October 21, 2005

"I have no desire to see her humiliated. "

Charles Krauthammer tries to talk Bush down from his commitment to the Harriet Miers nomination.
It's no secret that I think the Harriet Miers nomination was a mistake. Nonetheless, when asked how she will do in her confirmation hearings, my answer is, I hope she does well. I have no desire to see her humiliated. Nor would I take any joy in seeing her rejected, though I continue to believe it would be best for the country that she not be confirmed to the Supreme Court.

And while I remain as exercised as anyone by the lack of wisdom of this choice, I part company with those who see the Miers nomination as a betrayal of conservative principles. The idea that Bush is looking to appoint some kind of closet liberal David Souter or even some rudderless Sandra Day O'Connor clone is wildly off the mark. The president's mistake was thinking he could sneak a reliable conservative past the liberal litmus tests (on abortion, above all) by nominating a candidate at once exceptionally obscure and exceptionally well known to him.

The problem is that this strategy blew up in his face. Her obscurity is the result of her lack of constitutional history, which, in turn, robs her of the minimum qualifications for service on the Supreme Court. And while, post-Robert Bork, stealth seems to be the most precious asset a conservative Supreme Court nominee can have, how stealthy is a candidate who has come out publicly for a constitutional amendment to ban abortion?
To avoid the devastating hearings that almost surely lie ahead, Bush can take advantage of the current dispute over document production:
For a nominee who, unlike John Roberts, has practically no record on constitutional issues, such documentation is essential for the Senate to judge her thinking and legal acumen. But there is no way that any president would release this kind of information -- "policy documents" and "legal analysis" -- from such a close confidante. It would forever undermine the ability of any president to get unguarded advice.

That creates a classic conflict, not of personality, not of competence, not of ideology, but of simple constitutional prerogatives: The Senate cannot confirm her unless it has this information. And the White House cannot allow release of this information lest it jeopardize executive privilege.
So Miers needs to withdraw, and here is an elegant way to withdraw gracefully. Today would be a good day.


Henry said...

Hear hear!

paulfrommpls said...

One thing I try to make my left friends aware of is simply the superior analysis on the non-left. I'm sure there are arguments against what Krauthammer (is that German?) says but it's a good example.

(When you compare the non-left's pundit royalty to the left's, it's amazing that smart people in the left can avoid being embarassed.)

Undercover Christian said...

Another example of why Krauthammer is my favorite political analyst.

I have no desire to see her humiliated.

Same here. She didn't nominate herself, and I feel sorry for her everytime I hear a joke that attacks her in a personal way.

Withdraw Miers. Nominate Brown.

anselm said...

It can't go past today. It just can't...can it?

Art said...

Friday night at five is always a good time to bury a mistake.
But unless Bush has someone else standing by, fully vetted, who he can nominate on the spot, I'm afraid he's stuck with Harriet Meirs.
If he has to wait for a replacement, that take it at least until next week.
IF the indictments come down, and I stress the word IF, and they extend beyond Rove and Libby and involve charges that relate directly to violations of national security (as opposed to purgury or obstruction of justice) Bush's political capital account will be at zero. He would find it impossible to nominate anyone and get them confirmed. Meirs is going to have to sink or swim on her own.

Goesh said...

Sorry, the die is cast. It must run its course. The wagons are circled what with Mr. Karl being grilled and squeezed and poor Tom Delay with one foot in jail. It is better to let the mean old Senators appear vicious and ruthless on TV and deny her the black robe than for George to fess up and tell the world he had poor judgement. No sir! George Bush will not be bullied into this. I wonder though if the cunning hand of Mr. Karl has not already been at work, knowing this would happen to Hapless Harriet, and with her plunge into infamy the GOP will rally behind the politically wounded boss and ram the nomination of Janice B. through all the way onto the Big Bench. You go, Karl, you go, baby!

Henry said...

Miers can't swim on her own. Roberts could have if he had needed to. Dare I suggest that Luttig or McConnell might have be better suited as a DIY nominee?

Charles said...

You just have to wonder about the person in charge of the vetting process comes back with only one name as fully and best qualified: their own. Having seen that many times in the past, alarm bells should have gone off all over the White House - This is the LEAST qualified person to send out.

anselm said...


Why does a withdrawal have to be simultaneously accompanied by a new nomination? It seems decorous at the least, and probably politically sane, to wait a week or so before re-nominating, (a) to clear the air, and (b) to avoid the appearance that admin had vetted the second nominee while the previous nomination was still pending.

Besides, regardless of the timing of the Miers nomination's demise, they've got to have a short list of partially vetted candidates already.

incidentally, paulfrommpls: who would you name among the "left pundit royalty" (that deserves it IYO)

PatCA said...
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PatCA said...

Agreed, first, because it's true, she does present a conflict of privileges that cannot be undone and, second, because it will be a humiliation as she tries to explain why that isn't so.

And Barbara Boxer will say something stupid.

37383938393839383938383 said...

The defenders of Miers’ nomination say that Miers is qualified. Essentially, they claim that she is a complex litigator with excellent case management skills, but not a constitutional scholar of the first order. The former is more relevant to adjudication, they say. Fine. Let us take the premise seriously. In that case, then, it seems the Senate should ask her questions related to complex litigation and case management, not obscure constitutional questions.

