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October 28, 2005
Why Miers Tanked

We need to set the record straight on why the nomination of Harriet Miers to the Supreme Court failed. This failure didn't start with David Frum putting together an ad-hoc committee to pay for television advertising, and it didn't start with the blogosphere opining on Harriet Miers' birthday-card greetings. It started in the White House, where another poor job of vetting a candidate came back to bite the Bush administration -- not for the first time in this term.

The White House selection process that produced Miers can be boiled down to one sentence: Bush liked her, and no one bothered to check her out properly. The Washington Post has more:

For Harriet Miers, the "murder boards" were aptly named. Day after day in a room in the Justice Department, colleagues from the Bush administration grilled her on constitutional law, her legal background and her past speeches in practice sessions meant to mimic Senate hearings.

Her uncertain, underwhelming responses left her confirmation managers so disturbed they decided not to open up the sessions to the friendly outside lawyers they usually invite to participate in prepping key nominees.

It was clear that Miers was going to need to "hit a grand slam homer" before the Senate Judiciary Committee to win confirmation to the Supreme Court, as one adviser to the White House put it. "Her performance at the murder boards meant that people weren't confident she'd get the grand slam."

By nearly all accounts, the 24 days of the Miers nomination was hobbled by a succession of miscalculations. President Bush bypassed his own selection process to pick Miers, his onetime personal lawyer and White House counsel since February. His aides ignored warnings by some of the administration's closest conservative allies that she would prove difficult to confirm, and took for granted that its base would ultimately stick with the president.

And in perhaps the biggest misjudgment, Bush assumed that Miers would somehow shine in a Washington klieg light she had never before faced.

George Bush has many admirable qualities, but understanding what his base wants in terms of philosophy and temperament from a Supreme Court justice isn't one of them. It's true that his team has selected many fine nominees to the bench -- but all of them have had demonstrable track records as conservatives, originalists, jurists, and scholars of law. Harriet Miers, as described in another Post article this morning, is a fine attorney and genuinely nice person, but she doesn't have those kind of qualifications.

This failure started at the top, and as more came out about Miers and her shifting positions on potentially important Constitutional issues and legal scholarship, that failure became more obvious. Even early ally James Dobson realized that he had made a mistake in supporting Miers out of the gate, although the White House still hasn't figured out that promoting her religion as a qualification was a huge mistake, one that cost them the bipartisan edge she might otherwise have had.

My good friend Hugh Hewitt feels as though the Right has made a terrible mistake in speaking its mind about the actions of the Bush administration. He goes to the New York Times this morning to scold the Right for using the tactics of the Left in beating up what he sees as a qualified nominee:

OVER the last two elections, the Republican Party regained control of the United States Senate by electing new senators in Florida, Georgia, Minnesota, Missouri, North Carolina, South Carolina, South Dakota and Texas. These victories were attributable in large measure to the central demand made by Republican candidates, and heard and embraced by voters, that President Bush's nominees deserved an up-or-down decision on the floor of the Senate. Now, with the withdrawal of Harriet Miers under an instant, fierce and sometimes false assault from conservative pundits and activists, it will be difficult for Republican candidates to continue to make this winning argument: that Democrats have deeply damaged the integrity of the advice and consent process.

The right's embrace in the Miers nomination of tactics previously exclusive to the left - exaggeration, invective, anonymous sources, an unbroken stream of new charges, television advertisements paid for by secret sources - will make it immeasurably harder to denounce and deflect such assaults when the Democrats make them the next time around. Given the overemphasis on admittedly ambiguous speeches Miers made more than a decade ago, conservative activists will find it difficult to take on liberals in their parallel efforts to destroy some future Robert Bork.

What Hugh sees as a Borking, however, was the natural reaction from a conservative base that has seen Souter after Kennedy after Stevens, "trust me" candidates that later turned into lifetime-appointment nightmares -- and who still comprise a third of the Supreme Court. Even O'Connor has mostly disappointed those who believe, as Hugh does, in originalist thinking. Republicans have named seven of the nine sitting justices on the Court, and four of them have proven themselves to be superlegislators.

