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October 21, 2005
Bad News Turns Into Flood On Miers

This morning's news has administration aides choking on their morning coffee regarding the Harriet Miers nomination. While the Wall Street Journal comes out in opposition to her confirmation and urges withdrawal, the New York Sun reports that a senior Republican Senator has already passed that same message to the White House, which angrily dismissed the feedback. Meanwhile, John Fund reports that Miers' work at the Texas Lottery Commission will bring up several uncomfortable details about a sweetheart golden parachute for Ben Barnes after his firm lost a TLC contract under questionable circumstances -- and new reports have come out showing that George Bush paid a hell of a lot of money for Miers' services at about that same time.

First, Brian McGuire at the Sun reports that the Senate GOP caucus may already be balking at proceeding with the Miers nomination:

The Supreme Court nomination of White House counsel Harriet Miers faced new and urgent troubles yesterday, with speculation mounting throughout the day that at least one conservative Republican senator had made an unsuccessful attempt at getting the White House to withdraw Ms. Miers's name altogether. ...

The complaints have become serious enough that at least one conservative senator is said to have asked White House officials yesterday to withdraw the nominee's name because of a growing lack of enthusiasm for Ms. Miers among Republicans in the Senate.

"I don't know exactly what was asked, but displeasure was expressed," a source familiar with the White House strategy on judicial nominees said. "The White House responded that it would do no such thing."

Remember Ben Barnes? He provided some supposedly eyewitness testimony about George Bush's use of the Texas Air National Guard to avoid the draft, an urban legend he promoted and CBS exploited until it blew up in their faces. Barnes, it turns out, lobbied for a firm called GTECH which had a contract for the Lottery Commission.

After Miers took over the commission, she fired its executive director, Lawrence Littwin, who then sued for wrongful termination. His lawsuit turned up some fascinating information, including Barnes' salary for GTECH -- $3M a year -- and his severance package, which came in at $23M. Littwin argued at the time that the only reason he got fired was to keep Barnes and GTECH employed at the TLC. Littwin argued that the TLC wanted to keep Barnes close to keep him from going public with his allegations about the TexANG and Bush:

The Littwin controversy has spawned feverish conspiracy theories, many stemming from a 1997 anonymous note sent to then-U.S. Attorney Dan Mills. The note, excerpts from which were published in the weekly Dallas Observer this week, claimed that "Bashur was sent to talk to Barnes who agreed never to confirm the story" about the Texas Air National Guard and that "the Governor talked to the Chair of the Lottery [Ms. Miers] two days later and she then agreed to support letting Gtech keep the contract without a bid." Mr. Bashur said the note stirred up a lot of controversy back then but was "nonsense" and has never been substantiated. But that note may be making a comeback now that Democrats are exploring Ms. Miers's career before she went to the Bush White House.

Mr. Barnes, however, is urging Democratic senators not to take their questioning there. In 1997, the Providence Journal-Bulletin reported that after the conviction of GTECH national sales director David Smith, "in a sentencing memo that was posted briefly on the Internet, a federal prosecutor accused Smith of engineering kickback schemes in four states, including Texas, where he allegedly received $508,945 in illegal payments from former Lt. Gov. Ben Barnes." The prosecutor's office later apologized for making the memo public but never retracted it.

And if that wasn't bad enough, the AP reports this morning that a check of financial records shows that the Bush gubernatorial campaign paid Miers' firm an eye-popping amount of money during this same period, almost as much as he paid for all the attorneys working on the 2004 Presidential election, when the campaign staffed up for potential electoral challenges in several states:

Reports filed with the Texas Ethics Commission show that two payments of $70,000 were made to Miers' Locke, Purnell, Rain and Harrell firm in Dallas within a month of each other during the 1998 campaign. Another $16,000 in payments were made between March and December 1999.

The 1998 totals dwarfed the $7,000 Bush paid Miers' firm during his first run for governor in 1994, and are extremely large for campaign legal work in Texas, an expert said.

"I'm baffled," said Randall B. Wood, a partner in the Austin firm of Ray, Wood and Bonilla, and former director of Common Cause of Texas. "I've never seen that kind of money spent on a campaign lawyer. It's unprecedented."

Wood won't be the only one baffled, not least by a White House that once again has failed to think through all of the implications of nominating someone who has all these connections to issues best left quiet. Didn't anyone think to check through all of these points before selecting Miers? I understand that the President makes his own choices and can get rather stubborn about them, but this water torture of daily missteps and revelations make it difficult for all but the most rabid partisans to continue supporting Miers' confirmation, even for the party's sake.

Several people have criticized the conservatives who have questioned the wisdom of this nomination, pointing out that we have argued that Presidential prerogatives apply to executive appointments. We have argued that all nominees who get through committee deserve a fair up or down vote in the Senate. I firmly believe that. However, I also believe that the President has a responsibility to select nominees that meet minimal qualifications for the highest court in America in order to get that benefit of the doubt, and based on Miers' performance in the last couple of days, I highly doubt that Bush met that test in this one instance. If Clinton had named Bruce Lindsay to the Supreme Court with this kind of track record, the Right would have lined up for miles to shred both of them -- and we would have been correct to do so.

We've already had one request for a do-over from the White House PR team, and another from the Senate afterwards on Miers' questionnaire, the first time that has ever happened, apparently. How many Mulligans should it take to get past that benefit of the doubt?

UPDATE: Read Paul Mirengoff's post at Power Line in which he addresses my points about consistency -- he makes a very powerful argument (plus he calls me "smart" while disagreeing with me, twice.)

In response, let me say that I have supported Miers' confirmation up to now, almost exclusively on two bases: presidential prerogative and an assumption of basic competence, both on her part and the White House. The questionnaire has my confidence in the second basis badly shaken. The slapdash manner of its preparation tells me someone isn't taking this seriously, and since Miers has her name on it, that's her responsibility. The way she managed to antagonize Specter adds to that impression. She's striking me as an imprecise and sloppy nominee for a position that requires absolute clarity and precision.

Given that, my reliance on presidential prerogative remains ... but it doesn't outweigh my objection to getting a substandard jurist on the Supreme Court. Waiting until the hearings for her to get exposed as that will prove a political disaster for the President and the GOP. For those reasons, I'd strongly suggest that the White House look for a way out of this, and fast.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at October 21, 2005 6:53 AM

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