Since Everyone Else Is Linking It...

Julian Sanchez | October 5, 2005

...why should Hit and Run be exempt? George Will's Washington Post op-ed on the Harriet Miers nomination is utterly brutal and precisely on-point:

[There] is no reason to believe that Miers's nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists[....]

It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.

Comments

|10.5.05 @ 7:58AM|#

When George Will's right, he's REALLY REALLY REALLY right.

He knocked this one out of the park.

|10.5.05 @ 8:06AM|#

I learned ages ago that the definition of a judge is:

A lawyer with a politician for a friend.

Now this is unfair, however:

Q -- What do you say to a lawyer with an IQ of 50?
A -- "Yes, Your Honor."

Funny, but (and I am being sincere here) unfair.

-- signed by me, a chronically underachieving SMU law graduate who nevertheless finds the ongoing disparagement of a rank 52 school brutally unfair

|10.5.05 @ 8:10AM|#

Today's New York Times has an article about her. Here's one quote I found particularly telling: even though she said gays should have the same civil rights as others in society, she stopped short of endorsing a repeal of a Texas law criminalizing gay sexual activity.

Personally, I prefer an open bigot to a bigot in denial.

|10.5.05 @ 8:25AM|#

I personally am getting tired of all this winking.

"Trust me" wink wink "She's a conservative" wink wink

It's like clouds. They're so ill-defined, anyone can make what they want out of them. I guess that's what passes for politics.

|10.5.05 @ 8:30AM|#

Actually, Mr. Nice Guy, from what little information I gleaned from the New York Times article, Miers certainly isn't a "conservative" by the standards of forty years ago (nobody is), but she certainly fits today's standard of a conservative--she doesn't like abortion, and she's "compassionate" in that she pays lip service to equal rights for gays, but not so compassionate that she'd suggest repealing a law which puts them in prison for private, adult, consensual sex.

Modern "conservatism": boo to individuality, boo to individual rights, yay to spending way too much time worrying about the sex lives of others.

Barry Goldwater needs to rise from the dead and sue these people for defamation.

|10.5.05 @ 8:30AM|#

I think this is my favorate summation "while it bothers me that the President keeps putting his friends into positions they're not qualified for, it bothers me more that the President doesn't have brilliantly qualified friends."

from http://jeremyblachman.blogspot.com

|10.5.05 @ 8:38AM|#

I'm not going to be positive nor negative toward her based on her qualifications, however I would second what Alexander Hamilton said about her.
Maybe George Will could write a whole 'nother column from that perspective.

|10.5.05 @ 8:44AM|#

If she gets the spot, I wonder if the Supreme Court will reconsider some of its decisions of the past few years? On the bright side, they might strike down the Kelo decision, but I'm also concerned that they'd also strike down decisions like "Lawrence v. Texas."

Adam|10.5.05 @ 9:06AM|#

But the "conservatives" will no doubt find a way to uphold Raich, Jennifer.

|10.5.05 @ 9:18AM|#

Ouch. I'm starting to feel bad for her.

|10.5.05 @ 9:25AM|#

vrimj said,

"I think this is my favorate summation "while it bothers me that the President keeps putting his friends into positions they're not qualified for, it bothers me more that the President doesn't have brilliantly qualified friends."

Why should that bother anyone? When you're a powermongor with an obvious self-esteem problem, how better to inflate your ego and make yourself look better, than to surround yourself with people lesser than yourself---an especially tall order for GWB.

All he needs is Karl & Dick. The rest could be drooling nutcases.

|10.5.05 @ 9:28AM|#

And the actual chance that the Senate will vote down the Miers nomination is what? 50:50? 1:9? 1:100? Bets, any?

|10.5.05 @ 9:31AM|#

Joe,

Why feel bad for her? Being an architect with no legal experience, I'm grossly unqualified to sit on the SCOTUS bench. If I were nominated, why should anyone feel bad for me when the flames come? She certainly could refuse the nomination if her feelings are really that fragile. This is too important to be concerned about anyone's feelings. You want someone to feel bad for? Try this woman.

|10.5.05 @ 9:34AM|#

Don't worry, Evan, I'm a liberal. I can feel bad for more than one person at the same time. ;-)

|10.5.05 @ 9:36AM|#

It's nice to see Will show sporadic bouts of raw brilliance and common sense...

