Harriet, We Hardly Knew Ya

[[C O U R T S]] * Senator Charles Schumer (D-New York), one of the more thoughtful and outspoken members among the 18 who currently sit on the GOP-controlled U.S. Senate Judiciary Committee, appeared quite confident this morning when he pronounced, on NBC-TV’s Meet the Press, that Harriet Miers, George W. Bush’s nominee to fill the Supreme Court seat being vacated by Sandra Day O’Connor, currently lacks the votes needed for confirmation. “I think if you were to hold the vote today, she would not get a majority either in the Judiciary Committee or on the floor,” said Schumer. “I think there is maybe one or two on the Judiciary Committee who have said they’d support her as of right now ...” Committee chair Senator Arlen Specter (R-Pennsylvania) isn’t so ready to stick a fork in Miers’ bid for the Court; however, he concedes that senators are still waiting for additional information about Miers’ credentials, independence, and overall judicial philosophy. It was Specter who, along with ranking committee Democrat Patrick Leahy of Vermont, asked Miers last week to redo a questionnaire she had submitted, because, as Leahy put it, her responses “ranged from incomplete to insulting.”

With Miers’ confirmation hearings due to begin two weeks from now, on Monday, November 7, the White House--already embroiled in damage control, as it readies for possible indictments spawned by the CIA leak scandal, and deals with the fallout from the indictment of former House Majority Leader Tom DeLay (R-Texas)--is scrambling to improve her chances of confirmation. But with even Republicans complaining of her inadequacy for the job, last week’s planned repackaging of the nominee--with more emphasis this time on the White House counsel’s accomplishments as a “pioneering female lawyer” and less on her religious fundamentalism, her fawning approval and longtime association with the prez (a losing theme, given the administration’s recent history of cronyism), and her genial personality--accomplished little, save to make clear how creaky the Bush “spin machine” is these days. As Washington Post columnist David S. Broder writes, Miers’ introduction to the public has been “as badly bungled as anything since Bush’s father shocked his staff by choosing Dan Quayle as his running mate.”

In the wake of Bush’s smooth success at installing the significantly more experienced John G. Roberts Jr. as Chief Justice of the United States, even conservatives are suggesting that the prez withdraw Harriet Miers from consideration for the Court. The usually Bush-friendly Washington Times newspaper reported on Friday that “The White House has begun making contingency plans for the withdrawal of Harriet Miers as President Bush’s choice to fill a seat on the Supreme Court ... ‘White House senior staff are starting to ask outside people, saying, “We’re not discussing pulling out her nomination, but if we were to, do you have any advice as to how we should do it?”’ a conservative Republican with ties to the White House told The Washington Times yesterday.” And Taegan Goddard’s Political Wire blog carried an e-note, said to have been submitted by “a staffer to a Senator on the Judiciary Committee,” which made clear that GOP senators are intent on killing Miers’ nomination:

Many are wondering why the Republicans who criticize the nomination of Miers pushed for the hearings to start Nov. 7th. My understanding is that they are trying to get to a committee vote ASAP, so that they can stop the nomination in committee, while they still have the momentum in the media against her, without dragging the coverage out into the new year. Some GOP Judiciary committee members and senior staff have suggested that this nomination is hurting the Republican party, and that they need to get over this quickly. Thus, there is now talk of the President pulling the nomination. If they vote her out in committee, the Republicans in the Senate save face, and the Democrats lose their credibility to vote against the next nomination.

Democrats seem, on the whole, to be handling the Miers meltdown with surprising deftness. Except for a few kind but benign things having been said of Miers early on by Senate Minority Leader Harry Reid (who may, in fact, have helped set up the unpopular prez for this latest disastrous fall), the Dems have stood on the sidelines while the circular firing squad of Republicans take aim at this latest Court nominee. Although some left-wing critics have derided Democrats for not making their opposition to the anti-abortion Miers better known, it seems to me that they’ve lost nothing with their silence. None of the Democratic senators on the Judiciary Committee has come out and said he or she would actually vote for Miers. They might have let her think that they’d give her a pass, but I’m not aware of any commitments. And in the absence of those, Leahy and his fellow Democrats have retained their right to turn thumbs down on her in the end. The gamble, of course, is that given a “do-over nomination,” Bush will buckle once more to the demands of the GOP’s ultraconservative majority, and pick somebody better known and more ideologically “pure” than Miers. Still, as the Political Wire’s Goddard points out, it might be better to have a clearly right-wing appointment to campaign against in next year’s midterm elections, rather than be raked over the coals for confirming an “unqualified Bush crony.”

For the time being, Capitol Hill lawmakers from both sides of the aisle suspect that Bush will stick with Harriet Miers (“I haven’t seen anything coming from the White House that says they’re going to pull the nomination,” says Kansas Republican Senator Sam Brownback). Withdrawing her name “would be a major problem for Bush, on top of his existing problems ...,” opines Steve Soto of the Left Coaster blog. “Aside from the fact that Bush never admits a mistake especially when it involves a crony appointment or selection, it would also be proof that Bush, [first lady] Laura [Bush], and [White House chief of staff Andrew] Card flamed out on a pick that was all their own. And it would be a ‘f*ck you’ from the [Karl] Rove supporters in the West Wing.”