1. What does she think of Lon L. Fuller’s “The Forms and Limits of Adjudication”? Has she read it?
2. Does she have an understanding of comparative procedural systems in practice? For instance, what does she think of Mary Ann Glendon’s analysis of foreign legal systems in “Comparative Legal Traditions”?
3. What does she think of using preclusion rules as an alternative way to overcome joinder complexity? In particular, what does she think of Justice Rehnquist’s dissent in Parklane Hoisery Co. v. Shore?
4. How does the Due Process Clause figure in precluding persons that did not participate in a prior case? In particular, what is her opinion of Richards v. Jefferson County, Alabama, a SCOTUS case?
5. What does she think of preclusion after notice and opportunity to intervene, particularly in the context of reverse discrimination suits where consent decrees have already been entered? For example, Martin v. Wilks, another SCOTUS case? What is her opinion about Congress’ response to this case, with 42 U.S.C. sec. 2000e-2(n)?
6. What is her opinion of the Eleventh Amendment jurisprudence we have thus far? Does the text govern? How do we reconcile the text of the Eleventh Amendment and the subsequent jurisprudence? What is her opinion of the diverging approaches of doing so?
7. Is she concerned about the limitations on aggregation imposed by territorial jurisdiction? How, in her opinion, does this play into asbestos litigation? Does she have an opinion of In re Asbestos Litigation?
8. Does Strawbridge v. Curtiss announce a constitutional rule, or is the diversity required for diversity jurisdiction by the constitution broader or narrower than what is promulgated by that case?
9. When is it appropriate for judges to use the All Writs Act? Was the Terri Schiavo case an example?
10. Is compulsory consolidation in bakruptcy cases fair to litigants? Why or why not? Do litigants have a constitutional right to be masters of their own complaints?
11. What are relevant policy concerns of class actions? Discuss Hansberry v. Lee and In the Matter of Rhone-Poulenc Rorer Inc. In particular, is Judge Posner wrong? Why or why not?
12. Are there constitutional or jurisdictional limits on mandatory class actions? If they exist, how do they play into the case of In re Federal Skywalk Class? Was the outcome of that case justified? Why or why not? What conceptual framework would you use to decide that case today?
13. What is federal common law? How is it different from general common law in federal courts? Discuss In re Agent Orange.
14. You are on record as opposing judicial activism. Which judge is more activist in your view: Jack B. Weinstein or Edward Becker?
15. What is the proper use of a court’s remedial powers? Discuss Missouri v. Jenkins. In addition, what is the rightful position, and what are some common critiques of this analytical tool?
16. How much power should magistrate judges have in complex antitrust cases? How could overpowering magistrate judges possibly conflict with the guarantees of the 7th Amendment?
17. You have experience with antitrust law. Do you agree with the result in Topco? What could possibly be wrong with it?

If she can't answer these questions, wouldn't it be fair to vote NO? And wouldn't one conclude she shouldn't have been nominated in the first place? And need we really ask her these questions to recognize how unqualified she is?

Paul said...

Tonight's the night, it's gonna be alright.

Doug said...
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Doug said...

I am fully convinced that this White House will not follow Krauthammer's excellent advice. Instead they will keep moving ahead with a nomination that looks like a disaster in the making. Despite all the mea culpa's that came from the Bush Administration post-Katrina, the past 4 years clearly indicate that they do not back down even when its clear they are wrong.

anselm said...

I don't know...(note: midwestern phrase indicating disagreement)

The only thing going for Miers going into the hearings is the fact that punctuation will not be an issue.

The GOP will not circle the wagons on this issue if she looks as bad as her performance thus far suggests she will. Too many of their constituents are looking ahead to the "fallback" nomination already - to the nonevangelical conservative base and their favorite commentators, the "fallback" will an opportunity for redemption, and the current nomination merely an unfortunate sideshow between Roberts and the next nominee.

To much of the right, their active support for Bush was a quid pro quo for a guarantee of a proven conservative justice(s). He has broken that deal, and the admin has already begun trying to make amends - note the about-face this week suddenly adopting a hardline stance on deportation of illegal immigrants. They are in a concessionary posture because a big part of the base is about to walk out on them. If that happens, look for approval numbers in the teens or slightly higher.

As far as issues polarizing the GOP, look out also for the Coburn amendment. There is a true minefield of issues threatening the admin and GOP solidarity. The admin didn't make concessions to the Democrat-ish war dissenters, but it will, this time around, to the prospect of its dismemberment.

anselm said...


methinks you have posted the same laundry list on volokh.

Doug said...
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Doug said...

From National Reviewcomes this indication that Bush will not back down no matter how bad it gets.

anselm said...

apologies for multi-consec-posting.

The main point of my comment above is that the "mean democrats" tack is way irrelevant at this point. It worked with a far superior nominee in much rosier days (during Katrina, but prior to much of the Katrina political fallout) that might as well have been years ago.

Barbara Boxer doesn't need to play the bitch this time around - and the abortion lobby probably won't be pushing as hard for her to (okay, maybe it will). And if she does, no one will care.