OK, I lied. But I promise, this is the last Miers post. Hugh thinks this post is "simply brilliant." Let's see:
President Bush is a politician trained in strategic thinking at Harvard Business School, and schooled in tactics by experience and advice, including the experience and advice of his father, whose most lasting political mistake was the nomination of David Souter. The nomination of Harriet Miers to the Supreme Court shows that he has learned his lessons well. Regrettably, a large contingent of conservative commentators does not yet grasp the strategy and tactics at work in this excellent nomination.
Please help me, because I don't grasp the excellence, the tactics nor the strategery.
There is a doom-and-gloom element on the Right which is just waiting to be betrayed, convinced that their hardy band of true believers will lose by treachery those victories to which justice entitles them. They are stuck in the decades-long tragic phase of conservative politics, when country club Republicans inevitably sold out the faith in order to gain acceptability in the Beltway media and social circuit.
As Henry Kissinger might say, "Just because I'm paranoid doesn't mean they're not out to get me." The fact is, the "country-club" Republicans do "sell out the faith in order to gain acceptability" because they don't share the same faith that the conservatives do. If I need to list examples for you, then you just haven't been paying attention for the last 25 years or so.
Many on the right already are upset with the President already over his deficit spending, and his continued attempts to elevate the tone of politics in Washington in the face of ongoing verbal abuse by Democrats and their media allies. They misinterpret his missing verbal combativeness as weakness.
No, I interpret his lack of self-defense as hubris and an inability to articulate a coherent message.
There is also a palpable hunger for a struggle to the death with hated and verbally facile liberals like Senator Chuck Schumer. Having seen that a brilliant conservative legal thinker with impeccable elite credentials can humble the most officious voices of the Judiciary Committee, they demand a replay. Thus we hear conservatives sniffing that a Southern Methodist University legal education is just too non-Ivy League, adopting a characteristic trope of blue state elitists. We hear conservatives bemoaning a lack of judicial experience, and not a single law review article in the last decade as evidence of a second rate mind.
I don't give a rat's behind where a nominee went to school, but I'd like to see some evidence of deep though on his part about the Constitution and the proper role of the judicial branch. It would be nice to see some prior display of interest and aptitude for his new career.
These critics are playing the Democrats’ game. The GOP is not the party which idolizes Ivy League acceptability as the criterion of intellectual and mental fitness. Nor does the Supreme Court ideally consist of the nine greatest legal scholars of an era. Like any small group, it is better off being able to draw on abilities of more than one type of personality. The Houston lawyer who blogs under the name of Beldar wisely points out that practicing high level law in the real world and rising to co-managing partner of a major law firm not only demonstrates a proficient mind, it provides a necessary and valuable perspective for a Supreme Court Justice, one which has sorely been lacking.
I'm not sure what's being argued here. I'd love to have Beldar on the Court, but he wasn't nominated. Yes, all these accomplishments are signs of a smart person. Let's see… I have Ph. D. in physics and was able to change careers to become a darn good software engineer after age 40. I've not only demonstrated that I'm smart, but also that I can learn a new job. Put me on the Court! I can handle all the issues relating to condensed matter physics, small-angle neutron scattering and object-oriented software design. I can play all the necessary guitar solos, too. As an added bonus, I play a pretty mean game of softball. What's that? All those things are irrelevant to serving on the Supreme Court? Well, so is running a law practice.
Ms. Miers has actually managed a business, a substantial one with hundreds of employees, and has had to meet a payroll and conform to tax, affirmative acttion, and other regulatory demands of the state. She has also been highly active in a White House during wartime, when national security considerations have been a matter of life and death. When the Supreme Court deliberates in private, I think most conservatives would agree that having such a perspective at hand is a good thing, not a bad thing.
Yes, not a bad thing, just not the most important thing. It's sort of like saying that the pitcher's got a 60 mph fastball, but he covers first base well on a grounder to the right side.
