At Least It Wasn't National Review

About the Alito nomination Hugh Hewitt notes:

I am astonished that Democrats and the lefty groups are already on the attack against the son of an immigrant and a public school teacher.

The good news is at least it wasn't National Review this time.

Samuel Alito seems to be a great choice. I look forward to the confirmation hearings.

George at Alamo Nation (Bush to Alito: "Samachu, I Choose You!") and Mike at Mike's America (October 31 posting) have fun both supporting Alito and poking at those who found lots of reasons to be against the President's last pick. I especially like Mike's photo of Alito's family standing in front of President Clinton's(!) portrait as a telling signal.

Mike also has an interesting post (October 30) about the possible basis for David Frum's intense campaign against Miers. Frum is now calling for Miers to be fired from her position in the White House even though no one, including Frum, ever indicated that she wasn't great in that position.

Frum's reasoning is:

It is clearly not sustainable for Harriet Miers to keep her job as White House counsel - an uncomfortable situation for all concerned. (OCT. 30, 2005: BAD WEEK)

Fortunately, Frum is not (yet) uncomfortable with Dick Cheney or Karl Rove (both of whom supported Miers). I wonder if anyone at NR will respond to Frum’s over-the-line personal pettiness.

So far I haven't heard of any anti-Miers critics admitting that they spoke for only a minority of conservatives. Is that sort of humble honesty too much to hope for?

But, it's time to allow them back in the trenches to fight for the President's nominees--even if it isn't quite kiss-kiss, hug-hug.

UPDATE: Though not directly taking Frum to task, both Andy McCarthy and Kathryn Jean Lopez of NR’s The Corner today underlined Miers’ professionalism and service in helping pick Alito.

The Wall Street Journal reports this morning that White House Counsel Harriett Miers was with the President over the weekend, helping him sort through the available choices and settle on a nominee for the Supreme Court seat that was dangled before her up until her honorable withdrawal last week.

That had to be a very hard thing to do, but judging from the apparent choice, she did it with her characteristic professionalism.

I don't know her, but she sure sounds like a class act. The President and the country should be grateful for her service. (Andy McCarthy)

DITTO WHAT ANDY SAID
She does strike you as gracious and uber-professional. And yeas, served her country well when all was said and done. The Saturday Night Live sketch on her annoyed me for exactly those reasons (among others). She strikes you as someone who didn't ask to be a SCOTUS judge, didn't ask to be outside the behind the scenes...hope her 15 minutes on Jay Leno, etc. is way over. (Kathryn Jean Lopez)

Good for them!

The Failure of the Conservative Pundits

What is perhaps most striking in the Gallup Poll numbers on Miers’ withdrawal regards the failure of conservative pundits. In spite of the three week campaign waged by a majority of conservative pundits against Miers, a clear majority of conservatives either were unsure (22%) or disappointed (44%) by her withdrawal. With all that fire power why did the pundits only garner 34%?

It’s clear that there was a major disconnect between the pundits and the conservative base. I can’t remember a time when the pundits were so united and the base was so resistant. (If any one has other examples, I would like to hear of them.)

One could make the caustic observation that the President understood his base better than the pundits, but more helpful is to note how fragile the nomination process is and how fragile the connect between pundit and rank and file might be.

The fragile nature of the nomination process in the Senate (where 40% can block a nomination) was mirrored in the conservative movement (where 34% blocked a nomination). Is the withdrawal of the Miers nomination a victory for the pundits on the order that the filibuster has been a victory for the Democrats? A nay-saying victory?

The fragile nature of the connect between pundit and rank and file may be a one-time problem because of the difficult nature of the withdrawal issue. The pundits were perceived by many as arguing against the position they had championed for years. They had their reasons but were unable to communicate those reasons well enough to win a plurality, let alone a simple majority.

Part of the problem was that anti-Miers pundits had only wisps and strands of argument. Their analysis was based on phrases (not full blown arguments) that Miers had written or spoken years before, on a lack of judicial or political writings, and the assumed disconnect between being a lawyer and counsel to the President and being a good Supreme Court Justice. The argument was almost from silence.

Another problem was the very idea of not giving a nominee a fair hearing. That went against common justice. Many conservative pundits argued that Miers should not even be given a hearing. And, of course, she was not. But the reasons for not getting a hearing were not immediately understandable to many conservatives. That she might do a poor job of presenting her case and embarrass herself and the President did not seem a compelling enough justification to deny Miers the opportunity for self-defense. If there were more substantial arguments, they were not clearly communicated.

