November 2, 2005

What brought down Miers and what that means about Alito.

David Broder writes in the WaPo:
The conservative screamers who shot down Miers can argue that they were fighting only for a "qualified" nominee, though it is plain that many of them wanted more -- a guarantee that Miers would do their bidding and overrule Roe v. Wade . But whatever the rationale, the fact is that they short-circuited the confirmation process by raising hell with Bush. Certainly there can be no greater sin in a sizable bloc of sitting senators using long-standing Senate rules to stymie a nomination than a cabal of outsiders -- a lynching squad of right-wing journalists, self-sanctified religious and moral organizations, and other frustrated power-brokers -- rolling over the president they all ostensibly support.
Let's be clear about what happened with the Miers nomination. It did not collapse because of the criticism from those who wanted a committed conservative and certainly not from people who wanted someone to "do their bidding and overrule Roe v. Wade." If Bush had picked an able, well-credentialed nominee who would not clearly commit to a strongly conservative position, this group might not even have kicked and screamed. Indeed this is what Bush did in nominating John Roberts, and they did not kick and scream. But the Miers nomination did not go down not because the strong conservatives spoke up. It went down because more moderate Republicans could not support her. Her insubstantial record and her failure to present herself creditably in the one-on-one meetings ruined the nomination.

It takes some effort to read the last sentence in that Broder quote. Is Broder a terrible writer, or is he just clotting up the words right there so you won't notice the sleight of hand? In plain English, he's saying that the right-wingers who brought down Miers were so terrible that it justifies using the filibuster against Alito. But the conservatives who began the attack on Miers weren't that terrible. They weren't asking for someone to "do their bidding and overrule Roe v. Wade." Bush, pathetically, tried to defend his nomination of Miers by signaling to conservatives that she would vote against abortion rights, and conservatives let him know they wanted a justice committed to conservative jurisprudence, not just someone who would supposedly vote a certain way on one issue. And, in any event, those conservatives didn't bring down Miers.

Broder's attempt to justify filibustering Alito fails miserably.


XWL said...

I suspect all this spinning regarding the Alito nomination and comparisons to the Miers nomination will cause the sort of friction that produces a great deal of heat but barely any light.

(and it's noble of you to try and unspin the spin, even though I am a partisan I don't expect you to go easy on the Republicans, but unlike with the Miers nomination I think a dispassionate objective appraisal of Judge Alito will overwhelmingly favor confirmation unless there is some hidden biographical bomb yet uncovered, if there was a real doozy of an opinion it would already be out there, so far the bombshells from the Democrats have thudded without any explosions)

Hard to believe at the time of this post it hasn't yet been 48 hours since the official announcement of Alito's nomination, if the Democrats get their wish and push the hearings into next year (which hopefully they won't) it's going to be difficult to keep track of all this mess and sort the outright lies, from the half-truths, and the facts (which is probably the Democrats main hope for thwarting Alito).

Gerry said...

"They weren't asking for someone to "do their bidding and overrule Roe v. Wade." Bush, pathetically, tried to defend his nomination of Miers by signaling to conservatives that she would vote against abortion rights, and conservatives let him know they wanted a justice committed to conservative jurisprudence, not just someone who would supposedly vote a certain way on one issue."

In other words, it was not only Broder who expected movement conservatives to be mollified by Roe assurances. Apparently, so did Andy Card and President Bush.

I am befuddled why it is so hard to understand movement conservatives. We generally are very straightforward in stating what we want.

Thank you for the defense here, Ann. You seem to be one of the few who are willing to buck the trend.

ALH ipinions said...


With all due respect, it’s not Broder’s writing that strains comprehension; instead, it’s the rationalising by conservatives to justify borking Miers.

“…[A] well-credentialed nominee” indeed! But who are you or they to determine what credentials suffice in this respect. The president clearly thought Miers was well-credentialed. Was Clarence Thomas well-credentialed? I know many of the “right-wingers” who dissed Miers and denied her a fair hearing to defend her credentials thought so.

Go figure!

Ann Althouse said...

ALH: "But who are you or they to determine what credentials suffice in this respect." What are you talking about? I am someone who has been studying law and the Supreme Court for 27 years!

Too Many Jims said...

I think you are unfairly characterizing Broder's piece when you conclude: "Broder's attempt to justify filibustering Alito fails miserably."

Indeed, Broder explicitly says: "None of this is to suggest that Judge Alito will be -- or should be -- blocked from elevation to the seat of Sandra Day O'Connor."

I took the jist of the piece to be that the mantra that every nominee is entitled to "a full and fair hearing and an up or down vote" rings hollow after the Miers fiasco. And I think he is right. Republican Senators cannot say that they are "going nuclear" because all nominees deserve an up or down vote.

[I completely agree with you about the final sentence of that paragraph. The only way I can make it readable is to read it with a different word. Specifically I read the clause "there can be no greater sin in a sizable bloc of sitting senators" as "there can be no greater sin than a sizable bloc of sitting senators."]

ALH ipinions said...


Please forgive my apparent impudence.

I did not intend to impugn your well-credentialed standing as a legal scholar and guardian of the integrity of the Supreme Court. Instead, I wanted only to respectfully suggest that the president's constitutional authority and fairness for Ms Miers were betrayed by members of his own Party for unsustainable political reasons.