Under the rubric of "diversity" -- nowadays, the first refuge of intellectually disreputable impulses -- the president announced, surely without fathoming the implications, his belief in identity politics and its tawdry corollary, the idea of categorical representation. Identity politics holds that one's essential attributes are genetic, biological, ethnic or chromosomal -- that one's nature and understanding are decisively shaped by race, ethnicity or gender. Categorical representation holds that the interests of a group can be understood, empathized with and represented only by a member of that group.

Lower the boom, goddamnit! Hell yeah.

I especially like how the Woman's Alliance tried to explain that this nomination wasn't gender-based...um, because, well, Roberts was "officially" Sandra Day's replacement, so, uh, this nomination has nothing to do with gender. Ha.

|10.5.05 @ 9:37AM|#

Joe: touch�!

|10.5.05 @ 9:39AM|#

I just regained some respect for George Will. The sad thing is that she will be confirmed, with nary a peep from the Republicans.

MP|10.5.05 @ 9:40AM|#

And the actual chance that the Senate will vote down the Miers nomination is what? 50:50? 1:9? 1:100? Bets, any?

Intrade contracts give her current odds of confirmation as around 75%.

|10.5.05 @ 9:41AM|#

I really wish Bush put Janice Brown up. This would've obviously embiggened the Democrat's opposition effort, and libertarianism would've taken another beating, but the fireworks would've been fun.

This granny goth broad is boring.

|10.5.05 @ 9:42AM|#

I disagree, Number 6. Republicans don't like her on the merits, and Bush is tanking. This is when we see them start to run away from Bush with an eye towards 2006 and 2008.

|10.5.05 @ 9:45AM|#

Sorry about the multiposts, but, after re-reading the Will paragraph above, I think I might disagree that Bush actually believes that, quote, "the interests of a group can be understood, empathized with and represented only by a member of that group." Bush plays identity politics strictly for political correctness points, to score approval ratings and votes for his "compassionate conservatism" joke.

It reminds me of that Seinfeld ep where George's boss, who's black, thinks that George is racist/stereotyping. So, he goes out and tries to befriend various black people, in a vain attempt to show his boss that he "has black friends". Bush's identity politics is equally transparent.

|10.5.05 @ 10:03AM|#

Joe-I wish I could agree, if only becaue I'd like to see W get his nose bopped for his hubris. I think, however, you're underestimating the importance of loyalty to the Republicans. Remember, to them, dissent is but a breath away from treason: if not to the nation, then to the movement. I'd be more than willing to stake a fair chunk of money on her chances, and just as willing to bet that she will be confirmed with very little dissent from the Republicans.

|10.5.05 @ 10:05AM|#

Ideology or Idiotology: You Be The [Born Again] Judge...

|10.5.05 @ 10:13AM|#

Don't worry, Evan, I'm a liberal. I can feel bad for more than one person at the same time. ;-)

Cheers, joe. That made me smile.

I'm feeling kind of bad for her too. I've tried to be very neutral about the whole thing until we at least could hear the woman speak her mind.

But...damn, Will's made some very good points!

The Wine Commonsewer|10.5.05 @ 10:16AM|#

Dude, that George Will is HARSH.

The problem that most people have, at least initially, is that they truly don't really know if Meir is any more or less qualified than, say, Roberts.

What kind of put me off of Meir was when someone told me she's never been a judge. Then I started thinking about some of the court appearances I've had and judges I've seen in my day and shrugged my shoulders and thougt, okay, so she hasn't been a judge.

But in the end, we're all stuck sifting through commentaries like Will's in order to come to some kind of a conclusion. But then again, even the Mighty Righty, Rush Limbaugh is agin her. That's gotta do some damage, eh?

Frankly, anybody posting on this board could do a better job on the Supreme Court than 90% of anyone who has ever sat there, so qualifications are meaningless to this doddering old fool.

