October 28, 2005

Will the right's attack on Miers strengthen the Democrats?

Hugh Hewitt, who was Harriet Miers's biggest supporter in the blogosphere, has this op-ed in today's NYT:
The right's embrace in the Miers nomination of tactics previously exclusive to the left - exaggeration, invective, anonymous sources, an unbroken stream of new charges, television advertisements paid for by secret sources - will make it immeasurably harder to denounce and deflect such assaults when the Democrats make them the next time around. Given the overemphasis on admittedly ambiguous speeches Miers made more than a decade ago, conservative activists will find it difficult to take on liberals in their parallel efforts to destroy some future Robert Bork....

The next nominee - even one who is a superb scholar and sitting judge who recently underwent Senate confirmation like Michael McConnell of the United States Court of Appeals for the 10th Circuit, or a long-serving superstar like Michael Luttig of the Fourth Circuit - will face an instant and savage assault. After all, it "worked" with Ms. Miers. A claim of "special circumstances" justifying a filibuster will also be forthcoming.
The problem with Miers is that she was glaringly underqualified, and I opposed her on this ground. But much of the opposition expressed a demand that the candidate meet ideological requirements, and Hewitt is right that legitimating this kind of criticism will give weight to the ideological problems the Democrats will have with a demonstrably Scalia-like nominee. So the right's opposition to Miers could have some effect on the ability of Bush to put forward the kind of nominee they want. Still, the Democrats will object to a strong conservative anyway, and if Miers had gone on the Court, that would have been a very real consequence with powerful effects.

More later. I've got to run and do that radio show.


Dad29 said...


My 'ideological' demand was that any Supreme should "stick to the Constitution."

I suppose that could be called an ideology...but it would be incorrect to label it that way.

Cato the Eldest said...

Any attempt by the Senate Dems to block a vote on a highly qualified candidate would splinter the "14". The notion that they are a solid bloc is an illusion, imho. The issue of filibustering a judicial nomination needs to be confronted and if necessary, nuked. It might as well be now.

Unknown said...

I have been against Miers since day one for two reasons.

1) She is the epitomy of cronyism.
2) She is clearly unqualified.

Nothing ideological there. When both Hugh Hewitt and and James Dobson say she's a good pick, I think the blanket charge of ideological animosity doesn't hold up. But then if you were a Democrat you'd be stupid not to go this route. They have the President in a bind. He can't nominate an idealogue for fear of being charged with manipulation from the right. and he can't nominate the Attorney General for fear of charges of cronyism and advancing a torture advocate from the left, and unsatisfied whelps again from the right.

He's screwed.

JSU said...

No, but Hewitt's blathering might.

Clever work from a guy who was lecturing other Republicans about the "11th Commandment" just a week or so ago.

Sloanasaurus said...

Nobody will rememeber Miers in a month when the next nomination is raging.

It's clearly obvious that Miers hurt Bush politically with his own base and thet Democrats are upset that the hurt is now gone.

Miers was the low point in the Bush Adm. and it was self inflicted.

Hugh Hewitt was the only major pundit out there supporting Miers, and Hugh is known to go a little crazy with some things (such as boycotting Target for getting rid of those annoying bell ringers).

Mark Daniels said...

Your opposition and that of Glenn Reynolds were based on your critiques of Harriet Miers' credentials for sitting on the Court. While I thought those critiques a bit elitist, I nonetheless thought what you said valid. There were no ad hominem attacks in your critiques.

By contrast, much of the opposition to Miers was rooted in bits of supposition and surmisal pasted together in a withering assault on her person. Miers was clearly a stealth nominee and I said so from the beginning. Her performance before the Senate Judiciary Committee might well have ended in disaster. But we also might have learned something about her. What was learned would have either legitimized her nomination or given clear reasons for opposition to it. Some conservatives though, deemed Miers guilty until proven innocent.

I agree with Hewitt's thesis: By the manner in which some conservatives have behaved in recent weeks, Democrats may feel entitled now to engage in borking and filibustering of the President's next nominee.

In none of this am I expressing an opinion on the merits of Miers' nomination. (As I pointed out on my blog, the political opinions of a pastor are and in most cases, ought, to be irrelevant.) I'm reacting to the unfairness of the treatment to which Miers was subjected by many. It doesn't bode well for future confirmation processes, that's for sure.

Mark Daniels

Henry said...

I would say that the White House did the most damage in this regard. They are the ones that used ideology as a way to drum up support for Miers' nomination. The message was entirely outcome-based: "trust us, we know she'll vote the right way when it counts."

This was all they had, because the message "trust us, we know she'll learn constitutional jurisprudence real quick" was simply laughable.