Other conservatives are dismayed that the President is playing politics (!), rather than simply choosing the “best” candidate. But the President understands that confirmation is nothing but a political game, ever since Robert Bork, truly one of the finest legal minds of his era, was demonized and defeated.
So? Is it too much to ask for GWB to try to do something to improve the process, or do we just submit to how the Democrats have sullied it and make baldly political appointments instead of trying for excellence?
The President’s smashing victory in obtaining 78 votes for the confirmation of John Roberts did not confirm these conservative critics in their understanding of the President’s formidable abilities as a nominator of Justices. Au contraire, this taste of Democrat defeat whetted their blood lust for confirmation hearing combat between the likes of a Michael Luttig or a Janice Rogers Brown and the Judiciary Committee Democrats. Possibly their own experience of debating emotive liberals over-identifies them with verbal combat as political effectiveness.
Let's not judge my motives and I won't judge yours, OK? I wanted the battle because it's an argument that needs to be made, a battle that needs to be joined and won. We had the chance to reestablish the proper role of the judiciary. I am afraid that chance may be lost.
Rather than extend any benefit of the doubt to the President’s White House lawyer and counselor, some take her lack of a paper trail and a history of vocal judicial conservatism as a sign that she may be an incipient Souter. They implicitly believe that the President is not adhering to his promise of nominating Justices in the mold of Scalia and Thomas.
He has broken his promise. Scalia and Thomas were recognized constitutional scholars. Miers is not.
The obvious differences between Souter, a man personally unknown to Bush 41, and Miers, a woman who has known Bush 43 for decades, and who has served as his close daily advisor for years, are so striking as to make this level of distrust rather startling. Having seen the Souter debacle unfold before his very eyes, the President is the last man on earth to recapitulate it.
We can hope, but is nominating someone with no established judicial philosophy the best way to avoid another Souter? Actually, I'm less worried that she'll be a Souter than an O'Connor: an intellectual lightweight with little influence on the Court and no discernible philosophy.
He anticipates and is defusing the extremely well-financed opposition which Democrat interest groups will use against any nominee. Yes, he is playing politics by nominating a female. A defeated nominee does him and the future of American jurisprudence no favors.
That's right, but why couldn't this have been done by boldly nominating another highly-qualified conservative like Owen, Jones, Garza, Dinh, Estrada or Brown? If we have to play identity politics, can't we at least do it well?
By presenting a female nominee, he kicks a leg out from under the stool on which the feminist left sits. Not just a female, but a career woman, one who has not raised children, not married a male, and has a number of “firsts” to her credit as a pioneer of women's achievement in Texas law. Let the feminists try to demonize her.
They'll find a way if they want to. She's a conservative Evangelical; that should be enough for them.
If they do so, almost inevitably, they will seize on her religious beliefs and practice. Some on the left will not be able to restrain their scorn for an evangelical Christian Sunday school teacher from Dallas, and this will hurt them. They will impose a religious test against a member of a group accounting of a third of the voting base. Speculation on her being a lesbian has already started. "She sure seems like a big ol' Texas lesbian to me," as one of the Kos Kidz put it.
They are going to make themselves look very ugly.
They were going to do that anyway. Why not let them do it over Luttig, McConnell, Owen, Jones, Garza, Dinh, Estrada or Brown? Why do the stakes have to be so low?
The President must also prepare himself for a possible third nominee to the Court. With the oldest Justice 85 years old, and the vagaries of mortality for all of us being what they are, it is quite possible that a third (or even fourth) opportunity to staff the Court might come into play. Defusing, demoralizing and discrediting the reflexive opposition groups in the Democrats’ base is an important goal for the President, and for his possible Republican successors in office.
Another lesson from baseball: don't lose today saving someone for tomorrow's game. Tomorrow might be rained out or the game may be a blowout. Stevens may live to be 100 and he'll never resign with a Republican in the White House. Ditto for Ginsburg and Breyer.
Then there is the small matter of actually influencing Supreme Court decision-making.
