Harriet Miers - Opinions on Nomination?

[pigeonmeister]

Harriet Miers has an impressive record as a lawyer but does anybody know how she would affect the political balance of the Supreme Court? It seems to me that she holds the most important attribute as far as Bush is concerned i.e Loyalty. It also appears that the nominee had to be a women, and in my opinion female conservatives are more marketable and as such provide an easier opportunity to swing the balance to the right.

Yet it is very difficult to say exactly what her politics are. "Ms. Miers, 60, a longtime confidant of the president's, has never been a judge, and therefore lacks a long history of judicial rulings that could reveal ideological tendencies. Her positions on such ideologically charged issues as abortion and affirmative action are not clear." (NYT)

I have 4 questions

1. Is her lack of judicial experience a problem (Rehenquist had no previous experience on the bench)

2. Will her lack of a judicial record, and fact that she is a women, give the Democrats less ammunition to attack her.

3. Should Bush be nominating a long time confidente and member of his inner circle?

4. Does the fact that she is a long time confidente suggest she is broadly conservative, and as such will (if appointed) change the political balance of the S.C?

[Larrison]

Originally Posted by pigeonmeister

Harriet Miers [ ...]
1. Is her lack of judicial experience a problem (Rehenquist had no previous experience on the bench)

2. Will her lack of a judicial record, and fact that she is a women, give the Democrats less ammunition to attack her.

3. Should Bush be nominating a long time confidente and member of his inner circle?

4. Does the fact that she is a long time confidente suggest she is broadly conservative, and as such will (if appointed) change the political balance of the S.C?

Haven't made up my mind on her yet -- haven't read much about her, her experience, and her opinions yet. But I can answer a coupe of questions

1) Experience -- Let's read what her past work has been, then I'll give an option. But no judicial experience starts her a bit behind the block IMHO.

2) Woman and lack of judical record -- Yes this gives less ammo to attack her, but that's sort of like saying 2 drops less in a thunderstorm.

3) Inner circle -- IMHO, that would not be my choice, since I believe such a position should be the best qualified, period. On the other hand, it should not be a disqualifier either.

4) Confidente= conservative? Maybe -- I'd be willing to say probably. So? Depends upon their overall positions, not a specific political litmus test. Will this change the political balance on the court? First of all, I hate the word "political balance" applied to the court. Secondly, there are no political setasides in the application of justice, and I'd like to keep it that way. So... let's look at her background and her past experience and options -- and in the future consider what decisions she might make would depends upon the specifics of the cases they see, and the specifics of how they interpret how the consitution applies to future cases.

[Gav]

I wondered how long it would be befor someone asked these questions. I don't know enough about the american judicial system to form my own opinions but, if she were in the equivalent UK position, I would wonder about her lack of experience as a judge. This idea of 'loyalty' to Bush would also concern me as it seems to indicate that her loyalty is not with the judicial system; rather it lies with junior.

I would be very interested to hear what the informed board members think.

Here's what the Beeb thinks:

Bush picks aide for Supreme Court

[pigeonmeister]

Originally Posted by Larrison

1)Haven't made up my mind on her yet -- haven't read much about her, her experience, and her opinions yet.

2) Woman and lack of judical record -- Yes this gives less ammo to attack her, but that's sort of like saying 2 drops less in a thunderstorm.

3) Inner circle -- IMHO, that would not be my choice, since I believe such a position should be the best qualified, period. On the other hand, it should not be a disqualifier either.

4) Confidente= conservative? Maybe -- I'd be willing to say probably. So? Depends upon their overall positions, not a specific political litmus test. Will this change the political balance on the court? First of all, I hate the word "political balance" applied to the court.
Secondly, there are no political setasides in the application of justice, and I'd like to keep it that way. So... let's look at her background and her past experience and options -- and in the future consider what decisions she might make would depends upon the specifics of the cases they see, and the specifics of how they interpret how the consitution applies to future cases.

1) Agreed, I assume that we will not know much about her until she goes through her grilling in Washington.

2) Not sure about that, it is easier for Democrats to highlight a personal ideology through a judicial record and easier for them to use this in said 'grilling' to greater effect. I'm sure that Ms Miers will give the standard response of dedication to the constitution and commitment to apolitical judicial oversight. It has to be more difficult to challenge her on specefics, if she has no record.

3) Agreed.

4) not totaly agreed. If I accepted that there are "no political setasides in the application of justice" then I would have to accept that Bush is not making a conscious effort to swing the ideological balance of the judiciary in general to the right. I do not accept this. I think politics do come into a nomination, it is up to the Senate to stop this going over the top. In this sense they (the senate) are guardians of the ideological balance, hence the trade off and politcal bargaining that accompany appointments. I have no doubt that once appointed judgements are made on the specefics of the case. Yet it would be wrong to rule out any ideological role in any human decision (which I believe are inherently subjective)

[Philistine]

My concern is that it seems her major qualification is her political allegience to Bush.