My two cents (waiting for change) regards, TWC

|10.5.05 @ 10:16AM|#

Nice line, joe.

I also agree that this confirmation might not be a slam dunk, for basically the same reasons as joe. I expect there will be increased distancing from Bush as the 2006/08 elections approach. At this low point in his presidency, it's just amazing that he nominated somebody like this, and I just think this goes too far. NOBODY likes this decision. Well, Hugh Hewitt, but nobody else.

|10.5.05 @ 10:18AM|#

I know what the general view is out there, but up until now, I have never seen evidence that this president is singularly incompetent compared to anyone else. I never thought he was great, and I found myself defending him against what were really ludicrous accusations on more than one occasion. I don't think the Iraq thing is as clearly negative a concept as many seem to, I don't think any federal administration would have been in much better shape in NO given lack of local preparation, I don't think the Rumsfeld concept of modernization is a bad thing, and I really think that the whole bit about his appointing yes men has been overblown (as though Clinton surrounded himself with conservatives for balance, for example) up to this point.

That is, up to this point. To me, you have here a last term president who has nothing personal to lose. He is supposed to be the ideologue. He had an opportunity to nominate two justices - one of them Chief. He had two chances to grab any one of a dozen well respected legal scholars that could help mold court opinion and that most of us here could live with. If you want to break with the notion of a sitting judge, fine. Go to a respected theorist.

Many of you guys might laugh at me, but appointing an obviously unqualified crony to a lifetime seat on the SCOTUS is, by far, the worst action this administration has ever taken. I am shocked by the emptiness of the choice. There is no thought to influence court thinking, there is no thought to invigorate constitutional principles, there isn't even gross political calculation in that she has no appeal for the base of his party. There isn't even the Dem favorite "Don't rock the boat." There is nothing but blatant cronyism. This is really shocking to me. F- him. F-him a lot.

Timothy|10.5.05 @ 10:33AM|#

Barry Goldwater needs to rise from the dead and sue these people for defamation.

Jennifer: If only, I'd vote Zombie Goldwater for President.

|10.5.05 @ 10:33AM|#

We can complain all we want, but it doesn't matter if we don't contact our Senators.

I'll be contacting mine in the next week.

|10.5.05 @ 10:45AM|#

i'd write my senator to complain, but i lost my checkbook

R C Dean|10.5.05 @ 10:49AM|#

I'm from Texas, and the chance that either Texas Senator will vote against this woman approaches absolute zero.

|10.5.05 @ 10:49AM|#

I'm feeling pretty good about Senators Kerry and Kennedy on this one, t.

drf|10.5.05 @ 10:51AM|#

Joe:

know exactly what you mean - Obama and Durbin are slam dunks. And considering Durbin's opinions on the FPOe in Austria, he's bound to be well informed.

RC: thought you were in cheezland. Russ Feingold and ... Sensenbrenner? blush. i don't know who the second one is... blush. apologies to cheezland to the north.

|10.5.05 @ 10:56AM|#

RC-

I seem to recall that you practice law in TX, no? If so, do you know how she's generally regarded in the TX legal community?

|10.5.05 @ 10:57AM|#

I'm honestly baffled by why it is the Miers nomination that's finally caused a number of conservatives to wake up to the fact that Bush doesn't particularly care about traditional conservative issues (e.g., small government, federalism, etc.). Where have these people been for the last 4-and-a-half years?

|10.5.05 @ 10:58AM|#

drf,

Herb Kohl.

You'd know that, if you weren't a smelly, cheating White Sox fan.

drf|10.5.05 @ 11:04AM|#

Joe:

LOL. holy shit that was funny. :)

actually: was at the new cell for the first time a few weeks ago (was there in 1999 and 2000 in the "prerenovated" stadium - terrible).

many of the fans (2005) resembled people who were too cheap to cough up the $20 to go to the state fair. it was like being around a bunch of little kids. happy one minute. booing the next. but there's this myth of the silent, die hard sox fan that is so loyal. [jim rome] "hilarious" [/jim rome]

and, "smelly, cheating" is redundant :) (heh heh heh)

that's right. Herb Cabbage. (blush).

|10.5.05 @ 12:04PM|#

Barring a videotape of her screwing a horse she's a shoe-in.

thoreau,

Well, she was head of the Texas ABA and there were efforts to get her to be head of the ABA as a whole. She was (is?) pretty heavily involved in some of the committees of the national body as well.