It's not a small matter. That's why nominating a lightweight is such a bad idea.
This president understands small group dynamics in a way that fewif any of his predecessors ever have. Perhaps this is because he was educated at Harvard Business School in a legendary course then-called Human Behavior in Organizations. The Olympian Cass Gilbert-designed temple/courtroom/offices of the Supreme Court obscure the fact that it is a small group, subject to very human considerations in its operations. Switching two out of nine members in a small group has the potential to entirely alter the way it operates. Because so much of managerial work consists of getting groups of people to work effectively, Harvard Business School lavishes an extraordinary amount of attention on the subject.
Maybe it would have been better to nominate an HBS grad to the Court, then.
One of the lessons the President learned at Harvard was the way in which members of small groups assume different roles in their operation, each of which separate roles can influence the overall function. The new Chief Justice is a man of unquestioned brilliance, as well as cordial disposition. He will be able to lead the other Justices through his intellect and knowledge of the law. Having ensured that the Court’s formal leader meets the traditional and obvious qualities of a Justice, and is a man who indeed embodies the norms all Justices feel they must follow, there is room for attending to other important roles in group process.
According to a source in her Dallas church quoted by Marvin Olasky, Harriet Miers is someone who
taught children in Sunday School, made coffee, brought donuts: "Nothing she's asked to do in church is beneath her."
As the court’s new junior member, the 60 year old lady Harriet Miers will finally give a break to Stephen Breyer, who has been relegated to closing and opening the door of the conference room, and fetching beverages for his more senior Justices. Her ability to do this type of work with no resentment, no discomfort, and no regrets will at the least endear her to the others. It will also confirm her as the person who cheerfully keeps the group on an even keel, more comfortable than otherwise might be the case with a level of emotional solidarity.
This is truly the lamest argument I've ever heard.
But there is much more to it than group solidarity, important though that ineffable spiritual qualty may be. Ms. Miers embodies the work ethic as few married people ever could. She reportedly often shows up for work at the White House at 5 AM, and doesn’t leave until 9 or 10 PM. I have no doubt that she will continue her extraordinary dedication to work once confirmed to the Court. She will not only win the admiration of those Justices who work shorter hours, she will undoubtedly be appreciated by the law clerks who endure similar hours, working on the research and writing for the Justices. These same law clerks interact with their bosses in private, and their influence intellectual and emotional may be more profound than some Justices might like to admit.
Don't any of the more-qualified nominees work hard, or are they too brilliant to need to? What's the point here?
The members of the Supreme Court all see themselves as serving the public and the law to the best of their abilities. Their self-regard depends on their belief in the righteousness and fairness of their deliberations. They must listen to the arguments of the other Justices. But their susceptibility to viewpoints they had not yet considered is matter of both an intellectual and emotional character. Open-mindedness uusally requires an unfreezing of deeply and emotionally-held convictions.
Good luck with that. Just open the door for Justice Breyer and fetch him some coffee and I'm sure he'll stop treating the Constitution as if it were a Rorshach test.
Having proven herself capable of charming the likes of Harry Reid, leader of the Senate Democrats, is there much room for doubt that Harriet Miers is capable of opening up opponents emotionally to hear and actually consider as potentially worthwhile the views of those they might presume to be their enemies?
I find her ability to charm Harry Reid more troubling than promising. Why don't you?
George Bush has already succeeded in having confirmed a spectacularly-qualified intellectual leader of the Court in Chief Justice Roberts. If conservatives don’t sabotage his choice, Harriet Miers could make an enormous contribution toward building Court majorities for interpretations of the Constitution faithful to the actual wording of the document.
Well, that's what we have to hope for, since she's likely going to be on the Court soon. Unfortunately, you haven't given me any reasons for hope here. I'm not drinking the Kool-Aid on this one. We were promised Scalia and Thomas and may have gotten Rehnquist and O'Connor. The Rehnquist part I can deal with.
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