The real question is not whether the President can get his base behind him. Apparently, it was there all the time. The real question is whether the pundits have damaged themselves to the extent that they cannot help muster the conservative unity and fervor needed to break filibusters against future nominees--not to mention defang attempts at borking.

Thanks, Hugh Hewitt!

The leader of the fight for fair hearings on Harriet Miers' nomination has been Hugh Hewitt. He has pressed his case while giving leading proponents urging her withdrawal an open microphone on his talk show to state their views. In fact, Hugh has probably given more time on his show to the anti-Miers position than his own pro-Miers position.

You can find a finely articulated summary of Hugh's argument in his op ed Why the Right Went Wrong in yesterday's New York Times.

Since some may have to register with NYT to view the op ed, I will try to summarize the main points for those who don't like the idea of registering.

1. The "up or down vote on presidential nominations" had a key role in electing the majority the Republicans now have in the Senate. But the fierce campaign by conservative pundits for Miers to be withdrawn has made it difficult to continue using the "winning argument: that Democrats have deeply damaged the integrity of the advice and consent process."

2. The use by the right of tactics previously used exclusively by the left ("exaggeration, invective, anonymous sources, an unbroken stream of new charges, television advertisements paid for by secret sources") has made it hard to effectively criticize those tactics in future nominations.

3. Fortunately not all conservative pundits used those tactics and no Republican senator called for Miers' withdrawal. Thus, there is still a basis for the continuing fight for a fair nomination process. "But the Democrats' hand has been strengthened."

4. Because it worked in Miers' case, the next nominee, no matter how well qualified, "will face an instant and savage assault." The ground has also been laid for a filibuster justified by "special circumstances". And how many good candidates will refuse to subject themselves to the withering critique sure to come?

A White House counsel with distinguished credentials was compared to Caligula's horse and Barney the dog on National Review's Web site. George Will denounced as "crude" those evangelicals who thought Ms. Miers's faith was a good indication of character in a nominee and a hopeful sign on issues involving the unborn. She was labeled a crony before lunch on the day of her nomination by scores of commentators. Attacks on her competence within the White House followed immediately. She never had a chance, really.

5. The criticism of Miers' lack of judicial experience has set a standard in favor of appointing only judges that is not in the constitution. Even though some of Miers' critics say they would support someone without judicial experience, after this defeat no president will want to take that risk.

6. The leaders of the anti-Miers' camp were two blogs, National Reviews' The Corner and ConfirmThem.com.

They unleashed every argument they could find, and the pack that followed them could not be stopped. Even if a senator had a mind to urge hearings and a vote, he had to feel that it would call down on him the verbal wrath of the anti-Miers zealots.

7. "It will be the lasting glory or the lasting shame of The Corner and others involved in driving Ms. Miers from the field, depending on what happens" in terms not only of the next nominee, but the nominees that follow, the coming senate campaigns and the 2008 presidential election.

8. "This triumph of the conservative punditocracy will have lasting consequences, and I hope my fears are misplaced." The first consequences may come in the parental notification case to be argued before the Supreme Court in late November--with Justice Sandra Day O'Connor probably casting one of her last votes.

Kudos to Hugh for presenting an articulate case for the sort of nomination process the constitution envisions and for warning of the consequences of using the "ends justify the means" strategy followed by some in the anti-Miers camp.

Intemperate Rhetoric

The Hedgehog Blog - It's All About Decency, Folks
Alamo Nation - Reaction to Miers Bow Out
The Anchoress - Harriet, Bring the Cannoli!

have good analyses of how some conservative critics of Miers have damaged themselves by their intemperate rhetoric.

It’s hard to rebuild a damaged reputation (ask Clarence Thomas and Harriet Miers). But, the job is even harder when you damaged it yourself.

Whoever digs a pit will fall into it,
And he who rolls a stone will have it roll back on him.
Proverbs 26:27

Speaking for the Base

Interesting that the recent Gallup poll on Harriet Miers’ withdrawal indicates that more conservatives were disappointed by the Miers withdrawal than were pleased and that a majority of Republicans were disappointed.

