QUESTIONS FOR MIERS
Prior to this year, in the course of your legal career have you ever been involved in any Supreme Court litigation? Have you ever been consulted about such litigation? Has it ever occurred to anyone to consult you about it?
And then there's Patterico:
2) To the “trust Bush” crowd: Bush signed an unconstitutional campaign finance reform law. Bush instructed Ted Olson to support affirmative action in an argument to the Supreme Court. Et cetera. So even if we “trust Bush,” we’re trusting him to carry out his own policy preferences, not to pick a judge who will read the Constitution as written.
3) Even if Miers would vote the “right” way, I just don’t have enough confidence in her candlepower, because I haven’t been given any reason to have confidence. The work at the Supreme Court is not easy. It is not a matter of simply picking the result you like and fashioning an opinion around that, and Justices who treat it that way are (in my opinion) the worst disasters of all — even when they sometimes vote “our” way. They make a mess of the law, and we all have to clean up that mess. . . .
5) A telling comment from Beldar (emphasis his):
Whether he’s right or wrong, Dubya clearly is more willing to rely on his own first-hand experience with Harriet Miers than on what others might tell him, or what he might deduce from the writings of, other potential nominees like Luttig or McConnell or Jones. It’s not his style to sit down and read the several dozen collected law review articles of McConnell or the collected judicial opinions of Luttig or Jones, and whoever else whose opinions he values are vouching for those folks, their vouching apparently hasn’t been enough (as it must have been with Roberts) to overcome his preference to go with someone he’s worked with elbow-to-elbow and face-to-face. To Dubya, McConnell and Luttig and Jones and candidates like them are the “unknown quantities.” They’re all more likely to be “potential Souters” from his point of view.
Right — because he’s too stupid and lazy to put in the work to figure out that they would be tremendous Justices. It’s “not his style” to make this decision intelligently.
Then there's this old Legal Times article, which is full of interesting nuggets. Such as:
One former White House official familiar with both the counsel's office and Miers is more blunt.
"She failed in Card's office for two reasons," the official says. "First, because she can't make a decision, and second, because she can't delegate, she can't let anything go. And having failed for those two reasons, they move her to be the counsel for the president, which requires exactly those two talents."
Those who have risen to defend the Miers choice have mostly centered their arguments around the notion that Miers will "vote right"--meaning, I suppose, that she'll understand she's in over her head and will simply follow Justice Roberts.
Perhaps I'm wrong, but I always thought that conservative opposition to what has happened to our courts was based on an objection to liberalism's fetish for outcome-based legal theory. That's why conservatives have spent two generations producing heavyweight intellectual lawyers who could challenge the very underpinnings of legal progressivism. The goal--or so I thought--wasn't simply to get enough votes on the Court to get "our" way on Issue X. It was to put great minds on the Court to challenge the prevailing legal culture.
To accept Miers simply because she votes "our" way is to accept the politicization of courts and to accept the progressive idea that outcomes should determine the course of law.
Bonus Bork Note: I'm not especially troubled by Miers's list of political contributions--I get that she was a Democrat back before conservative Dems fled the party in the South. (Also, there's nothing wrong with supporting or having supported Democrats--that shouldn't be a disqualifier if a person is the best guy or gal for the job.)
But I would point out the irony of the fact that Robert Bork--a serious conservative legal mind--was rejected by Senate Democrats in October of 1987 with Senator Al Gore, among others, voting against.
Four months later, Miers gave Gore $1,000. Nine months after that she gave the DNC $1,000. So a woman who from an intellectual standpoint couldn't carry Bork's briefcase and who financially supported the Democrats who destroyed Bork just a few months after that sorry display, is now being sent to the Supreme Court--by a Republican president.
The world is a strange place.