Robert Bork, the former U.S. solicitor general whose own nomination to the Supreme Court (by Ronald Reagan) was shot down in 1987, said Friday on MSNBC’s The Situation with Tucker Carlson that the Miers’ pick is “a disaster on every level.” Bork went on to explain the levels of said disaster:
Well, the first one is, that this is a woman who’s undoubtedly as wonderful a person as they say she is, but so far as anyone can tell she has no experience with constitutional law whatever. Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already. So that--I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by. I don’t expect that she can be, as the president says, a great justice.Meanwhile, neocon Charles Krauthammer, writing in The Washington Post, joins the chorus of conservatives calling on Bush to withdraw Miers’ nonimation:
But the other level is more worrisome, in a way: it’s kind of a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years. There’s all kinds of people, now, on the federal bench and some in the law schools who have worked out consistent philosophies of sticking with the priginal principles of the Constitution. And all of those people have been overlooked. And I think one of the messages here is, don’t write, don’t say anything controversial before you’re nominated.
If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her. ...I certainly disagree with Krauthammer on the suggestion that Bush’s time in the White House has been “marked by a courageous willingness to think and do big things.” Instead, Bush has shown a stubborn, narrow-minded reluctance to adapt his thinking on matters of great import (such as the Iraq war and tax cuts) in accord with changing realities on the ground, and he’s inflicted enormous damage on a variety of causes--civil liberties, environmental protection, international comity and cooperation, and progressive taxation, among them--that demanded the attentions of a more experienced and compassionate, and less ideologically motivated, chief executive. Finally, in areas where Dubya has displayed any courageousness, such as recommending investment changes to Social Security, his proposals have invariably been designed to weaken programs and laws that well serve a vast majority of Americans. Nonetheless, Krauthammer’s point about Miers’ potential conflicts of interest as a White House counsel being elevated to a court where she would have to rule on the constitutionality of policies she herself helped create, and subsequently defended, is important.
There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous. ...
Miers will surely shine in her Judiciary Committee hearings, but that is because expectations have been set so low. If she can give a fairly good facsimile of John Roberts’s testimony, she’ll be considered a surprisingly good witness. But what does she bring to the bench?
This, say her advocates: We are now at war, and therefore the great issue of our time is the powers of the president, under Article II, to wage war. For four years Miers has been immersed in war-and-peace decisions and therefore will have a deep familiarity with the tough constitutional issues regarding detention, prisoner treatment and war powers.
Perhaps. We have no idea what her role in these decisions was. But to the extent that there was any role, it becomes a liability. For years--crucial years in the war on terrorism--she will have to recuse herself from judging the constitutionality of these decisions because she will have been a party to having made them in the first place. The Supreme Court will be left with an absent chair on precisely the laws-of-war issues to which she is supposed to bring so much.
By choosing a nominee suggested by Senate Democratic leader Harry Reid and well known only to himself, the president has ducked a fight on the most important domestic question dividing liberals from conservatives: the principles by which one should read and interpret the Constitution. For a presidency marked by a courageous willingness to think and do big things, this nomination is a sorry retreat into smallness.
For his part, William Kristol, editor of The Weekly Standard, suggests that it would be an extension of the loyalty Miers has long demonstrated toward Bush if she were to voluntarily remove her name from consideration, “thereby sparing her boss the chance of lasting damage to his legacy”:
The best alternative would be for Miers to withdraw. Is such an idea out of the question? It should not be. She has not aspired all of her life or even until very recently to serve on the Supreme Court. And her nomination has hurt the president whom she came to Washington to serve. Would a withdrawal be an embarrassment to the president? Sure. But the embarrassment would fade. Linda Chavez at the beginning of the first term, and Bernard Kerik at the beginning of the second, withdrew their nominations for cabinet positions and there was no lasting effect. In this case, Miers could continue to serve the president as White House counsel. The president’s aides would explain that he miscalculated out of loyalty and admiration for her personal qualities. And he could quickly nominate a serious, conservative, and well-qualified candidate for the court vacancy.It may ultimately be that Harriet Miers, defended by Bush, winds up filling Sandra Day O’Connor’s seat and pushing the Supreme Court even farther to the right of its current position on the political spectrum. But during the Senate hearings on her confirmation, Democrats will have yet another chance--in the crucial run-up to the midterm elections of 2006--to point out just how willing Bush and his Republicans are to ignore qualifications in favor of cronyism.
Failing that, we are headed towards hearings that will in no way resemble the recent triumph of John Roberts. These hearings will not be easy for Miers, as she will have to at once demonstrate a real knowledge of constitutional jurisprudence, reassure conservative constitutionalists, and presumably placate Democrats as well. Conservative senators will for the most part withhold judgment until the hearings are completed. Many have already said as much, leaving open the possibility of a no vote in the event things do not go well. It would be awkward, of course, if a combination of conservative and Democratic votes defeated Miers. But this is a moment where it is more important that conservatives stand for core principles than that they stand with the president.
READ MORE: “The Miers Misstep: What was President Bush Thinking?” by Peggy Noonan (The Wall Street Journal); “Right Sees Miers as Threat to a Dream,” by Dan Balz (The Washington Post); “How Harriet Unleashed a Storm on the Right,” by Edward Morrissey (The Washington Post); “The Trouble With Harry,” by Maureen Dowd (The New York Times); “Miers’ Mission: Prove She Belongs,” by Ron Harris (St. Louis Post-Dispatch); “Miers: Not the First Evangelical Justice,” by Amy Sullivan (Salon); “Ordinary People,” by Roger Simon (U.S. News & World Report); “The Right on Fire Over Miers,” by Colbert I. King (The Washington Post); “Justice Grows to the Left,” by Deepak Chopra (The Huffington Post); “Progressives’ Guide to the Harriet Miers Nomination” (Moving Ideas).
AND DON’T MISS: Chris Bowers, over at the MyDD blog, recaps the “amazing week” progressives had this last week, filled not only with Republican scandals and the controversy over Miers, but Bush’s continuing weakness in the polls. ... Fred Barnes of The Weekly Standard assesses the damage Tom DeLay’s stepping down as U.S. House majority leader will have on Bush’s already struggling agenda. ... The New Republic follows up the recent Michael Brown fiasco with an examination of 15 other embarrassing members of the Bush’s administration’s “hackocracy,” including the Commerce Department’s chief of staff, the deputy secretary of labor, the secretary of Veterans Affairs, and the U.S ambassador to Canada. ... Screenwriter Sherman Yellen asks, in The Huffington Post, not whether a woman can become president, but whether a man--necessarily capable of flip-flopping when necessary, empathizing with public pain, and admitting that he’s wrong--can ever again ascend to the Oval Office. ... Finally, Salon profiles Richard Cizik. “a pro-Bush Bible-brandishing reverend zealously opposed to abortion, gay marriage and embryonic stem-cell research” who is “also on a mission to convert tens of millions of Americans to the cause of conservation, using a right-to-life framework.”