Looks like the part of the conservative base that anti-Miers pundits were speaking for stood shoulder to shoulder with moderate and liberal Democrats. Politics makes strange bedfellows.

Initial Reaction to Miers' Withdrawal


Pleased - Disappointed
42% - - - - - 35% - - - TOTAL SAMPLE

34% - - - - - 44% - - - Conservatives
45% - - - - - 33% - - - Moderates
55%* - - - - 25%* - - Liberals

31% - - - - - 53% - - - Republicans
39% - - - - - 33% - - - Independents
55% - - - - - 25% - - - Democrats

47% - - - - - 32% - - - Men
38% - - - - - 37% - - - Women

*Small sample size

Savaging Nominees and Presidents

What a sad day. Another nomination has been shot down before coming to a vote. This time due to pressure from some conservatives.

We seem to be veering further and further away from government by elected officials to government by special interest groups.

Some, crowing over Miers’ withdrawal, see a rejuvenated conservative base. What I see is deepening distrust. The arguments raised at times were mere sneers savaging both Miers and President Bush.

“childless” - Phyllis Schlafly

“neither the inclination nor the ability to make sophisticated judgments” - George Will

“While Bush was still boozing it up in the early ‘80s” - Ann Coulter

". . . I fully expect that if Justice Stevens retires, President Bush will nominate his dog Barney to fill that vacant seat. After all, who can a man trust to be loyal more than his dog? I reckon the president knows Barney's heart as well as anybody's, and certainly Barney has no paper trail, unless you count stuff he chewed up when he was a puppy. Besides, if Caligula can put his horse in the Senate..." - Rod Dreyer, National Review Online - The Corner

"Many leaders come from nowhere before rising to the top. Ronald Reagan went to Eureka College; Richard Nixon went to Whittier College; Abraham Lincoln went to no college. Ms. Miers had as many advantages as these men, or more. She only has fewer achievements." - Richard Brookhiser

The anti-Miers campaign even took out TV ads. It’s obvious that Supreme Court nominations are now considered a 3-ring circus by people on both ends of the political spectrum.

Count me out. I still believe in the constitutional process. President nominates. Senate gives advice and consent. Only special circumstances: the nominee has ethical or moral problems. Otherwise, it’s an up or down vote in the Senate. My view on that doesn’t shift with the nominee or the president.

I don’t see hugs and kisses all around. I see a deeply fractured conservative base wondering what rules and values are central to the nomination process, a president wounded by his supposed friends, and Democrats rejoicing that they didn’t have to do anything to look good.

We Need Better Justice

A group called Americans for Better Justice is airing an anti-Miers ad.

The ad, though better in tone than the NARAL ad that had to be withdrawn, is really without content. At least Better Justice didn't put in a downright lie like NARAL. But, then that's a pretty easy bar to clear when you don't put in any facts at all about Miers.

Instead Better Justice includes short quotes from Robert Bork and Rush Limbaugh that merely say they don’t support the Miers nomination. The gist of the message is: We support the President. We don’t support this nominee--and neither does Robert Bork or Rush Limbaugh! Therefore, you shouldn’t either.

It is a bit unusual to support a person, but oppose their positions. Sort of like supporting the troops but hoping they do badly in Iraq. But, what Better Justice wants to make clear is that they are not using this as a Bush-bashing technique. I'm not sure how relevant that is given that the impact of a political defeat coming from one's friends is arguable more devastating that an defeat by one's enemies.

Strangely Better Justice presumes that viewers will follow Limbaugh and Bork without hearing a single fact put forward. For decades liberal critics of Limbaugh have said his listeners are politically naive or stupid because they blindly follow everything Limbaugh says. Rush and his listeners make fun of that presumption. You can hear it every time a caller starts out with "mega-dittoes".

Besides playing to a knee jerk reaction among conservatives, Better Justice adds insult to injury by claiming to speak for conservatives. Last time I checked there were lots of diverse opinions among conservatives–even on the Miers nomination. Maybe Better Justice will give us better justice by withdrawing the implication that they speak for all conservatives. Now that’s a withdrawal we might all be able to agree on.

For more on this, see the Alamo Nation blog.

The Truth Laid Bear Miers Poll

Since The Truth Laid Bear blog is trying to tote up bloggers for, against, and neutral on the nomination of Harriet Miers, here’s my point of view.

