Friday Miers Reactions

Following earlier posts, I'll begin with a comment I posted on SC&A:

Let me try this two-part proof:

1) Miers is not the most qualified potential nominee.

2) See # 1.

It's that simple. Don't over-complicate or -nuance the issue.

Big-time Federal and Constitutional law are as close to a meritocracy as anything in America. One First Street, NE, is no place for second-best. How can those who concede # 1 support Miers for the country's number one Court?

Next, the Wall Street Journal's Daniel Henninger:

For nearly 25 years, conservative legal thinkers have been building an argument that liberalism transformed the Court into an instrument of national policymaking more appropriate to the nation's legislative institutions. Roe v. Wade is the most famous of those policy decisions. And the most famous dictum justifying judicial policy innovation is Justice William Douglas's "penumbras formed by emanations"--from Griswold v. Connecticut.

Across these many years conservatives have been creating a structured legal edifice to stand against a liberal trend toward aggrandized federal power that began in the 1930s. Chief Justice William Rehnquist's "New Federalism," which devolves many powers back to the states, was one such example. Harriet Miers may share these reformist views, but her contribution to them is zero. Conservatives are upset because they see this choice as frittering away an opportunity of long-term consequence.

If instead the Senate had been given the chance to confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing, that vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to. In turn, Congress's imprimatur would follow the nominee onto the Court, into the judiciary and the law schools. A Miers confirmation validates nothing, gives voice to nothing.

David Limbaugh agrees in (the re-designed) TownHall:

Conservatives, by advocating the appointment of the best of the best, are not bowing to elitism or snobbery but recognizing the critical importance of justices. Constitutional jurisprudence, while not rocket science, is indeed a scholarly enterprise.

Some have said that as long as a justice votes "correctly," it doesn't make any difference how brilliant he or she is. But Supreme Court justices don't just vote. They analyze, discuss, debate and engage in the art of persuasion.

Most, if not all, of the liberal justices on the Court are intellectual heavyweights. When a vacancy on the Court occurs, the president has a solemn duty to nominate the best and the brightest. He should choose not only strict constructionists, but those who can hold their own against the liberal activist justices who are steadily rewriting the Constitution and removing, brick by brick, its foundation.

What conservative skeptics of the Miers appointment have been saying is that a pool of extraordinary conservative constitutional scholars exists, whose members have proven, through their legal careers, their unique qualifications and fitness for the position. While they don't doubt Miers has excellent character and, perhaps, even superior abilities, they don't see her -- at least at this early stage -- as possessing the optimum background to sit on the Court, compared to so many others.

After observing that "this Miers thing sure is putting me on the opposite side of the fence from a lot of bloggers I like," Patterico rejects Polipundit's notion that ideology matters, not brains or legal reasoning:

Wow. I couldn’t disagree more. To me, ideology does not trump all. I am an idealistic adherent to the rule of law, as John Roberts portrayed himself in his confirmation hearings. I believe that the Constitution means what it says, and should not be treated as a warrant for creating whatever rights are deemed necessary by philosopher-kings in black robes.

To the extent that Polipundit means “ideology” in the “rule of law” sense I have just described, I could at least understand that sentiment — though I still disagree with his suggestion that merit is irrelevant. I am a great admirer of Justices Scalia and Thomas. I certainly want to see their positions get more votes. . .

But the reason that we want to see more votes for the positions of Scalia and Thomas is because these Justices and their positions have such great persuasive force — because they have merit, and because their points of view are well thought-out. . .

And — even assuming Miers votes with Scalia and Thomas a lot — it’s an open question how she will vote when she isn’t voting with them. Will she take a boneheaded conservative position that is at odds with the Constitution — like Rehnquist did in Texas v. Johnson when he voted to uphold laws against flag-burning with a completely unpersuasive “just because” line of reasoning? Will she take weaselly middle-of-the-road positions like the Justices she is being compared to, like O’Connor and Powell?