So it was the White House that set up the ideological frame by which Miers would be judged and even using their crass political checklist Miers could not withstand scrutiny.

I agree with Hewitt that this spectacle is an overall negative for the cause of electing judges on the basis of philosophy rather than ideology. Unlike Hewitt I place the blame entirely with the White House.

P_J said...

If Hugh really believes that Democrats have been holding back and playing nice, he's smoking something. The fact that "bork" is a verb demonstrates the naivete and shallowness of Hewitt's thesis. Think he'd get another perspective from Janice Rogers Brown or Priscilla Owen?

I think Hugh's hurt becuase he carried water for a unqualified nominee. All he can do now is assign bad motives to conservative opponents and warn of dire consequences. But the well was poisoned long before Miers was ever a public figure.

John said...

Hewitt's real point comes toward the end of his article: the people who opposed Miers should be judged according to "what happens, and not just with the next nominee and his or her votes on the court, but all the nominees that follow, and all the Senate campaigns that will be affected, as well as the presidential race in 2008." In other words, don't worry about the nominee, think instead of the Party.

This seems unlikely to persuade people who think the Supreme Court is important and that its justices should be well qualified.

Charlie Eklund said...

"Glaringly unqualified." Exactly right, and the only reason that I, for one, opposed her. I hated it when my man W lived up to his detractor's worst expectations and did something dumb like nominating Miers and I hope...and expect...that this sort of colossal error will not be repeated.

Mark Daniels said...

I think you hit on a key point. The President and his team gave the conservatives predisposed to opposing Miers an opening when Team Bush violated a key tenet of the stealth strategy. Key to any stealth strategy is talking up the candidate's credentials. But Bush et al started talking up Miers' conservative brand of evangelical Christianity as if to tell wavering conservatives that she could be trusted. The conservative evangelicals (not all evangelicals are conservatives, by the way) rightly regarded this as condescension and their suspicions were aroused.

Because so much of what the White House deemed credentialing involved internal communications that this Administration was loathe to make public, Miers was left defenseless. The President who nominates a "tabula rasa" for the Court must make certain not to give others the chance to paint the incomplete portrait. Miffed that they didn't get one of their "chosen ones" nominated by the President, some on the Right painted a half-informed and seemingly unfair picture of Harriet Miers.

Qualified or not, she didn't deserve to be cannibalized. But I think it's true that a White House distracted by lots of bad news set the Miers nomination up for failure from the get-go.

Mark Daniels

Joaquin said...

The Democrats will realize a bit of strength but only temporarily.
They know that they have a fight on their hands with the next nomination, a fight that they know they'll lose. That's if W "gets it right"
I don't agree that the right attacked Miers. They questioned her competency but there were no personal attacks. To me, the one that was attacked, and rightfully so, was W.

DRJ said...

Mark Daniels said:

"Miffed that they didn't get one of their "chosen ones" nominated by the President, some on the Right painted a half-informed and seemingly unfair picture of Harriet Miers."

Do you really believe that the Miers' opponents were "miffed" so this whole thing happened because a few elitists were in a snit?

By comparison, I infer from this and other posts you wrote that you believe Christian conservatives acted out of principle in the Miers' nomination. How is it principled to accept a stealth candidate solely because of back channel assurances from the Bush Administration that Miers is anti-Roe?

Frankly, I don't see why conservative Christians like Hugh Hewitt (and apparently you) need to attack other conservatives. It sounds like sour grapes, but I suspect it is the emotionally charged nature of facing an issue where the credibility of a clearly Christian President is placed in issue, coupled with the strong desire to do whatever it takes to overturn Roe vs. Wade.

I think it also offends your Christian ethics of fair play to see Harriet Miers withdrawn without a hearing. I admire all of these principles on your part. I'm glad we have good conservatives who believe in trust and loyalty and fair play.

But guess what? I am a Christian conservative, too, and I have sincere concerns about Miers' qualifications. These concerns were magnified as the information from her writings and speeches became public.

We can argue the merits endlessly, but why not trust President Bush and Harriet Miers? You asked us to trust President Bush's nomination of Miers, but you aren't willing to trust his withdrawal of her nomination. The President Bush who is bravely fighting the War on Terror is surely not afraid of a contested judicial nomination.

I submit that President Bush withdrew Miers' nomination because the Republican Senators made it clear the Senate was not going to confirm Harriet Miers because her interviews and writings showed she was not qualified.

As much as the blogosphere and conservatives might want to claim credit, it was the Republican Senators and Harriet Miers that undid the Miers' nomination.

Mark Daniels said...

I expressed neither trust or distrust for President Bush or for Miers. The question of trust for them was irrelevant to the point I've been making on this matter. I simply gave vent to my concerns over the manner in which opposition to her nomination was expressed.

