George W. Bush's legacy as president will largely be one of missed opportunities, of failure:

Again and again, George Bush has announced bold visionary policies--and again and again he has entrusted the execution of those policies to people who do not believe in them or even understand them. This is most conspicuously true in foreign policy, but it has been true in domestic policy as well. The result: the voice is the voice of Reagan, but too often the hands are the hands of George HW Bush.

Or worse. George H. W. Bush made his bad appointments in the name of replacing Reaganite "ideology" with moderate Republican "competence." He didn't live up to his own billing, but you can understand his intentions. But the younger Bush has based his personnel decisions upon a network of personal connections in which competence does not always play the largest part.

The idea that conservatives now see Bush the Younger as even worse than Bush the Elder is quite stunning.

Harriet Miers for the Court

We have the president's pick for the Supreme Court and it's . . .Harriet Miers.

Could this be a less inspired choice? I mean, c'mon, Michael McConnell and Mike Luttig are still out there! Not to mention Edith Jones, Edith Brown Clement, Janice Rogers Brown, etc.

Something else that troubles me a bit is that the future Justice Harriet contributed money to Al Gore, Lloyd Bentsen, and the DNC. That's two Democratic Senators and the central headquarters of perdition!

In Ms. Miers' defense, I might add that the contributions in question were from the 1980's and that she has been more GOP oriented since that time. The donation schedule looks very Texas lawyer-ish and that's what she is.

We'll just have to wait and see. I'm a little worried we're in GOP/Rockefeller country where the country club conservatives rule over us rank and file heart and soul types while speaking comforting words.

Sunday, October 02, 2005

Adam-ant And Eve-olutionary

Tomorrow night at sundown begins Rosh Hashanah, the Jewish holiday that celebrates the anniversary (according to tradition) of the emergence of Adam and Eve as sentient beings, exactly 5766 years ago.

In light of that, it seems appropriate to take a moment to express gratitude for the tremendous strides taken in the past year by the movement pressing for recognition of the concept of Intelligent Design.

Their victories have been widely noted, but perhaps more important than those is the fact that the strategy has been successful in "winning even when they lose". By this I am referring to the fact that a great many Evolutionists, in their effort to stave off the onslaught of this new challenge to their orthodoxy, have begun to use the following defense: "Intelligent Design addresses a philosophical question on which Evolution is silent. Evolution addresses a scientific question on which Intelligent Design is silent. Therefore I.D. has no place in the Science classroom."

When they win with that argument they score only a Pyrrhic victory. They are surrendering the main bludgeon that has been used against religion for a century and a half, namely the fact that its central premise is contradicted by Evolution. Think about it.