On the other hand, Bush wouldn’t be the first Oval Office occupant to withdraw a nomination to the U.S. Supreme Court. At least two of President John Tyler’s nine Supreme Court nominations (to fill only a pair of open seats) were withdrawn, as was one of Ulysses S. Grant’s, that being the nomination of Caleb Cushing. In 1968, Lyndon B. Johnson nominated Abe Fortas, at the time a Supreme Court associate justice, to replace retiring Chief Justice Earl Warren; however, a controversy over money Fortas had received for speaking at a Washington, D.C., law school provoked a Senate filibuster, which eventually convinced the nominee to withdraw his name from further consideration. And back in 1987, Ronald Reagan nominated Douglas H. Ginsburg (following the Senate rejection of Robert Bork), only to have Ginsburg remove himself from the running, after it became known that he’d used marijuana a few times during the 1960s and ’70s. There’s always the possibility, too, that the Senate could defeat Miers simply by failing to schedule a final vote on her nomination. That contingency would save the White House embarrassment, and give Bush the chance to complain (if erroneously) that he’s been thwarted once again by the Democratic minority, while also ensuring that a demonstrably unfit nominee is benched and that right-wing Republican extremists get another shot at positioning one of their own on the highest court in the land.

FOLLOW-UP: There were still more indications on Monday that Miers’ nomination might be headed for the Dumpster. Bush announced that he won’t satisfy Senate requests for records of his conversations with the nominee, insisting that doing so would pose a threat to the confidentiality of advice presidents receive from their attorneys. “It’s a red line I’m not willing to cross,” the prez is quoted by the Associated Press. Of course, that sounds decisive and powerful, but it could also be an excuse for Bush finally withdrawing Miers’ name from consideration. He won’t comply with the Senate’s requests, therefore his only recourses are either to brazen out a bitter and confrontational hearing, or to settle on an alternative candidate for the Court seat. Meanwhile, the blog Confirm Them, a project of the conservative site RedState.org, reports that

certain third parties have begun going back through the list of potential judicial nominees at the behest of the White House. Sources tell RedState that while the White House intends to make a public display of moving the Miers nomination forward, the reality of the situation has been conveyed to the President--namely that it is increasingly likely that Harriet Miers will meet a bipartisan effort to block her nomination.

As a result of growing chatter about the nomination, the White House is, as the Washington Times reported, trying to develop an exit strategy. At the same time, the White House does not want to withdraw the nomination without having a replacement close by. Notwithstanding that, the White House is relying on trusted third parties to initially help reformulate a list of candidates that would unite and rally the base.

The only problem with this information is there’s nothing remotely “bipartisan” about the effort being made to block Miers’ appointment. It’s conservatives and Republicans who are behind this nominee’s torpedoing, not the wait-and-see Democrats. Even more proof of that comes with the launching of WithdrawMiers.org, a coalition of right-wing groups such as the Center for a Just Society, Eagle Forum, and ConservativeHQ that are urging the withdrawal of Miers’ Court nomination.

READ MORE: “A Miers Pullout?” by Steve Benen (The Carpetbagger Report); “Defending the Indefensible,” by George H. Will (The Washington Post); “The Gathering Storm,” by Richard Wolffe and Daniel Klaidman (Newsweek); “Miers Family Received ‘Excessive’ Sum in Land Case,” by Jack Douglas Jr. and Stephen Henderson (Knight Ridder Newspapers); “No Privilege for Miers,” by Stephen Gillers (The Nation); “George Bush Gives Up,” by John Nichols (The Nation); “Supreme Court: Withdraw Miers” (Seattle Post-Intelligencer); “Miers Must Go,” by Joe Conason (Salon); “How to Make Money on Politics” (Dan Conley’s Political Journal).

Bush II Meets Louis XIV

[[M E D I A]] * It’s become a meme of the commentariat, whether right- or left-wing: George W. Bush tapped Harriet Miers for the U.S. Supreme Court because (1) his job approval ratings are sinking fast, (2) the Iraq war is going badly, (3) the administration is still reeling from its too little, too late response to Hurricane Katrina, and (4) the prez didn’t want the confrontation with emboldened Senate Democrats that could have resulted from his nominating a more ideologically “pure” conservative for the Court. In other words, he acted from recognition that he was at a disadvantage.

“Surely this is a pick from weakness,” opined William Kristol, editor of The Weekly Standard, who proclaimed himself “disappointed, depressed, and demoralized” by Bush’s choice of Miers. Echoed columnist E.J. Dionne in The Washington Post: “The Miers pick risks looking like a sign of weakness.” Analyzing the Miers selection on this last Sunday’s edition of Meet the Press, TV commentator and former GOP presidential candidate Pat Buchanan complained that “We had an outstanding bench of conservatives, of traditionalists who had the right judicial philosophy and President Bush ducked the fight.” Even arch right-wing blowhard and Bush apologist Rush Limbaugh declared that Dubya had made his choice “out of weakness.”