Anyway, I don't see her nomination being any less egregious than say Justice White's nomination (who was like her, a big time corporate lawyer).

|10.5.05 @ 12:06PM|#

...more egregious...


As far as I can tell much of the flap has occurred because folks don't have a good feel for the history of who has been nominated to the Court.

|10.5.05 @ 12:13PM|#

Barring a videotape of her screwing a horse she's a shoe-in.

Anybody good at Photoshop?

|10.5.05 @ 12:15PM|#

Hakluyt,

Of course you're right, and similarly-underwhelming people have been appointed to the court. But not recently. Not under Bush, not under Clinton, not under Old Bush, not under Reagan - I think you have to go back to Nixon or even Johnson.

You're argument would be stronger if you could point to some other recent nobodies who've been nominated. In my mind, that's "the bad old days," something remembered along with dead people voting by the thousands in Chicago.

|10.5.05 @ 12:21PM|#

joe,

She's only a nobody if you think that making you a Circuit Court judges makes you somebody. BTW, Justice O'Connor from that standpoint was as much of a nobody as she is.

|10.5.05 @ 12:23PM|#

Meirs is a well known figure in many areas of the legal life, she's just not part of the priesthood of judges.

|10.5.05 @ 12:24PM|#

I am shocked by the emptiness of the choice. There is no thought to influence court thinking, there is no thought to invigorate constitutional principles, there isn't even gross political calculation in that she has no appeal for the base of his party.

There is, however, the benefit of having a close personal friend or two on the SCOTUS if/when the lawsuits build up over PATRIOT, Katrina, Plame, etc. Cronyism isn't always (or even usually) a matter of getting nice stuff for your friends. It's about security. Much like Clinton's raft of pardons at the end of his term, this nomination has a criminal stink to it.

Dave W.|10.5.05 @ 1:06PM|#

There is, however, the benefit of having a close personal friend or two on the SCOTUS if/when the lawsuits build up over PATRIOT, Katrina, Plame, etc. Cronyism isn't always (or even usually) a matter of getting nice stuff for your friends. It's about security.

There is also such a thing as recusal, as you and Harriet may find out if she get appointed.

More specifically, I think our friends the Dems do a switch in time to save Roe v. Wade (my strong suspicion is that Miers will *not* vote to overturn R v. W and the key Democrats know that and that is why she was picked). If Democrats do vote to confirm, well, you heard it here first. you can already see Joe starting to soften up above and there is the Reid thang, so . . .

|10.5.05 @ 1:11PM|#

Also, though I think that there are a lot of people more qualified than her, one who happens to be a judge, I do not think this falls outside the historical range of acceptable candidates.

|10.5.05 @ 1:21PM|#

Jason: my thoughts exactly. Except that my F--- him moment came when he signed McCain Feingold.

And I incline to Hakluyt's view as well (there's a new one!) She's spent her life as a working, practicing litigator. She's not a nobody, she's just not a pointy headed theorist; she's been living in the real world.

I think this is a good defense of Miers, and this, from a few months ago, is a good summary of what's wrong with a SC composed solely of academics and theorists with no real world law experience.

And honestly, I think one of the reasons both left and right are so pissed off is that they were spoiling for a good old dirty nationally televised monthlong mudfest and they've been cheated of it. I also think Bush is saying "F--- you all" to the Dem Senators who spent a week trying to get Roberts to Oprahfy himself for them. It's obvious that the Senators, both Republican (who do anything Bush asks them to) and Democrat (who either won't consent to anything Bush wants or will eventually but first have to pose for the cameras a while) are incapable of seriously advising on something this important.

I do like seeing an SMU grad and the former head of a major Dallas law firm referred to as a "nobody," but that's just my anti-Dallas prejudice showing.