I support the Miers nomination because I am a strict constructionist of the Constitution. Article II, Section 2 says:

He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. [emphasis mine]

The President has the right to nominate Supreme Court justices. President Bush has done that. Now it is the right of the Senate to give “advice and consent”. That has not happened yet. I want to see the constitutional process followed.

There are three more reasons I support the nomination. The first is on a purely “fair is fair” basis.

1. Miers has not has not had a chance to defend herself (and the President). If she is forced out now, there is no way to redeem her (or the President’s) reputation. Stopping the process now will in effect say that she is not good enough and will bring into question the President’s ability to fulfill his constitutional responsibility. To tar someone and not let them respond is at the least unfair if not downright unethical.

The other two have political implications.

2. Forcing the withdrawal or defeat of the nomination, will weaken both President Bush and the Republican majority (which already has had significant problems in doing anything substantive). Governing is hard enough now. Imagine what it will be like if President Bush takes a major hit from both “supporters” and opponents. One thing you have to say about the Democrats is that when their President was caught lying under oath they went to the mat for him–and are still doing it. Heard Michael Moore on the subject? And that was lying under oath! Clinton’s presidency was weakened, but not because of the Democrats.

3. It makes all the previous conservative furor over Republican unity so much hypocrisy. If conservatives can oppose Harriet Miers, why couldn’t Sen. Voinovich oppose John Bolton? Or why be upset with the fourteen who defused the constitutional option? Or with Sen. Specter being chairman of the Judiciary Committee? The sad fact is that Specter has been more supportive of the president’s nominees than conservatives have. If conservatives can break ranks, then everyone else has the same right.

If you don’t like a nominee, fine. But then don’t expect others to support your nominee, or bill, or position if that’s not what they feel.

There are a lot of positives to encouraging diversity of opinion. Political effectiveness is not one of them. Ronald Reagan’s 11th commandment (“Thou shalt not speak ill of a fellow Republican.”) showed how closely his political wisdom was intertwined with his conservative principles. Too bad some who invoke his name, don’t take his counsel.

The Supreme Court, Common Sense and Super-Nerds

It was Bill Buckley (my mentor in matters political) who praised the good sense of common people by writing that he would rather "live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University." (Rumbles Left and Right)

But common sense has taken a beating this week.

The usually thoughtful Jed Babbin, filling in this week for Hugh Hewitt, responded with a surprising lack of common sense to a caller. The caller pointed out that Republican senators had voted to confirm Justice Ginsburg despite disagreeing with her personal views and knowing she was not a strict constructionist.

They voted for her because they believed that Article II of the Constitution gave President Clinton the right to nominate justices who shared his judicial and political views. The caller’s question was: Shouldn’t Republicans give a Republican president at least as much leeway in approving his nominee as they gave a Democratic president? Babbin responded that at least we knew where Ginsburg stood. We don’t know where Miers stands. Huh? Better to vote for a candidate you know is opposed to your judicial philosophy than to vote for a candidate who may be for it?

Common sense took another hit when Ann Coulter decried it as not being a fit attribute for Supreme Court justices. From her October 19 column:

Common sense is the last thing you want in a judge! The maxim "Hard cases make bad law" could be expanded to "Hard cases being decided by judges with 'common sense' make unfathomably bad law."

It was "common sense" to allow married couples to buy contraception in Connecticut. That was a decision any randomly selected group of nine good bowlers might well have concurred with on the grounds that, "Well, it's just common sense, isn't it?"

But when the Supreme Court used common sense — rather than the text of the Constitution — to strike down Connecticut's law banning contraception, it opened the door to the Supreme Court rewriting all manner of state laws. By creating a nonspecific "right to privacy," Griswold v. Connecticut led like night into day to the famed "constitutional right" to stick a fork in a baby's head.

Leaving aside the fact that Griswold did not appeal to common sense as a basis, let alone the primary basis, for a right to privacy, Coulter used a not so logical sleight of hand to link common sense and “stick[ing] a fork in a baby’s head”.

Her argument was that the Supreme Court used common sense to find a right to privacy. The Court later used the right to privacy as the basis for upholding partial-birth abortions. Therefore, common sense is to be blamed for recognition of a right to partial-birth abortion.

One could restate the logical fallacy in simplistic terms: Dogs are animals. Animals include ducks. Therefore, dogs are ducks.