If Hugh wants to debate the meaning of the 1993 speech to the Executive Women of Dallas, a speech he repeatedly admitted on the air was "terrible" and not just "ambiguous" as he writes here, he knows he loses. That speech turns out to be the only documentary evidence of Miers' judicial philosophy that emerged from this candidate. The White House never bothered to produce anything, or more likely had nothing to produce, to counter it, other than George Bush's "trust me" based on a nonexistent vetting process.

Republicans made clear after David Souter turned south in a hurry what it expected the next time a Republican nominated a Supreme Court justice. We wanted someone who we could see -- through experience, writing, and erudition -- had the proper philosophy and temperament to not just cast a vote but to reverse decades of overreaching by the Court, turning themselves into an American version of the Iranian Guardian Council. Originalists, and most Republicans, don't want the Supreme Court making abortion illegal any more than they want the Supreme Court making abortions legal. They want the Supreme Court to stop making law altogether and focus on the strict meaning of the Constitution -- allowing the people's representatives, the Legislature, to make those decisions.

Instead, the Bush administration gave us the biggest cipher possible, one whose meager public record reflected quite a bit of sympathy for abortion rights at one point, and asked us to believe that she had the requisite philosophical viewpoint and would never change it from this point forward. The White House should have known better than to make that argument. In this case, the Times editorial board gets closer to the truth of the Miers debacle in its entry today:

The Supreme Court is the one branch of government whose members do not have to answer to the voters, ever, so they derive their authority from their credibility. Ms. Miers's career and her bumbling after being nominated suggested that she did not rise to that level. Mr. Bush did not have to listen to Edward Kennedy or Dianne Feinstein to get this message. It also came from the Senate Judiciary Committee's chairman, Arlen Specter, and from other, more conservative, Republicans who share Mr. Bush's views on the role of judges and abortion but would not rubber-stamp such a poor choice.

A poor choice, indeed. Now we have an opportunity to make a wise choice. And while Hugh continues talking about the one case in which this delay might allow O'Connor to cast a vote, I'd rather have her cast one more vote and get a McConnell or Luttig on the bench than have another mistake casting votes for a generation of cases such as Casey.

Pretending that Bush made an adequate choice in Miers only compounds the political damage Hugh and others decry. Some people need to admit that Bush can make mistakes -- and we don't need to send another mistake to the Supreme Court.

ADDENDUM: This point from the Washington Post editorial board shouldn't get lost, either:

Ms. Miers's solid and serious professional history did not deserve the derision it received. But it did not look much like the resume of a Supreme Court justice either, even to people who agree -- as we do -- that great justices need not come from the ranks of federal appellate judges. Her personal lawyering for Mr. Bush, her minimal public record and her failure to reassure senators in early interviews raised legitimate anxieties among liberals and conservatives. Particularly compared with John G. Roberts Jr.'s sterling qualifications to be chief justice, the combination of thin credentials and apparent cronyism was glaring. Even in a polarized country, people of both parties want a Supreme Court made up of jurists of distinction and independence. ...

While many conservatives were understandably troubled by Ms. Miers's professional credentials and lack of a known judicial philosophy, others were simply unsure she would be a reliable vote on their issues. It was to reassure such people that the White House took the degrading steps of advertising her church attendance and getting friends to vouch for her antiabortion views, steps that have undermined its ability to argue that such topics are off-limits for liberal interest groups or Democratic senators.

Had the White House nominated a distinguished originalist jurist, scholar, or even practicing attorney with an established track record of supporting such a philosophy, they would not have had to advertise Miers' faith as a dispositive reason to support her -- and most of us, at that time, pointed this out. Too bad they didn't listen then.

UPDATE: Want to cast a vote among a few of the most-mentioned candidates for the open seat? Go to Reasoned Audacity, where the lovely and gracious Charmaine Yoest hosts a blogpoll on the topic. At the moment, I see that Janice Rogers Brown has a commanding lead among the so-called sexists who opposed the Miers nomination. Charmaine even provides links to PFAW's "endorsements" of each candidate. Maureen Mahoney doesn't make the poll, but she has received at least one write-in vote.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at October 28, 2005 6:14 AM

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