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October 18, 2005
Miers 2.0: Same Bugs, Less Features

The effort to roll out a new campaign in support of Harriet Miers' nomination to the Supreme Court fell far short of what the White House needs to get conservatives on its side. Instead of focusing on the nominee's credentials, the White House counsel wound up in a controversy over inconsistently discussing specific cases with specific senators and getting caught out by a presumably sympathetic Judiciary Committee member, while both left and right found new issues on which to base their criticism.

According to Charles Schumer, Miers would not talk about specific cases like and (in his opinion) did not seem to know much about Supreme Court case law, in a conversation he called "unproductive":

President Bush's nominee for the Supreme Court, Harriet Miers, won't be ready for a confirmation hearing November 7 because she "needs some time to learn" about landmark constitutional cases, Senator Schumer said yesterday.

Mr. Schumer, a Democrat of New York who sits on the Judiciary Committee that will grill Ms. Miers, met with her yesterday and emerged to tell reporters that she claimed she had never discussed the Supreme Court case that struck down anti-abortion laws, Roe v. Wade, with anyone in a three-decade legal career. He said she told him that she will have to think about whether she supports Griswold v. Connecticut, a 1965 privacy case that established the legal groundwork for the later abortion ruling.

But later on yesterday, GOP Judiciary chair Arlen Specter claimed that he and Miers had a much different chat about Griswold:

After their meeting, Specter told reporters that Miers told him she believed the 1965 case of Griswold v. Connecticut -- a landmark ruling establishing the right to privacy -- was "rightly decided."

But when the White House took exception to Specter's comments, the Pennsylvania Republican released a statement saying Miers later called him to tell him that he had "misunderstood" her answer.

Specter said she told him she had not taken a position on either Griswold or the right to privacy, the legal underpinning for the 1973 Roe v. Wade decision legalizing abortion.

Specter's statement did not withdraw his comments about Miers discussing Griswold with him, nor did it offer a correction. But the statement said the chairman accepted Miers contention "that he misunderstood what she said."

Griswold provided one stumbling block, one that will probably keep Specter chagrined; he wants a candidate that will respect stare decisis enough to keep Roe in place, but has also pledged to support any well-qualified candidate Bush nominates. Schumer has plenty of reason to make mischief on Miers, but Specter has less to gain from deliberately twisting her words for public consumption. It appears that Miers has had some problems communicating her understanding of an important and potentially troublesome precedent -- a development which bodes poorly for her upcoming Judiciary Committee hearings.

In the meantime, John Fund apparently thinks that the hearings will wind up involving an old bete noir of George Bush, thanks to the White House's touting of Miers' efforts in cleaning up the Texas Lottery Commission. He hinted that Ben Barnes might wind up on the witness list, courtesy of Miers' work for Bush in Texas on the Hugh Hewitt show (guest-hosted by former Undersecretary of Defense Jed Babbin):

JF: Oh, the Texas Lotter Commission is coming, of course. The Texas Lottery Commission is going to be very important, because it involves a Democratic lobbyist, Ben Barnes. It involves an executive director of the Texas Lottery Commission who was fired by Harriet Miers, who sued over his firing, got a $300,000 settlement, files were sealed. This fellow lives in New York right now. His name is (Lawrence) Litwin, he's a former control data executive, and he says the following: I can't talk about this, because of the confidentiality agreement. But if the Senate subpoenas me, I want to come, and I want to testify. And that opens a whole can of worms about President Bush, and scandals in Texas.

JB: President Bush tied personally to this scandal?

JF: His aides tied personally to this scandal, regarding the Texas Lottery Commission. And, out of concern that certain things regarding Mr. Bush's service in the Air National Guard. Remember that story?

JB: Oh, good grief. Is that again?

JF: Look, again, I don't think there's much there. But the point is the Harriet Miers nomination give the Democrats and the media another bite at the apple, because they weren't finished with the 60 Minutes fake memos. They want another bite at the apple.

John Fund has not exactly been an enthusiast of the Miers nomination up to now; he previously wrote that at least a half-dozen bombshells await this nomination in committee hearings. One would suspect that the White House has already prepared itself for the less-savory aspects of Texas politics to arise during testimony, especially given the close relationship Miers had to Bush during those years. However, the administration staff still shows signs that they simply are not up to effectively promoting this candidate, as Dana Milbank rather gleefully points out in today's Washington Post:

The White House took a different view. After Bush met with six former justices from the Texas Supreme Court, brought to town to stump for Miers, they were dispatched to the north driveway of the White House to dispense superlatives: "Top-notch legal ability." "Excellent lawyer." "A lawyer's lawyer." ...

If the Texas judges were trying to reassure antsy conservatives, they didn't accomplish much. "I know this," [former Chief Justice John L.] Hill said. "Whatever her personal view might be on any subject, it will not influence her decision making on that court." That would seem to discredit the argument, encouraged by the White House last week, that her born-again Christian beliefs made her an opponent of the Roe v. Wade decision.

Carl Cameron of Fox News tossed aside the credentials and asked the judges to describe something Miers did that "led to a demonstrable outcome of a conservative judicial philosophy." They could not.

"Well, I --I -- I will answer it this way," Hill said, citing an instance in which Miers opposed mandatory pro bono work for lawyers in favor of voluntary pro bono work. Cameron pushed again, fruitlessly, for specifics. Moments later, a White House spokeswoman declared the session over, and when a couple of the judges lingered, a handler cut them off with a call of "Gotta go to lunch, Judge."

So we still have a very good attorney, one who has had a single client for much of the last ten years -- George Bush -- and not much more evidence on which to rely. Even when the White House arranges promotional events, it still cannot get a clear message that goes beyond those qualifications. Conservatives will continue to wonder what makes her better qualified as an originalist, or even a demonstrable conservative, than many others with either judicial or philosophical public works of conservatism, many of whom are at least equally adept attorneys -- and all of whom could probably have handled interviews better than Miers did yesterday, with a sympathetic Senator. Liberals, thanks to a number of anonymously sourced assertions intended to bolster conservative confidence in Miers, have plenty about which to complain, and now they can add inexperience, as Schumer easily did yesterday.

Is this supposed to be an improvement over the past two weeks?

Two possibilities present themselves at this point, more than three weeks after the announcement of Harriet Miers as the nominee to the Supreme Court. Either this White House simply isn't competent to properly promote a marginal candidate to the highest bench, or the candidate herself makes it impossible to promote the nomination in any convincing way. In either case, the Miers nomination promises to become an albatross on the presidency, a nine-day blunder that could easily blossom either into a legacy, such as Clarence Thomas, or a nightmare, such as David Souter. The only constant is that every time the White House starts touting Miers, it only makes matters worse.

The administration needs to stop talking about her altogether, or withdraw her nomination. And if she can't handle Arlen Specter better in a one-on-one session than she did yesterday, God help her and the Bush administration in her Judiciary Committee hearings.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at October 18, 2005 5:37 AM

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