Dogs aren’t ducks, and partial-birth abortion is not common sense. Rather, it is exactly the legal “super-nerd” Coulter admires who might find a nexus between a right to privacy and partial-birth abortion. It would not be the result of the average American’s common sense judgment.

One of the finest moments in John Roberts' Senate confirmation hearings was about as common sense as it gets. Roberts said:

If the Constitution says that the little guy should win, then the little guy's going to win in the court before me. But if the Constitution says that the big guy should win, well then the big guy's going to win because my obligation is to the Constitution.

That’s a position the first 2,000 people from any city's telephone book could understand. It’s not the legal super-nerd who came out shining in the Roberts hearings, but a Chief Justice who has a rock solid common sense understanding of how to decide cases that come before him.

Politicizing (and Trivializing) the Oregon Constitution

Last week Marion County Judge Mary James added to politicizing the Oregon constitution. She found Measure 37, a land compensation law passed by 60% of Oregon voters in 2004, unconstitutional.

This is one of several slaps to Oregon voters issued by Oregon courts in recent years. This kind of ruling gives the clear message that initiative petitions should be framed as constitutional amendments rather than state measures. Otherwise they are more likely to face defeat in the courts whatever the outcome at the ballot box. This trivializes the Oregon Constitution. It becomes more and more a compilation of state laws and codes rather than the ruling legal framework a constitution was meant to be.

Judge James ruled that Measure 37 was unconstitutional because it favored land owners who bought their property before land use regulations were enacted thus violating equal protection by applying different standards to different property owners. She also ruled that it was unconstitutional in restricting the power of the legislature to make rules to protect public health, welfare and safety.

According to this ruling tons of Oregon statutes and regulations must be unconstitutional.

1. Applying different standards. The tax code is riddled with different standards based on, oh, if you own a home, are married, give to non-profit organizations, are disabled, elderly, have dependents, etc. This doesn’t even touch the Multnomah County income tax which doesn’t apply to PERS retirement earnings but does apply to other retirement earnings.

Then there are DEQ vehicle standards which only apply to people who live in certain areas – as do most land use planning laws.

What is strangest of all is that Judge James seems to be saying that the measure would have been constitutional only if it had effectively done away with all land use planning by requiring compensation to every property owner. I’m sure there are lots of property owners who might agree with that. But, the framers of the initiative and the voters who approved it thought limiting the claims on local government to those owners who bought their property without any possibility of knowing that their use would later be restricted were the ones most entitled to compensation for their loss.

2. Restricting the power of the legislature. This is a “one size fits all” argument. One could reasonably argue that the entire Oregon Constitution, with the possible exception of parts of Article IV Legislative Department, is unconstitutional in restricting the power of the legislature to make rules which might protect public health, welfare and safety. But, those rules would be at the expense of personal liberty, or the powers of the Executive branch, or even the Judicial branch.

The fear that Oregon courts might rule a mere measure passed by initiative petition unconstitutional is one reason the policy establishing marriage in Oregon as being between one man and one woman was sent to the voters as a constitutional amendment (Article XV, Section 5a) rather than a normal state measure.

Judge James’ ruling is not the first step towards trivializing the Oregon Constitution and the “Oregon System” (referendum, initiative and recall) by finding inventive ways of striking down initiative petition measures and constitutional amendments passed by the people.

The Oregon Supreme Court struck down Measure 40, a crime victims' rights amendment passed in 1996, because it included more than one change to the Oregon Constitution. Any change to the state constitution must be restricted to a "single-subject". The Court found that Measure 40, though not "expressly" changing more than one part of the Oregon Constitution, "implicitly" touched other parts of the constitution. Thus, it was unconstitutional.

The trouble with that, of course, is that almost all constitutional amendments implicitly impact other parts of the constitution. If nothing else, they can be seen both to touch on whatever article and section they expressly address as well as implicitly impact the global Section 33 of Article I:

Section 33. Enumeration of rights not exclusive. This enumeration of rights, and privileges shall not be construed to impair or deny others retained by the people.—

One might even say that since Section 33 expressly alludes to all the other areas it is unconstitutional.

What the ruling against Measure 40 did was to warn that any amendment to the Oregon Constitution that had any complexity (such as the first amendment to the US Constitution has), might be found unconstitutional. In dealing with any issue, no matter how complex, the simplest of wording has the best chance of being found constitutional. Thus, the one-man-one-woman definition of marriage is composed as directly and simply as possible.

