January 14, 2006

Newly perceived: just how incompetent the Miers nomination was.

My son John Althouse Cohen emails (from the other side of the dining table):
The fact that Alito is so sure to be confirmed gives us a new reason to criticize Bush for nominating Harriet Miers. Back then, it looked as if Bush had chosen an underqualified nominee because she was a woman and had no record of taking positions on issues. But we now know that a white, male conservative with a long paper trail did not run into any serious obstacles. So not only did Bush choose an unqualified nominee for political reasons; those political reasons didn't even apply. We already knew that the Miers nomination was incompetent, but it looks even more incompetent now that the Alito hearings have gone so smoothly.
Indeed. We shall see how this new knowledge affects future appointments. Don't you think it will embolden this President and future Presidents?

(John is home from law school -- Cornell -- for winter break, and, don't worry, we do talk. But sometimes I say, "Email me that," for blog purposes.)

20 comments:

Gerry said...

"Don't you think it will embolden this President and future Presidents?"

I do, and this is a *good thing*. Which is better?

1) A court full of intellectually accomplished, experienced, and dynamic judges considered by all to be at the top of their profession, or
2) A court full of those who were chosen because they were considered mediocre and squishy enough to not be considered threatening to the 'other side', whichever side is in power at the time?

I prefer excellence from both sides.

Sissy Willis said...

It sounds like the money you're putting into the young man's education is being well spent. :)

Plus, emailing across the table -- with one's own son/mother! -- is the very essence of cybercool.

ChrisO said...

I still believe that the primary reason for the nomination of Harriet Meiers is because she could be reliably counted on to vote against any challenges to Presidential powers, which could be a real issue for Bush in the remaining years of his term. He cares much less about ideological issues than he does about his ability to run the country the way he sees fit, with as little interference as possible.

XWL said...

I'm not wishing Justice John Paul Stevens ill, but he's not a spring chicken, or even a fall chicken any more, he's a mid-winter chicken, though a very healthy specimen of a mid-winter chicken who hasn't shown any signs of not being in full charge of all his faculties (Just to illustrate his age, he graduated University of Chicago ('41) and even Northwestern Law School ('47) (his college career interrupted by distinguished service in WWII) before Chief Justice Roberts ('55), Justice Thomas ('48) or Judge (soon Justice) Alito ('50) were born).

With that caveat out of the way, there is still the possibility that President Bush will get another chance to replace another Justice. And the next Justice replaced won't be a moderate or conservative (as they are the younger, healthier Justices now), but a liberal Justice.

That means, hopefully, a future nomination of Judge Janice Rogers Brown (who probably should have been the nominee this go round, as it's obvious that even a staunch conservative/libertarian, so long as they have the proper intellectual credentials, can survive the nomination process).

Worse things could happen.

And the fight would be epic, but the Democrats don't show an ability to thwart a candidate on purely ideological grounds at this moment, or any time before the '06 election.

Slocum said...

On the other hand, it may be that the Harriet Miers fiasco smoothed the way for Alito in that it placed the focus firmly on experience and expertise and lessened the focus on on identity politics and even ideology. Without Miers, Alito's mastery would have been totally unremarkable and taken as a given.

I'm not saying that Bush & co were smart enough to plan this, but I do think it likely that Alito would have had a much toughter time of it if he hadn't had such an easy act to follow.

Ann Althouse said...

Slocum: Excellent point.

reader_iam said...

Excellent point on John's part. Cynical moves do often backfire, thought probably not as much as they should.

DH and I have been known to IM each other WHILE talking on the phone to each other ... within our own home, no less. "As in, did you notice xxx? Yeah, I'm pinging you with you link ... ".

We're also among those annoying people who will use cell phones (though discreetly, I hope, if that's not to oxymoronic) to navigate back to each other in large stores. (Whatever happened to just setting a time and place to hook back up?)

So your and John's communication seems normal to me.

Sissy's right: The essence of cybercool.

BDemosthenes said...

Point already somewhat made by Slocum but by nominating Miers first Bush also arguably gets credit for taking gender concerns into account--'well, I TRIED to nominate a woman, but it didn't take...' Whether those who care about such concerns are mollified but such an argument I don't know, but I suspect some of them might be to a degree, or at least were less able to reflexively oppose Alito solely because of his Y chromosome.

Lastango said...

“We shall see how this new knowledge affects future appointments. Don't you think it will embolden this President and future Presidents?”

Future presidents, maybe – but not this president, unless by “embolden” we mean “run scared in front of the Right.”

John’s points suggest Bush felt that he was forced to pick a Miers-type (no track record, woman, etc.) because Bush doubted anyone stronger could be confirmed. Now Bush knows better.

This overlooks a much more likely possibility: Bush wanted a Miers-type. The signer of the Campaign Finance Reform bill rejects constitutionalist justices because they will block his (and the mainstream GOP’s) domestic agenda. He will not get away with supporting racial preferences in Michigan if he has a bench-full of Alito’s. Neither would he be able to pander to the Hispanic vote in any way he chooses. For that he needs a squish on the court.

George Bush is not smiling and saying, “Wow, this is great. Now I know I can get strong justices.”

He’s saying, “The Right kicked the crap out of me and the rest of the RINOs over Miers and I had to back off. Worse, an Alito confirmation means I can’t hide behind fears of unconfirmability like I did with Roberts and Miers.”