Again, there's glaring (or perhaps egregious) Supreme Court precedent for the Miers nomination. And, I find it instructive that you do not dispute this fact.

Ann Althouse said...

ALH: Read my old posts about Miers. I'm not going to re-engage with those issues here.

paulfrommpls said...

The idea that the Miers nomination was destroyed solely by "right-wing screamers" has taken hold as fact in the major media, and is example 4,564 of how liberal media bias works. Liberals don't see it as bias because "it's true!" and consider anyone pointing it out a right-wing screamer trying to stifle good solid truth-telling and reporting.

It's sad, because an important part of the story was some conservatives being willing to oppose the president because they think the SC is too important for anything other than supreme constituional thinkers. So an opportunity for the liberal masses to learn something important about the conservative world they hate and fear instead becomes another reason justifying their hate and fear.

Will someone make me some breakfast?

Henry said...

Can anyone find a "right-wing" conservative who ever suggested that Miers should be filibustered? Sure, many conservatives (and moderates and liberals) put pressure on the Miers nomination, but this was the pressure of advocacy, the obligation of citizens. Miers withdrew but no "right wingers" that I'm aware of ever suggested she be denied a hearing or a vote if she had not.

And frankly those conservatives and moderates and liberals who opposed Miers had it right. It is the "let's sit on our hands and spin afterwords" party that failed to be serious. Again.

Dave Schuler said...

Ann, I think that there are in fact three threads to the web that brought down the Miers nomination. Her formal credentials were scanty. Conservatives and libertarians (two distinct interests) were skeptical that her opinions would be reliably __________ (insert your preference here). And only the most devout party Republicans were willing to just take GWB's word that she was a good nominee.

I don't think we can separate these threads with any real confidence. Would the various folks that opposed Miers have done so if she'd been a sitting judge for twenty years without obvious leanings one way or another and without having attended an elite school? Attended elite schools but never been a judge and had no track record? We'll probably never know.

Matt said...

Speaking as the obligatory liberal, I opposed Miers not because of judicial philosphy or political views (we didn't and still don't know pretty much ANYHING about that) or because of who appointed her (there are a fair number of liberals who would assert that if Bush nominated, say, Alex Kozinski or Richard Posner, they should automatically be opposed because "it's from Bush!"), but because of the yawning gap between her credentials and the post she was nominated for. Ms. Miers would have made a perfectly acceptable nominee to the US District Court for the Northern District of Texas or even, probably, the Fifth Circuit, but SCOTUS?

Sammler said...

Wasn't the Miers nomination eventually withdrawn because of lack of support among, erm, Senators?

paulfrommpls said...

Hypothetical: What if W had nominated a highly well qualified moderate? The conservatives would have squawked real, real loud, but I think she would have passed.

If, that is, W had meant to nominate a moderate. If he nominated a moderate and sold her as a solid conservative, then the base would explode, and (as was the case with Miers) completely justifably: it's perfectly okay for a president's own to point out to him he's either not telling the truth or he screwed up.

jinnmabe said...

the Democrats are more than welcome to engage in all of the tactics against Alito that "conservatives" used against Harriet Miers. They can write blog posts criticizing his credentials, they can call and write their senators, urging them to vote no on the nomination, etc. But don't pretend that a filibuster would just be more of the same, or tit for tat.

Adam said...

Respectfully, Ann, it was the conservatives who brought her down, and they used ideology to do so. Via Time Magazine:

". . . But it turns out the man most responsible for taking Miers down was an insider, the G.O.P.'s fourth-ranked Senator, Jon Kyl (rhymes with smile). The second-term conservative from Arizona argued at length in meetings with majority leader Bill Frist and G.O.P. whip Mitch McConnell that the Miers nomination was too risky ideologically and too costly politically, sources on Capitol Hill tell TIME. From Day One, says a G.O.P. staff member, "[Kyl] was trying to kill Miers."

"The influential Judiciary Committee member and his staff organized internal whisper campaigns, say Republican sources, that led to newspaper articles damaging Miers. The strategy was so successful, G.O.P. staff members say, that the White House called Kyl to object.

"Undaunted, his staff spread word of the disastrous meetings Miers was holding with Senators until White House officials finally said they were canceling the rest of the sit-downs a week before Miers withdrew her nomination, say Hill sources.

"Kyl's coup de grace came last Wednesday after the Washington Post unearthed pro-choice language Miers used in speeches a decade ago.

"That morning, after Frist told Bush he didn't have the votes to get Miers out of committee--let alone confirmed--the President sent chief of staff Andy Card and other White House officials to the Hill to try to save the nomination. But Kyl and his team fought back, G.O.P. staff members say, and used the Post article to help keep Senators opposed to Miers and to bring at least one other Senator into the undecided
camp. At 9:30 p.m., Frist called Card to tell him it was over, and Miers' withdrawal was announced 12 hours later."

whit said...

Ann: You "rolled the President and left him face down in an alley without his wallet." :)

Confession: Much as I would like to take credit, Jonah Goldberg posted those words from one of his readers on NRO.