Section 5a. Policy regarding marriage. It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.

Can't get much simpler than that. Still there are challenges to its constitutionality because it implicitly impacts more than one section of the Oregon Constitution.

What a pity to push the Oregon Constitution toward being an ever growing number of statutory codes because judicial interpretation has become a political “gotcha” game.

One plays the political game by the rules set down. In finding new parameters, which are not applied evenly to all amendments, laws and codes, Oregon judges are constructing a political playing field which both politicizes and trivializes the Oregon Constitution and the courts themselves.

Harriet Miers, Federalist #66, and the Importance of Process

The most discouraging part of the criticism against Harriet Miers is that it is being made with so little evidence on the table. There have been no hearings yet.

Some don’t want the hearings to even happen. They want the nominee withdrawn before she has a chance to be evaluated by the Senate (and the country). That isn’t fair and it isn’t good politics.

It’s one thing to withdraw a nomination because they nominee has been shown to have legal, ethical or professional problems. This has been the usual standard in the past for withdrawing a presidential nomination. Even so, the list of cabinet nominees withdrawn is pretty short (most of the nominees withdrawn in recent times coming in the Clinton administration.)

It is even shorter for Supreme Court nominees. Except for John Roberts (whose nomination was withdrawn to be associate justice in order to nominate him for chief justice) and Abe Fortas (who already an associate justice had his nomination to be chief justice withdrawn), you have to go way back to President Ulysses Grant to find the next most recent supreme court nominee withdrawn.

In other words, it isn’t a common event to have a high level presidential nominee withdrawn, let alone a supreme court nominee. To ask for it now, in the absence of scandal or improper conduct, is to further politicize the court nomination process. It also sullies a nominee’s reputation and name for unexamined reasons. If Harriet Miers’ nomination is withdrawn, in what forum can she reasonably be expected to give evidence to the nation of her character and competence?

To not like a nominee for this or that reason is a fair basis for asking one’s senator to reject a nominee. But, it’s not wise or right to ask that a nominee be withdrawn before his or her merits can even be considered. The framers thought merit should be the measure for a nominee. (Federalist #66*) They believed the “advice and consent” procedure in the Senate would be a reasonable way to measure merit. Their position has been, if not glowingly confirmed, at least substantively confirmed by the nomination process for the last two centuries.

It is right to be wary of someone we don’t know yet. There are lots of questions that should be answered even by people we think we know. That’s why there is a confirmation process. But, if the argument turns to rejecting the very process of evaluation for this or that nominee (except under exceptional circumstances of scandal or demonstrated professional incompetence), the Republic, as well as the nominee, is in trouble.

*It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

Oops! David Frum Needs Miers-like Help

Poor David Frum. After intimating that Harriet Miers has a second rate mind because she corrected spelling, grammar and punctuation on memos that passed through her hands on to the President, Frum had a grammar and punctuation error of his own. His online petition against Miers needed a Miers-type to correct the error.

Tip of the hat to George Berryman III and the Alamonation blog.

Revisiting the Religious Test Argument

Someone as normally clear-headed as Tony Perkins of the Family Research Council is now saying that the White House talking positively about Harriet Miers' faith and commitment is like promoting a religious pre-test and encourages senatorial inquiry into how that faith will impact the nominee's decisions.

In a posting "No Religious Pre-Test Either" he writes:

We scored liberal Democrats on the Senate Judiciary Committee, and their interest group allies, for making comments and inferences about the fitness for office of Bush nominees because of their "deeply held personal beliefs." We argued then, and believe now, that this language was code for the Democrats' objections to any judicial nominee of orthodox religious conviction. We pressed the Democrats not to go down this path, and on the nomination of Judge Roberts, not to mention the stopping of filibusters against key appellate nominees, the Democrats largely avoided anything that smacked of a religious test.

The same must be said now for advocacy of Harriet Miers. We are the last people on earth to object to the news that she is a committed Christian; the Good News is, above all, great news for her. And we reiterate, this fact about her is neither grounds for objection nor a fit object for examination by the Senate. By the same token, this fact is not grounds for certifying her to us or to the public. It's not just that religious conviction is an unreliable indicator of a judicial philosophy (though it clearly is), it's that inferences drawn from an individual's religious affiliation have no place in decisions to nominate or confirm a judicial appointee. Religious convictions do find their way appropriately into the law when they undergird and inspire norms of justice, as they have always done in the American experience. But that is not the same thing as drawing conclusions about a judge's potential rulings based on their personal faith. On that point, the question should not be asked nor should it be answered.