Here’s something to remember: Miers was Bush’s nominee. Alito is our nominee. He’s in hearings right now because the Right defeated the White House. If we get another Alito from Bush, it will be for the same reason.

Ruth Anne Adams said...

I used to think it was dismissive to say "email me that", but now I see it's just maternal love. awww.

Too bad the whole Harriet Miers thing can't be written off as a Dallas-style "Bobby Ewing's Dream" episode.

brylin said...

Hugh Hewitt has an interesting comment on how the left perceives the Supreme Court to be changed by Roberts and Alito, along 2 axes: Theist v. Secularist and Constitutional Majoritarian v. Elitist/Anti-Majoritarian.

John Althouse Cohen said...

Slocum: I think you're right about that (even though your point clashes with my point). The Harriet Miers ordeal probably caused a lot of people to think, "You see? That's what happens when the president feels pressured to nominate a woman: he resorts to someone unqualified." So the public was very well set up to accept someone like Alito.

Lastango: Nice insight about how Bush might have preferred Miers because nominating Alito clashes with Bush's approval of Grutter v. Bollinger.

It's funny to me to read all this instant sociological analysis of the fact that I sent my mom an email when we were at the same table. I do that all the time (with family and friends) and think nothing of it.

jeff said...

I still wonder if the Miers nomination was deliberately set up to fail.

Sloanasaurus said...

Although it is perfectly Rovian to assume Miers was set up to fail, I doubt this was the case. I still think Bush wanted to appoint himself to the Court, and Miers was the closest thing to himself.


I wonder how much work Stevens actually does on the court. Perhaps his staff does everything....

Simon said...

"I wonder how much work Stevens actually does on the court. Perhaps his staff does everything...."

I think it unlikely; the best touchstone is probably his contributions at oral argument, which so far as I can tell, remain as erudite and intelligent as they were in the 90s. I have no question that Stevens retains the intellectual clout to be on the Court, even though I hope he retires sooner rather than later.

I think it's very unlikely that the Miers nomination was set up to fail and I think Lastango offers a far more plausible alternative. The flat reality is that Bush doesn't want originalist judges, and I think most of the people who use that term for what it actually means, rather than as the lastest GOP buzzword, fully understand that: we didn't support Bush because we think he intends to appoint another Scalia, he's just more likely to appoint one by accident than the other fellow.

Finn Kristiansen said...

Slocum said...
On the other hand, it may be that the Harriet Miers fiasco smoothed the way for Alito in that it placed the focus firmly on experience and expertise and lessened the focus on on identity politics and even ideology.


Well put. It's almost like bringing jello to the table for dessert, disappointing all the dinner party guests, and when expectations are thusly lowered, you dump the jello and whip out a grocery store bought cake. In comparison to the jello, the store cake looks quite good (with everyone forgetting the fact that the true meal was supposed to have included gourmet handcrafted chocolates).

Balfegor said...

That means, hopefully, a future nomination of Judge Janice Rogers Brown (who probably should have been the nominee this go round, as it's obvious that even a staunch conservative/libertarian, so long as they have the proper intellectual credentials, can survive the nomination process).

I wouldn't hold out much hope for that. If you recall, one of the things Congress was anxious to establish in these Alito hearings (and the Roberts hearings too, I think) was that Alito properly respected Congressional authority to do pretty much whatever it felt like under the Commerce Clause.

One of the reasons Janice Rogers Brown is so beloved by certain elements of the Right is that she has been considerably more outspoken on the subject of overreaching Congressional power than Alito (or really, most other judges) have been, and I think Senators of both parties would be considerably more leery of putting her on the Supreme Court. Ninth Circuit -- okay, she just provides a bit of balance to an already famously-wacky Circuit. But the Supreme Court is a rather different.

Robert said...

Slocum:Without Miers, Alito's mastery would have been totally unremarkable and taken as a given.

One might also add that the good thing about hitting your head against the wall is how good it feels when you stop.

PDS said...

Momma clearly didn't raise no fool.

Simon said...

Balfegor said...
"If you recall, one of the things Congress was anxious to establish in these Alito hearings (and the Roberts hearings too, I think) was that Alito properly respected Congressional authority to do pretty much whatever it felt like under the Commerce Clause."

While I strongly dissent over the use of the term "properly," I think that's an important point, because to the extent there was dissent among the GOP ranks, it tended to be protecting their turf. DeWine and Grassley wanted promises that Alito would use inappropriate materials in statutory construction such as legislative history, while, hypocritically, demanding reassurance that Alito would not use equally inappropriate materials suich as foreign law. Many Senators on both sides of the aisle wanted promises that Alito would defer to Congressional power. A nominee who walks in there and explains to Congress that, if it wants its intent to govern statutory interpretation, it should jolly well write statutes that are clear, rather than hoping judges will mangle the text to set right Congress' ineptitude, could produce serious dissent in the ranks.

As noted before, neither President Bush nor the GOP really want originalist Justices, because they are the party in power (by contrast, the Democrats don't want originalists because they have been in perpetual denial since 1994, honestly believing that they return to power will come at the next election), and a return to the original understanding would dramatically reduce the scope of the Federal government, and for personal corruption (lest there be any doubt, pork = corruption). The difference is simply that the GOP might accidentially appoint the right kind of Judges.