Tuesday, October 04, 2005

Avoiding The Good Fight

I expressed disappointment over President Bush's nomination of Harriet Miers yesterday. Cassandra asked for patience and asked that we all give the nominee a chance. I expressed the desire to reach a hasty conclusion without the opportunity for reasoned reflection. Cassandra's opinions are always highly regarded at the Cheese, but I must disagree, even after a night to sleep on it. My disagreement has nothing to do with Miers as a potential justice. It has to do with the nomination of a "stealth" (and we mean stealth) candidate.

The President's nomination of Judge Roberts placed a limited judicial record in front of Congress. While his political career and his few judicial opinions were clearly conservative, they were hardly groundbreaking in their Constitutional controversy. In the end, the debate had little with which to work and the nominee easily passed. As he should have. He was not only qualified but he was clearly the smartest man in the room whenever he was in Congress or the White House.

It appears though that Roberts' hearings made the President nervous. Miers is hardly the nomination of a President desiring to clearly fulfill his promises and lead the country in a debate over judicial philosophy.

From what I have seen, Miers has mostly political and administrative experience, a corporate law background, and little litigation experience. What litigation experience she does have, and we can quibble over the term "little," does not appear to have involved Constitutionally significant issues. Is she a lawyer? Yes. Is she "qualified"? Probably, to the extent that any lawyer is. Does her resume inspire even the slightest bit of confidence? No. Even had Roberts never served on a Court, at least he advised a President in Constitutional issues, represented the the United States in Constitutional litigation, and was an accomplished, maybe the most accomplished, advocate before the Supreme Court. I cannot tell if Miers has ever seen the inside of the Supreme Court.

The President has made a nomination that appears designed to avoid what this country really needs: an open and honest debate over the role of the Courts. Roberts' nomination only touched on this subject. The President had a chance to focus the nation's attention on his promise to appoint judges in the mold of Scalia and Thomas, and why they are the model of a proper Federal judiciary.

The nomination of a well known, on the record, judicial conservative would have engaged a healthy debate that this country needs. Any number of qualified persons could have filled this role.

Moreover, there is no doubt that the President would have won. On what issues would he have lost? Do the people want a more intrusive judiciary? No. Do the people want a judiciary that overturns parental notification laws for abortion or partial birth abortion laws? No, they don't, not even in liberal California where such laws pass the legislature. Can the people understand that the political process is important only when the Judges let it work in those areas reserved to it? They can if one leads them.

We will also no doubt be told that President Bush knows Ms. Miers and that should matter. I suppose it might. But Bush promised to give us more people like Scalia and Thomas on the Court. We could all see, even if we aren't certain, how Roberts could fulfill that promise. Nothing we will see will convince us that Miers does.

We are asked to take it on faith that the President knows Miers well enough to know she is a conservative. Well, pardon me, but this is not a President that inspires such faith. The only area he seems steadfast is in the WOT. In all other matters, he is nothing special. This "conservative" President has given this country a huge entitlement program with his Medicare drug bill, huge domestic spending deficits even ignoring the WOT (and despite revenue increases brought on by tax cuts), steel tariffs (now repealed), a "highway" pork bill that would make a prostitute blush and ZERO Presidential vetoes.

While some of Bush's appointments are to be celebrated, his appointments to several agencies have appeared poorly considered and unqualified, with the latest fallout being FEMA's chief. This is not an appointment to run HUD. I should not have to take President Bush's Supreme Court nominee on faith. If President Bush's "conservative record" were the evidence upon which I must base my faith in God, then I would be agnostic.

There are 55 Republicans in the Senate. When is this country going to be more ready to have this debate? Probably never, at least in the short run. The President had the opportunity to make a statement. A well qualified, judicial conservative deserves a fair hearing and vote. The President shied away from that statement. Instead of taking on the true role of judicial philosophy, he would rather argue over qualifications and cronyism. If that makes you more comfortable, Mr. President.

The Republicans also had the opportunity to state, once and for all, that Borking doesn't work any longer. If a hard core, far from center leftist (see, e.g., Ginsburg) can pass with hardly a protest vote, then so can her polar opposite. The Republicans, and President Bush in particular, failed to lead us on this debate and proved to be cowards.

What is the result of this cowardice? The first lesson to young lawyers and judges with higher court hopes or aspirations is that they must hide their feelings. Never speak publicly and take a position on the issues of the day. Never write an op-ed column. Do not blog, at least while offering opinions. Don't join the Federalist Society. Keep one's firmly held judicial philosophy close to the vest, or you may have to actually take on Congress when the confirmation process arrives, if the President has the courage to nominate you.

Is this the message we want to send? Is muting our brightest legal minds and leaving the political commentary to hacks like me healthy for a democracy? I know not.