Nor did I in any way imply that the stealth approach to nominating persons for the Court was right or wrong. My interest was strategic and my comment in that regard is that the President and the White House, having apparently committed themselves to such an approach to nominating persons for the Court, immediately made the error of violating a fundamental tenet of that strategy.

If you want my personal opinion, I think that stealth candidacies stink. I lament the fact that the environment in America is so poisoned that Presidents of either party may feel wary of nominating people, whether they've served as judges or not, with long paper trails.

My feeling is that Presidents, Democrat or Republican, are elected by the entire nation with the implicit understanding that they will nominate persons for service on the courts who are broadly sympathetic to their philosophy and approach to the Constitution and the law. That would be the expectation, whether the President in question were a Carter, Reagan, Clinton, or Bush.

But the confirmation process has become so hyper-politicized that Presidents apparently feel compelled to offer up stealth nominees.

I don't salute the Presidents who opt for this strategy.

I don't salute the interest groups, whatever their ideology, or the Senators, whatever their party, who engage in this sort of hyper-politicization of the process.

Am I a conservative? I get accused of being a flaming liberal by my conservative friends and of being a conservative by liberals. I'm quite accustomed to taking heat from both sides.

The point is that my assessment of what happened with regard to Miers had nothing to do either with the merits of her nomination--about which I simply had not yet formed an opinion and wouldn't have expressed it anyway--or any conservatism in my politics.

The issue for me was fairness and that's something I would squawk about no matter what the ideology of the victim.

There were legitimate reasons for having questions about Miers, of course. There were few legitmate reasons for saying that anybody had answers to those questions.

I didn't accuse the conservatives who engaged in a feeding frenzy against Miers of elitism, only bad manners. I did say that I thought that the opposition of Ann Althouse and Glenn Reynolds, which was always of a different and more responsible and circumspect variety, read a bit like elitism to me. I think that they expected credentials that we needn't expect of Supreme Court nominees. When one looks at their respective public records, for example, Miers' record displays more relevant experience for the Court than had Sandra Day O'Connor's record at the time of her nomination for in 1981. In citing this, I'm not suggesting that Miers was actually qualified for the Court; I'm only saying that what was known of her record was an insufficient basis for dismissing her as unqualified.

So, in summary, my reaction to this matter had nothing to do with ideology. The issue, as I say, was fairness.

Mark Daniels

DRJ said...

Mark Daniels -

Okay, so the issue for you is fairness.

Why is it unfair to look at a nominee's writings, speeches, work experience, and interviews to evaluate his or her qualifications for a job? Because that's what most people did - including Ann Althouse, Glenn Reynolds, and other more conservative public and private citizens. Senators had the benefit of private interviews with the nominee. Reports suggest that even the White House staffers were troubled by this nomination.

This isn't court and there is no due process right to be heard in politics. It seems important to you to see Harriet Miers get a public confirmation hearing. Could it be that you were enjoying what some believe is a Republican implosion and you hate to see it end?

P_J said...


I disagree that Miers was anywhere near as qualified as O'Connor:

Graduated from Stanford in two years, near the top of her class
Deputy County Attorney of San Mateo County, CA
1965-69 Assistant A.G. of Arizona
1969-75 Elected twice to AZ Senate and served as majority leader
1975 Elected judge of the Maricopa County Superior Court
1979 Arizona Court of Appeals

O'Connor was not presented to the public with the chief credentials of:
1) Having been Reagan's legal counsel, and
2) Reagan's personal assurances that she was solid and trustworthy.

I didn't know enough about Miers to have a strong opinion one way or the other, but I was troubled that the main defense anyone could come up with was "Trust the President."

Mark Daniels said...

The unfairness came in the insupportable characterizations of her record and her intellect that were made. Look at her record, of course. Savage her, no.

DRJ said...

Re: whether the Democrats have been strengthened by the Miers' nomination:

I don't see how Republicans are any worse off now than they were before the Miers' nomination. No matter what, some Democratic Senators will fight anyone President Bush nominates. (They even fought Roberts until it became apparent it wasn't effective.) I can't see how the Miers' nomination changes these dynamics on the Democratic side. However, I do think it bolstered the Republican support for a nominee unless the Christian conservatives stay home.

Finally, I hope that the Bush Administration will be better prepared this time. Perhaps they were lulled by the Roberts' confirmation into thinking it would be easy. They won't feel that way this time.

But even if there is some short-term damage, I think the long-term effect is to show American voters that Republicans won't march in lock-step with a Republican President when they think he or she is wrong.

knox said...

I would have said "possibly" until I went to the Daily Kos, per your Plame post. Now I'd have to say "no". The Democrats driving force is still negativity, and I don't think you can get far on that.