Her bio is BS & JD from SMU, apparently without any particular distinction. (Interestingly, her BS was in mathematics--that's a plus, to me ). Private practice afterward, and was Bush's private attorney. Served as president of Dallas and Texas Bar associations. Never argued a case in front of the Sup. Ct. Once Bush became Governor, was head of TX Lottery Commission. Then came to D.C. when Bush was elected President she was "staff secretary" then was deputy chief of staff and for the past year she has been White House Counsel.

Just doesn't really seem qualified to me.

Her background seems a lot more like FEMA's Michael Brown, then it does John Roberts' (or Ruth Bader Ginsburg's or Sandra Day O'Conner's)

I look at her qualifications, and I see a political crony. Maybe more will come out later to change my mind--but from what's around now, her qualifications seem lackluster, at best.

FWIW--I don't think not having served as a judge before is necessarily a bad thing. I think bringing someone on who is closer to the actual practice of law is good--in that regard, Roberts had only been a judge for a few years before his nomination.

--Philistine

[Have At You]

It's apparently not that rare for non-judges to be appointed to the Supreme Court. And it's not uncommon for them to come from within the President's immediate circle. 10 of the 34 Justices appointed since 1933 came from within the president's administration, not from the judicial branch.

A few of the justices for whom the high court bench was their first judgeship were: William Rehnquist, Byron White, Lewis Powell, Arthur Goldberg, Earl Warren, Tom Clark, Hugo Black, William Douglas, Felix Frankfurter and Louis Brandeis. Some greats in there.

[Mr Epee]

As an epee fencer, my concerns are the following.

I'm worried that this is not the real nomination.

This is a woman with questionable credentials. If she is not confirmed, then the administration can pull a "see we gave you a woman, but you didn't want her" stance and then nominate someone with nominally better credentials, and strong conservative "values".

This forces the minority party to reject a woman, and strengthen the base of the majority at the same time.

Originally Posted by Letterman Last night

Top Ten Signs Your Supreme Court Pick Isn't Qualified

10. "Lost 10 grand yesterday in the 'case' of Jets vs. Ravens"
9. "Spends most of her time trying to fit the gavel into her mouth"
8. "Her legal mentor: Oliver Wendell Redenbacher"
7. "Asks courtroom stenographer to, 'Quit that annoying tapping!'"
6. "Instead of Constitutional law books, consults set of 'Garfield' paperbacks"
5. "Keeps shouting, 'When does mama get to hang somebody?!'"
4. "When Scalia walks by, she pretends to cough and says, 'Rogaine'"
3. "Authored the book: 'I'm Not Qualified to be a Supreme Court Justice'"
2. "The closest thing to courtroom experience was being an extra on 'Matlock'"
1. "Glowing letter of recommendation from former FEMA director Michael Brown"

[jeff]

In today's Wall Street Journal Op-Ed page, the nomination is described under the one-word title "Cronyism". When the WSJ labels a Bush nomination that way, you know things have gotten out of hand.

[YankeeRebel]

Originally Posted by jeff

In today's Wall Street Journal Op-Ed page, the nomination is described under the one-word title "Cronyism". When the WSJ labels a Bush nomination that way, you know things have gotten out of hand.

I would take the Wall Street Journal's criticism with a certain amount of reservation. The neo-cons appear to be very upset with Bush for picking somebody who isn't a clear orthodox conservative ideologue. The editorial staff of the WSJ belongs to that same neo-con camp.

The WSJ maybe criticizing "cronyism," but chances are they are using it as an excuse to demand a different, more ideological and extreme, candidate.

[jeff]

It's both: the editorial took the tack you describe, and the Op-Ed took the "cronyism" issue. So, you're right: the WSJ editors wanted a visible conservative, and the Op-Ed (produced by a law professor) went after the crony charge.

[Have At You]

YR:

1) Neocons are not the same as "orthodox conservative ideologues"

2) The piece was an op-ed by a law professor, not an editorial by the WSJ, so does not necessarily reflect their position. This paper, actually, is noted for publishing pieces by people whose views are opposite to those of the editorial board. [The author, Randy Barnett, is the Austin B. Fletcher Professor of Law at Boston University and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2004).]

3) Why not read it yourself and see what the fellow said, rather than jumping to conclusions:

===

Cronyism
Alexander Hamilton wouldn't approve of Justice Harriet Miers.

BY RANDY E. BARNETT
Tuesday, October 4, 2005 12:01 a.m. EDT

During the Clinton impeachment imbroglio, Alexander Hamilton's definition of "impeachable offense" from Federalist No. 65 was plastered from one end of the media to the other. With the nomination of Harriet Miers to the Supreme Court, get ready for another passage from Hamilton to get similar play--this one from Federalist No. 76:

"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."

Harriet Miers is not just the close confidante of the president in her capacity as his staff secretary and then as White House counsel. She also was George W. Bush's personal lawyer. Apart from nominating his brother or former business partner, it is hard to see how the president could have selected someone who fit Hamilton's description any more closely. Imagine the reaction of Republicans if President Clinton had nominated Deputy White House Counsel Cheryl Mills, who had ably represented him during his impeachment proceedings, to the Supreme Court. How about Bernie Nussbaum?