Charles Krauthammer in Friday's WaPo:

It is particularly dismaying that this act should have been perpetrated by the conservative party. For half a century, liberals have corrupted the courts by turning them into an instrument of radical social change on questions -- school prayer, abortion, busing, the death penalty -- that properly belong to the elected branches of government. Conservatives have opposed this arrogation of the legislative role and called for restoration of the purely interpretive role of the court. To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.

There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous.

It will be argued that this criticism is elitist. But this is not about the Ivy League. The issue is not the venue of Miers's constitutional scholarship, experience and engagement. The issue is their nonexistence.

Moreover, the Supreme Court is an elite institution. It is not one of the "popular" branches of government. That is the reason Sen. Roman Hruska achieved such unsought immortality when he declared, in support of an undistinguished Nixon nominee to the court, that, yes, G. Harrold Carswell is a mediocrity but mediocre Americans deserve representation on the court as well.

To serve in Congress, or even as president, there is no requirement for scholarship and brilliance. For good reason. It is not needed. It can even be a hindrance, as we learned from our experience with Woodrow Wilson, the most intellectually accomplished president of the 20th century and also the worst.

But constitutional jurisprudence is different. It is, by definition, an exercise of intellect steeped in scholarship. Otherwise it is nothing but raw politics. And is it not the conservative complaint that liberals have abused the courts by having them exercise raw super-legislative power, the most egregious example of which is the court's most intellectually bankrupt ruling, Roe v. Wade? . . .

By choosing a nominee suggested by Senate Democratic leader Harry Reid and well known only to himself, the president has ducked a fight on the most important domestic question dividing liberals from conservatives: the principles by which one should read and interpret the Constitution. For a presidency marked by a courageous willingness to think and do big things, this nomination is a sorry retreat into smallness.

And lets move past the straw-man claim that conservatives favor government lawyers over private practitioners (to read it is to refute it), says Pejman Yousefzadeh at RedState:

I am not saying for one moment that private practitioners do not deserve elevation to the Supreme Court. But the issue isn't whether someone is a private practitioner or a sitting judge or an academic. The issue is what kind of skill sets does a nominee bring to the Court. In that respect, the consideration we are undertaking regarding Ms. Miers's nomination is similar to the consideration of any job applicant for a particular position.

Specifically, if a private practitioner has the requisite skill set for the Supreme Court, then the fact that he/she is a private practitioner should be no bar whatsoever. . . The bias is against private practitioners who do not bring the requisite skill sets to the Supreme Court. To illustrate the point, would you ask a specialist in toxic torts to structure a merger? Would you ask a corporate and securities specialist to defend a medical malpractice case? Would you ask a labor and employment lawyer to draft a complex will or set up a trust?

Surely not. You would go to specialists within the law for such things. So it is with the solicitation of private counsel. So it should be with the selection of Justices for the United States Supreme Court. Private practitioners need apply for seats on the Court. And so long as they have the needed skill sets, they should be considered.

Last, but not least, Miers was profiled by Legal Times in December 2004, as she replaced Attorney General-designate Alberto Gonzales:

Her critics say the problem goes beyond what Miers does or doesn't know about policy -- and right back to a near-obsession with detail and process.

"There's a stalemate there," says one person familiar with the chief of staff's office. "The process can't move forward because you have to get every conceivable piece of background before you can move onto the next level. People are talking about a focus on process that is so intense it gets in the way of substance."

One former White House official familiar with both the counsel's office and Miers is more blunt.

"She failed in Card's office for two reasons," the official says. "First, because she can't make a decision, and second, because she can't delegate, she can't let anything go. And having failed for those two reasons, they move her to be the counsel for the president, which requires exactly those two talents."

Does Miers's skill set stand up to any of the formulations above?

More:

It occurs to me that the foregoing (plus this) rebuts Beth at My Vast Right Wing Conspiracy who, for tactical reasons, asserts "Harriet Miers might be 'the most qualified' right now, for long-term strategy." Like Betsy, I wonder, 'where's the beef?'