Tony Perkins is sliding down the slippery slope of saying that bringing up religious faith and commitment is the same as requiring or imposing it. How else would we know that Harriet Miers has a deep religious faith (or that the President admires deep religious faith) unless they brought it up? To admire is not to require.

Perkins himself in the same post above faults Barry Lynn for suggesting that President Bush's desire to find judicial nominees who believe "our rights are derived from God" is a religious litmus test. Actually, that comes closer to a religious test than admiring Harriet Miers for having religious commitment and integrity. But Perkins does not seem to see the inconsistency in his back-to-back statements.

If the tradeoff is that either we (and one supposes the nominee) are not allowed to speak of the nominee's religious faith or it becomes a legitimate part of governmental inquiry, we have struck a body blow to the First Amendment and Article VI of the Constitution.

Tony Perkins and others like him advancing this argument are encouraging more and more "stealth" candidates--candidates who let no deep convictions show up in their life--especially religious convictions. To ask nominees or their supporters to hide religious commitment is to wander along the road of another kind of religious "pre-test".

Phyllis Schlafly Waves Bye Bye to Ann Coulter: Childless--A New Standard to Measure Competence

I hope Phyllis Schlafly was wildly misquoted in this 10/5/2005 CBS news story:

"Eagle Forum president Phyllis Schlafly told CBS News that the nomination is a 'tragic disappointment' and a 'huge mistake.' Schlafly said 'Bush blew it. Miers is a female Souter, a childless appointee and a blank slate.'"

If having a child is a new measure of competence, bye bye Ann Coulter, not to mention Rush Limbaugh. Or, one could build on that and say that poor Janice Rogers Brown, with only one child, should be at the bottom of the Supreme Court competence list and Judge Diarmuid F. O'Scannlain, with eight children, should be at the top.

By the way, I agree with David Reinhard that O'Scannlain would be a great pick. But not due to the number of children he has fathered.

Mrs. Schlafly's comments are just another indication of how emotional and irrational the discussion on this nominee has become.

A View from the Top: Richard Brookhiser on Reagan and Miers

In a column for the 10/17/05 New York Observer, Richard Brookhiser writes:

"Conservative defenders of the Miers pick attribute such violent and visceral reactions to snobbery: Our wise President is being second-guessed by a bunch of Beltway elitists and Ivy Leaguers who disdain the horny-handed daughter of toil nurtured at Southern Methodist University. But this charge is boob bait. Many leaders come from nowhere before rising to the top. Ronald Reagan went to Eureka College; Richard Nixon went to Whittier College; Abraham Lincoln went to no college. Ms. Miers had as many advantages as these men, or more. She only has fewer achievements."

The last sentence is a great one-liner. I'm sure those who sneered at the actor Reagan running for president would have loved the line. "Richard Nixon went to Whittier College; Abraham Lincoln went to no college. Mr. Reagan had as many advantages as these men, or more. He only has fewer achievements." Too bad for Mr. Reagan's detractors that Mr. Brookhiser at the time was a young supporter of RR and might have viewed that kind of comparison as using a sneer instead of argument.

How sad to become like one's opponents.

Even sadder that though this fight on the Miers' nomination is a true indication of the real diversity among conservatives, it is also a harbinger of political fracturing. If this nomination goes down, what are the chances of railing at "moderate" Republican senators if they choose not to support a more conservative judicial candidate?

Oregon's Republican senator is a good man, and it took some courage for him to vote from a blue state for Rice and especially for Bolton. How am I going to have any credibility in urging him to go against the majority of his constituency and vote for the President's future nominations? It will be tough with the Miers' episode in our back pocket.

Is it hypocritical to be against a religious test and yet admire a nominee's religious commitment?

In his October 7th column, E. J. Dionne joins Ed Morrisey of the Captain's Quarters blog in saying that it is:

1) hypocrital to insist that a nominee not be questioned on personal religious views because it would be a religious test

but

2) use what is known about the nominee's religious convictions as a positive argument to energize public opinion for confirmation.