Los Angeles Times political correspondent Ronald Brownstein suggests, though, that such assumptions about Bush’s motives are “not entirely persuasive.” He proposes, as an alternative, that the prez’s decision to nominate White House counsel Miers to the Supreme Court was born of the same arrogance that’s already spawned a war, caused international suspicion of U.S. candor and motives, and brought about a weakening of the country’s economic strength. “Bush picked Miers because he felt strong, not weak,” Brownstein theorizes.

Remember that Bush, throughout his presidency, has repeatedly demonstrated that he believes leadership is more about following his personal convictions, regardless of outside opinion, than building consensus. When he has the power to implement his ideas, he usually does, no matter how much critics complain.

After his victories in earlier judicial skirmishes, Bush may have calculated that nearly all Senate Republicans (and even many red state Senate Democrats) would feel compelled to support any but the most ideologically aggressive choices available to him (such as [Janice Rogers] Brown). That probably convinced him he could make a selection he knew would please him more than it pleased almost anyone else (including some of his own advisors).

To select Miers, Bush bypassed a long list of prominent federal judges who are known quantities to the conservative movement, but just names on a page to him. Instead, he picked someone who is a known quantity to him, but barely a name on the page to them. He placed so much weight on the factors important to him (personal chemistry and trust) that he ignored the factors important to them (principally a tangible record on constitutional issues).

When the right recoiled at Miers’ selection, Bush’s aides and defenders argued that conservatives should put their trust not in her, but in him. In effect, they maintained that if Miers was good enough for Bush, she should be good enough for all conservatives.

That smacks less of weakness than of self-confidence so unrestrained it verges on hubris. Louis XIV supposedly declared, “I am the state.” Bush with this pick seemed to declare, “I am the conservative movement.”

The problem with this approach, of course, is that over the last few months, we’ve seen just how skeptical American conservatives are that Dubya really is one of them. Conservatives, as well as other Republicans, have split with their nominal leader over the exorbitant cost of Gulf Coast rebuilding in Katrina’s wake, Bush’s disregard for fiscal discipline, and his indifference to the runaway growth of the federal government. They’re even now suspicious of his commitment to overturn Roe v. Wade, given Miers’ squishy history of opposing abortion and the prez’s interpretable contention that he never asked his nominee for her views on abortion. Addressing that subject on Meet the Press, Buchanan said, “I am not sure the president the United States wants to see Roe v. Wade overturned. His wife does not, his mother does not. He refuses to say whether he wants ... to see Roe v. Wade overturned. There are a number of Republicans, moderate Republicans, who say, ‘Well this would be a political disaster.’ I’m not sure the president of the United States wants the Supreme Court to overturn Roe v. Wade.”

All of which might make it harder for conservatives to take Bush’s word when he remarks, as he did in relation to the Miers nomination, “Trust me.”

ADDENDUM: According to a survey by The Washington Times, “Nearly half of Senate Republicans say they remain unconvinced that Harriet Miers is worthy of being confirmed to the Supreme Court ...” Already, the right-leaning paper reports, “27 Republican senators--almost half of [Bush’s] party’s members in the chamber--have publicly expressed specific doubts about Miss Miers or said they must withhold any support whatsoever for her nomination until after the hearings.”

READ MORE: “Honest Conservatives Awaken,” by Michael Tomasky (The American Prospect); “Harriet’s Man: The Texas Judge Who Is Vouching for Miers on Roe,” by Emily Bazelon (Slate); “Senators Question Rove’s Role in Miers Pick” (The Seattle Times); “Miers Remorse: Conservatives Are Right to Be Skeptical,” by John Fund (The Wall Street Journal); “Culture of Litmus: Don’t You Dare Judge Harriet Miers on Abortion,” by William Saletan (Slate); “Bush: The Ultimate Crony” (The Anonymous Liberal); “Harriet Gave to Hillary in 2000” (WorldNet Daily); “Will Bush Deliver?” by Paul Krugman (The New York Times).

Would You Like Some Salt On That Foot?

[[C O U R T S]] * It used to be said that Democrats, like the cannibals of yore, ate their own: So prone were they to internecine rivalries, that they let their actual political opponents ride to victory repeatedly. But the Republicans, riled by George W. Bush’s nomination of crony Harriet Miers to the U.S. Supreme Court, certainly seem to be showing the Dems a thing or two about compatriot consumption. Although GOP presidential aspirants are still playing their cards close to the chest, trying not to get too far out in front of the pack on endorsing or contesting Miers’ appointment to the Court, conservative columnists demonstrate no such hesitancy.

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.

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.

Meanwhile, neocon Charles Krauthammer, writing in The Washington Post, joins the chorus of conservatives calling on Bush to withdraw Miers’ nonimation:

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. ...

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.

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.

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.

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.

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.

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.”