Dave W.|10.5.05 @ 1:25PM|#

Generally speaking and in my limited experience, you get to be head of a major law firm by being better at politics than law.

|10.5.05 @ 1:51PM|#

Cronyism is one thing, but why her? She's apparently not socially conservative enough to please the far right, she's not traditionally experienced enough to please the moderate Republicans, and she's a Bush nominee so the Dems are automatically out for blood anyway. Playing favorites is a time honored Presidential tradition but, again, why her? Surely Bush has many acceptable cronies to pay back and a few of them must be acceptable to some faction of the party. She just seems like such a non-sequitur that simple cronyism doesn't cut it as a real explaination.

|10.5.05 @ 1:57PM|#

"Meirs is a well known figure in many areas of the legal life, she's just not part of the priesthood of judges."

She is? I am uninformed here, but I keep hearing Will's claim repeated that she would not have been on anybody else's list. Has she written anything?

|10.5.05 @ 1:58PM|#

I think the odds of her getting approved are 100%, barring any shockers. She clearly hasn't got the resume or reputation of a Supreme Court appointee, but that doesn't necessarily mean she isn't qualified. It does mean that she should be rejected, since it makes it impossible for the Senate to determine her qualifications.

I think Reason's own Tim Cavanaugh made a great point yesterday - she's the one explaning the whole process to Bush, so she probably seems to know a whole lot about it to him. She's been explaning the role of the Supreme Court, and the various judicial philosophies to him, all of which is probably entirely new to him. In his mind, she's probably a great pick. I doubt it occurs to him that it's cronyism.

It's shallow and stupid, but then again so is 90% of what goes on in the government. I don't see this as any especially egregious transgression.

The conservative backlash is caused by the fact that so many have been waiting for these picks for so long. A lot of people have been holding out for this, saying "well that Medicare bill was a disaster, but at least we'll get conservative judges." I don't think it's any surprise that Bush didn't send up a conservative judge, given the way they've made all of their decisions except for the Iraq war.

|10.5.05 @ 2:01PM|#

There is also such a thing as recusal, as you and Harriet may find out if she get appointed.

Recusal for SCOTUS judges is voluntary. Going back to this winter...

from http://slate.msn.com/id/2094876/
"Justice Scalia should step aside in Duckgate, regardless of what's in his heart, because it's a terrible mistake�especially in a landmark case about cronyism and special influence�to allow the appearance of cronyism and special influence to taint what must be a completely fair decision. But it should remain Scalia's decision whether to do so or not. If he cannot be trusted to make it, he cannot be trusted to decide anything."

Unlike the writer of this article, I do not trust the leaders of this administration or its close confidants to do anything that contradicts the personal interests of its high-ranking members. If the hypothetical lawsuits come through and Miers recuses herself, then I will be happy to have been wrong.

Dave W.|10.5.05 @ 2:11PM|#

If the hypothetical lawsuits come through and Miers recuses herself, then I will be happy to have been wrong.

The other 8 justices will have a lot to do with whether Miers (and maybe Roberts) need to recuse themselves. I actually hold out hope for institutional integrity from the Court on this point, but your pessimism is way understandable.

|10.5.05 @ 2:12PM|#

"The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest."

As G.Will points out SCOTUS judges should have to have an intimate knowledge of the constitution and constitutional law. Her resume might show knowledge of litigation practice areas, practice planning, the support of state ABA membership, and lotto management. Where can we see that she knows any more about the constitution then any moderately successful lawyer.

At the very least the confirmation process should be used to flush out her expertise in understanding the constitution.

Ohhh and I would write and call my Senator but I don't have one.

|10.5.05 @ 2:59PM|#

anyone know how bad the hazing is for new Supreme Court justices? I was thinking about pledging, but I don't know...

|10.5.05 @ 3:09PM|#

Anyway, have a nice couple of weeks ladies and gents. I won't be gracing the Atlantic shores for a while.

Wild Pegasus|10.5.05 @ 3:21PM|#

Zombie Goldwater: A government big enough to give you everything you want is also big enough to eat your tasty brains.