Let's follow the reasoning on that by changing the central parameter to another legal prohibition. It is illegal to have a racial (or gender) standard for political or judicial office. Thus, one's race or gender is not to be considered as an impediment or help to holding office or a basis for asking questions of a nominee. But, is the admiration expressed for Colin Powell, Condi Rice or Janice Rogers Brown hypocritical in noting their race (and gender in the case of Rice and Brown)? I don't think so. In fact, I think there is appropriate pride in those who have broken glass ceilings to move to the top in governmental and judicial positions.

It is not hypocritical to mention race, gender or religion as a positive factor in appealing for public support. That does not change the fact that such factors must never be used as an official, governmental standard and subject to official questioning.

Harriet Miers and Her Critics

I think some of the major conservative commentators have left their base. I don't mean their readers or listeners. I mean the vast majority of the 62 million people who voted for George Bush.

Some of the criticism of Harriet Miers is, well, just plain petty.

She is only 1 of a million lawyers in this country. What makes her so special? (Charles Krauthammer) Maybe that she headed a major Texas legal firm successfully, or was the first woman head of the Texas bar, or is the trusted counsel for the President of the U.S. How many of the other 1 million can claim anything even close to those credentials? How many of her critics have done half as much? Yet there is sneering at her success as the basis for a "joke" nomination.

Then there's the innuendo that she is small minded because she corrected punctuation, grammar, and spelling on memos sent to the president. (David Frum - 10/6/05 CSPAN Washington Journal interview) This reminds me of the criticism of John Bolton for having demonstrated his anger by the intimidating gesture of putting his hands on his hips! Who thinks such a criticism is even worthy of being brought up? Harriet Miers is a detail person, which is undoubtedly one of the reasons she was successful in running a major business operation (as Beldar points out) and certainly was a factor in making her a successful practicing lawyer. Anyone who has gone to law school knows that getting the details (facts) right are the basis for any possibility of arguing the merits of a case--whether it's property law or constitutional law you are dealing with. To pooh-pooh attention to detail is not to understand the law.

Then there's the I-and-my-friends-didn't-think-of-her-so-why-should-the-President? criticism. (Charles Krauthammer, David Frum) Uh, maybe because Article II of the Constitution gives him that responsibility. If you think he makes bad choices, you shouldn't have elected him president. But the idea that the same senators who approved Justices Ginsburg and Breyer should reject Harriet Miers because she wasn't on somebody else's short list is ludicrous. (Thanks to Hugh Hewitt for pointing this out on his radio show.) One might well wonder if these commentators have even read the Constitution. But, they obviously have and for some reason have substituted "advice and consent of the Senate" with advice and consent of his political base--or, more accurately those pundits who presume to speak for his political base.

Which brings me back to my original point. I think most of the 62 million who voted for George Bush do not want a Supreme Court made up of judicial nerds who know lots of court case details and not much about real life. (Ann Coulter) I think they want judges who understand real life problems, have compassion, and can read the laws and Constitution and interpret them fairly. In fact judges have a bad name for lots of people in the base because they often let the guilty go free to prey on the innocent again, don't have a common sense understanding of eminent domain, and have problems figuring out if the Ten Commandments can be legally displayed in courtrooms. For most of the base these are no-brainer issues. We need people on the court who can cut to the chase. If it's your case being judged, would you list as one of your top ten desired attributes that you want a legal nerd hearing your case? Not me.

I don't like the petty carping of some conservative pundits--even though I admire and have learned from the commentary of those quoted above. I think it's demeaning to Harriet Miers and to the conservative movement.

The main problem is that no one knows enough about Harriet Miers to give substantive criticism. The main facts known about her are that she has been very successful personally and professionally in many different roles. So, her critics are reduced to trying to demean her and reduce the impact of her success. That's not nice, and it's not very flattering to people whose business is to communicate substantive issues and sell people on conservative values. Nit-picking and attack by innuendo are not conservative values. And, in fact, they are what has put the liberals in so much electoral trouble. Let's not take a page from their book.

I don't know much about Harriet Miers either. But, I like that she has been successful in a lot of different roles that require insight and the ability to express a case convincingly. I also like that people who know her like her and trust her. I think that sort of person can make a first-rate justice. I don't know whether she will be first-rate or not. But sneering and nit-picking is not the way to find that out or to enliven the base.