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October 24, 2005
Andy Card, "Serial Souterizer"

John Fund notes a couple of surprising revelations ahout the Harriet Miers' nomination to the Supreme Court in his recap of the lessons that should be learned from the damaging nomination. Most interesting is Fund's connection between the Miers bid and that of David Souter, with the conjunction being Andy Card:

The botched handling of the Kerik nomination was a precursor of much that has gone wrong with the Miers nomination. This time, the normal vetting process broke down, with Mr. Card ordering William Kelley, Ms. Miers's own deputy, to conduct the background checks--a clear conflict of interest. ...

Another reason for conservative suspicion is that it was Mr. Card, a former moderate Massachusetts state legislator, who pushed the Miers choice. "This is something that Andy and the president cooked up," a White House adviser told Time magazine. "Andy knew it would appeal to the president because he loves appointing his own people and being supersecret and stealthy about it." Conservatives still recall that in the White House of the first President Bush, Mr. Card was deputy chief of staff to Mr. Sununu, the prime backer of Judge Souter. Mr. Card told me on Friday that "it would be a complete exaggeration to say I played a role in the Souter selection. I merely supported his nomination as I did all presidential appointments."

Ed Rollins, the GOP consultant who at the time headed the House Republican Campaign Committee and who was Mr. Card's boss in the Reagan White House, remembers it differently. "Of course Andy played a role," he told me. "He was Sununu's top aide." Two other aides who served with Mr. Card in the White House told me he was an enthusiastic backer of the Souter selection. "Now that he's brought us Miers we worry that 15 years later Andy is playing the role of a Serial Souterizer," one said.

No doubt John Fund has opposed the Miers nomination from nearly its first announcement, but this really does point towards history repeating itself. Card must be filling in for Karl Rove now that Rove has gotten preoccupied with his own legal troubles over the Plame case. If so, then this shows that the President needs better and more consistent advice from his inner circle. He may have felt that his personal knowledge of Miers was enough to prevent another Souter situation, but so far, events have shown that hasn't been the case.

Take, for example, the question of affirmative action. Miers not only came out in favor of it, she actively supported set-asides at the Texas State Bar, a state agency. She didn't just apply that to the agency itself, or just her law firm; as President of this state agency, she urged law firms in the state to follow its example, and later said that this policy was more than just an aspirational goal but a policy to be met.

This revelation has created a weird counterargument from the people who still support Miers' confirmation. On one hand, they have argued that Miers' evangelicalism and prior support for a Constitutional amendment to ban abortion should reassure us of Miers' conservative political bent. On the other hand, her active and apparently enthusiatic action of supporting set-asides while running the Texas State Bar is supposed to give us no clue as to how she will vote on affirmative action when she gets seated on the bench. We have heard people arguing that ConLaw is so easy that any competent attorney can fully grasp the entire discipline in a brief flash of study, and yet the questions surrounding Miers' support of affirmative action are so complex that unless we've spent years studying the precedents of Brentwood and other case work, we're not competent to question her reasoning.

When even the most erudite and trustworthy supporters of the confirmation start displaying self-contradiction, it's a sure sign that no good argument exists for her confirmation except presidential prerogative -- which should have been good enough for a true ConLaw conservative with a track record of courage and outspokenness about their outlook to get nominated. In this nominee and the confused and incoherent White House promotional effort on her behalf, the Bush administration has given everyone a reason to reject her.

If George Bush pushes her through the hearings, I hope she does well and we're all proven incorrect. However, based on her limited track record of public action, I don't think she's anywhere near the conservative that Bush and his supporters believe her to be. And since that's all we have to go on besides the "trust me" that we've heard all along, I'm hoping that Bush and/or Miers decide to withdraw her nomination before those hearings begin and replace her with someone whose public record does not include using a state agency to endorse set-asides.

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Posted by Ed Morrissey at October 24, 2005 6:18 AM

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