As the quote from Hamilton suggests, the core purpose of Senate confirmation of presidential nominees is to screen out the appointment of "cronies," which Merriam-Webster defines as "a close friend especially of long standing." Cronyism is bad not only because it leads to less qualified judges, but also because we want a judiciary with independence from the executive branch. A longtime friend of the president who has served as his close personal and political adviser and confidante, no matter how fine a lawyer, can hardly be expected to be sufficiently independent--especially during the remaining term of her former boss.

By characterizing this appointment as cronyism, I mean to cast no aspersions on Ms. Miers. I imagine she is an intelligent and able lawyer. To hold down the spot of White House counsel she must be that and more. She must also be personally loyal to the president and an effective bureaucratic infighter, two attributes that are not on the top of the list of qualifications for the Supreme Court.

To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. Nothing in Harriet Miers's professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people. It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement.

Even a star quarterback with years of high school and college football under his belt takes years of experience and hard knocks to develop the knowledge and instincts needed to survive in the NFL. The Supreme Court is the big league of the legal profession, and Ms. Miers has never even played the judicial equivalent of high school ball, much less won a Heisman Trophy.

Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.

Given her lack of experience, does anyone doubt that Ms. Miers's only qualification to be a Supreme Court justice is her close connection to the president? Would the president have ever picked her if she had not been his lawyer, his close confidante, and his adviser? Of course, Hamilton also thought that the existence of Senate confirmation would deter the nomination of cronies:

"The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other."

While the Senate once successfully resisted President Lyndon Johnson's attempt to nominate his own highly able crony, Abe Fortas, to be chief justice, perhaps the performance of senators during the Roberts nomination reduced the deterrent effect of "advise and consent." Judiciary Committee Democrats spent half their time making speeches rather than questioning. What questions they did ask were not carefully designed to ferret out the nominee's judicial philosophy, favoring instead to inquire about his feelings, or whether he would stand up for the "little guy," or bemoaning his refusal to telegraph how he would rule on particular cases likely to come before the court.

For their part, Senate Republicans were content to parrot the empty line that a judge "should follow the law and not legislate from the bench." Sit tight and vote seemed to be their approach. By refusing to demand a nominee with a judicial philosophy of adherence to the text of the Constitution--the whole text, including the parts that limit federal and state powers--Republicans did nothing to induce the White House to send up a nominee who was at least as committed to limits on federal power as Chief Justice William Rehnquist and Justice Sandra Day O'Connor had been.

Times like these demand a justice with a firm grasp on constitutional text, history and principles. Someone who can resist the severe pressure brought by Congress, by the executive branch, by state and local governments, and also by fellow justices to exceed the Constitution's limits on government power. Does anything in her record suggest that Harriet Miers will be that sort of justice? We do not need to wait for Senate hearings to answer this question. What hearings will tell us, however, is whether the Senate, too, will succumb, in Hamilton's words, to "a spirit of favoritism."

[YankeeRebel]

Originally Posted by Have At You

Neocons are not the same as "orthodox conservative ideologues"

True. True conservatives (people who believe in limited government, limited spending, limited foreign intervention) are appalled by the actions and agenda of the neo-cons.

[Slim]

Originally Posted by YankeeRebel

True. True conservatives (people who believe in limited government, limited spending, limited foreign intervention) are appalled by the actions and agenda of the neo-cons.

Not all of us.

[jeff]

Interesting. How do you reconcile the conservative values of limited government, limited spending, limited foreign intervention with the neo-cons unlimited government, unlimited spending, and unlimited foreign intervention?

[jeff]

Well, here's a reason to be against Harriet Miers: she lawyered for the Evil Empire, Microsoft, arguing that that people who were sold defective software by Microsoft weren't "injured," and couldn't participate in a class action against the company. See http://www.slingshot.org/?p=135

[Epee_Pox]

And who can forget how she advocated using soy sauce ... soy sauce! ...to get rid of carpet stains.

[jeff]

Ooh! And probably drinks red wine with fish!

[Larrison]

Originally Posted by jeff

Ooh! And probably drinks red wine with fish!

Hah! You try a wimpy chardonnay with blackened Cajun style redfish -- that stuff makes white wine taste like water... You need something that will cut through the spice -- like a new, rough Cabernet...

Oh.. we weren't talking about food? Darn...

[D+F+P=Hadouken!]

she looks scary....

[darius]

Interesting. How do you reconcile the conservative values of limited government, limited spending, limited foreign intervention with the neo-cons unlimited government, unlimited spending, and unlimited foreign intervention?

Corddry: Everything the president is doing is perfectly in keeping with the conservative ideal of limited government.

Stewart: How is what the president is doing limited government?

Corddry: This president believes government should be limited not in size, Jon, but in effectiveness. Now in terms of effectiveness, this is the most limited administration we’ve ever had.

darius