President Bush evidently disagrees.

UPDATE: Related points here (on trusting Bush's character references) and here (on rebutting arguments similar to those I addressed).

I'M FISKED: This post is fisked by Cassandra at Villainous Company. You will excuse me now. I have to go lick my wounds.

UPDATE: spd rdr at Heigh-Ho sums up some feelings I have. And he is nicer about it.

8 Comments:

At 12:31 PM, Blogger tee bee said...

I think the nomination is part habit (to promote loyals who've replaced other appointees), part payback for loyalty, and part stealth.

I said it before about his Katrina response: Bush is showing signs of media shell-shock, and it's a problem.

They're calling her Souter II. I hope they're wrong.

 
At 3:46 PM, Blogger tee bee said...

PS Harriet has her own blog, Harriet Miers's Blog. Hey - it worked for Roberts.

 
At 6:03 AM, Blogger Cassandra said...

Miers is a member of the Federalist Society KJ.

 
At 8:34 AM, Blogger KJ said...

So was Roberts. But in the future, that would not be advisable. Just as it would not be advisable to write any scholarship materials taking any sides.

 
At 9:01 AM, Blogger Cassandra said...

Apparently the "message" we're sending now is that all you have to do to stop the Republican party dead in its tracks is outrage the hard Right - they will threaten to defect and turn on their leader in a heartbeat.

I know you have said you will support this nomination KJ, but I am still troubled by the attacks on the President's character. You can think what you want, but I don't say everything I think in public, and you are just feeding the lions. I hope you all know what you're doing, because it's a mystery to me and you're really hurting and alientating many within the party.

Epithets like "coward" are over the top IMO. Actions one disagrees with can be characterized in more than one way, and an honest opponent doesn't stoop to character assasination without a damned good reason. I don't believe you or anyone else who has leveled this charge has met the burden of proof, but you've sure made Harry Reid's day.

 
At 9:52 AM, Blogger KJ said...

Harry Reid's day was made when the nomination was announced. She was one of the people Harry suggested. Bad evidence right off the bat IMO.

And "coward" is used in the political sense. It isn't an attack on his true character. Bush hasn't necessarily broken his promises on Judges (I think he has on social security reform). He is a politicain and made a political move, I think, to avoid a fight he wanted to avoid. That isn't a character charge, though I see where "coward" has that connotation. So let me clarify: the move was a politically expedient one if the goal is avoid a debate and fight over an ancknowleged conservative judge. And in that limited respect, I think one can be suspicious that Bush wasn't up for the fight.

I acknowledge that Bush may believe in Miers and think she is the best choice. The objective evidence doesn't suggest that she is more qualified than a lot of other names that were batted about, though she may certainly be up for the job.

And I'm not on the hard right. I disagree with the hard right all the time. Our drug war, Padilla and other issue debates should have made that clear.

And I'm not "in the party" and never claimed to be. I don't do this to get loved by Republicans. I have never claimed to be a Republican, and I am not. The current spending spree is one big reason why. The Republicans need to be kicked out of Congress for not living up to their promises on the domestic front. They have been lousy stewards of the public treasury.

Just because I support Bush on the WOT, which along with taxes are the ONLY reasons I voted for him, doesn't mean he gets a free pass on everything else. I will not turn a blind eye to a nomination that I think sends the wrong message.

If my rhetoric was too strong, then I'll think that one over. I think the Reps would be better off with a Luttig or McConnell or Estrada or Brown nomination, and I think Bush had been battered by Katrina and the WOT coverage and didn't want that battle, for whatever reason.

The debate over a well known nominee would be a good thing, I think, so I'm going to let the President have it in case Stevens retires and he gets another shot to get it right.

There will be nothing to debate over Miers, except qualifications and cronyism. Not b/c those are correct allegations, but b/c there is nothing more on the record to debate. That is sad for America.

 
At 6:25 PM, Blogger Cassandra said...

She was one of the people Harry suggested

Wow. You mean there *might* have been a reason other than what's between her legs for picking her?

The mind boggles.

There will be nothing to debate over Miers, except qualifications and cronyism

That's absolutely not true. They will ask all the same things they asked Roberts: abortion...err....stare decisis, affirmative action (oops, George Will has taken care of that by announcing to the entire fricking world that she is little more than an affirmative action hire, so maybe the Dems will give her a pass on that - thanks George, you condescending son of a b**ch), civil rights, all the hot button issues the Dems care about.

 
At 6:26 PM, Blogger Cassandra said...

And I didn't fisk you, KJ.

I picked your post because it was the best one on point that I'd seen, and the only one I thought worthwhile taking on.

It wasn't a fisk, it was a compliment.

 

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