- Josh

|10.5.05 @ 4:00PM|#

Randolph-

Justice Breyer said in a talk on CSPAN that when they were deliberating he had to sit in the chair closest to the door and answer it. I know he was joking, but still.

It will be weird for Roberts, being the Chief but also the new guy. Do they still get to haze him? Or does that mean they haze him twice as bad?

Fortunately for him, there will soon be a new pledge to haze. Even if the Senate doesn't confirm Miers (they probably will, but I'm just saying) you know that at some point SOMEBODY will be confirmed, and then the Supreme Court goat can be brought out for the next round of hazing...

|10.5.05 @ 5:19PM|#

[There] is no reason to believe that Miers's nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places

I find it amusing that George Will doesn't think 100 lists of good Supreme Court candidates from 100 people of good judgement would overlap at all. How many lawyers and judges are there in America, and is he inadvertently hinting that they're so uniformly bad that any random choice would be equivalently poor?

Or maybe that's just my amused interpretation.

|10.5.05 @ 5:24PM|#

Eric-

He refers to 10,000 places, not 10,000 names. I think his opinion was that she wouldn't even show up once in those 10,000 slots, let alone multiple times.

|10.5.05 @ 5:54PM|#

Zombie Goldwater-In your heart, you know brains are tasty.

|10.5.05 @ 6:51PM|#

I find that George F. Will has a need to get a bug up his ass once in a while, and this Miers nomination seems to be his latest attack of that.

I think the problem Miers seems to be having is that she's kind of spectacularly unspectacular. This nomination seems to be the one that all the politicos want for their wish list, and it seems that with Miers nobody is really getting who they want. The conservatives want another Scalia and the Democrats want a nominee who'll let them feel justified in drawing blood. It looks to me like Bush has spoiled all their parties, intentionally or not.

I wonder if Bush doesn't really think of the Congress as a collection of children. They want candy and cake for lunch and Bush, the adult, is bringing them instead...a tuna fish sandwich.

|10.5.05 @ 7:03PM|#

Anyway, have a nice couple of weeks ladies and gents. I won't be gracing the Atlantic shores for a while.

Bon voyage!

|10.5.05 @ 7:19PM|#

Anyway, have a nice couple of weeks ladies and gents. I won't be gracing the Atlantic shores for a while.

Have a good one Hakluyt. ...and don't let the theists getcha! ; )

|10.5.05 @ 7:50PM|#

Hak, don't forget that without me there wouldn't be any GPS guidance on your plane.

And the laser in your portable DVD player? I did that theory in my spare time.

drf|10.5.05 @ 9:09PM|#

good, safe trip, buddy!

drf

|10.5.05 @ 9:52PM|#

dakota,

apparently to you the constitution is something strange and mysterious, kabalaesque if you like, but to most who have read it, i think we don't need an institution to interpret it to obtain an arguable position.

|10.5.05 @ 9:53PM|#

May God give you mercy, not justice, in your travels... ;-)

|10.5.05 @ 10:16PM|#

Hakluyt,

"She's only a nobody if you think that making you a Circuit Court judges makes you somebody." No no, SERVING as a Circuit Court judge makes you somebody. It's the experience.

"BTW, Justice O'Connor from that standpoint was as much of a nobody as she is." Wasn't she the longtime speaker of her state's House of Representatives?

Though you are correct, I do seem to be defining "qualified" more strictly than most people. Heck, I wrote that Roberts wasn't qualified to be Chief, and should have been named as an Associate!

As far as "historical" goes, I repeat my "bad old days/Ward Boss" argument.

|10.5.05 @ 10:22PM|#

"She's been explaning the role of the Supreme Court, and the various judicial philosophies to him, all of which is probably entirely new to him. In his mind, she's probably a great pick. I doubt it occurs to him that it's cronyism."

Wow, and here I thought JDM was just a troll! That's very insightful. It also explains how Condaleeza Rice ended up as National Security Advisor. Because she was the one giving him his security briefings - presto, she must be the smartest security advisor in the world. I recall it being reported that she was chosen because she could make Bush understand issues.

|10.6.05 @ 7:36AM|#

I wonder if she uses sock puppets to explain things. That would be cool if she did that on the bench..