Thursday, October 06, 2005

The Case for Miers (when things look blurry)



Fear factor
As with pretty much everyone on the center-right, my initial reaction to the Miers appointment was anger, disbelief, and opposition. I feared, and many feared, that Miers was another Souter--and without the credentials to match. But I decided to do some research on Miers before I vented in my blog. After looking at the evidence, I came to two conclusions: 1) she's qualified; 2) she's very conservative.

1. Why W picked Miers
The pick of Miers was very unexpected: Why Miers? But in retrospect it's not very mysterious. Every president wants for SCOTUS justices that they agree with nearly 100% of the time. After many years of working together, W knows that Miers agrees with him on nearly everything. So when Senator Reid suggested that W think about putting Miers on the court, W had every reason to do so.

Did Reid hoodwink W? Not likely. W has known Miers for years and well; Reid knows her only slightly. The Dems effectively told W that they would confirm a justice that W knows is in near-total agreement with him. It's not surprising that he took it. From W's perspective, he had no reason to start a fight with the Senate when Democrats indicated they would surrender nearly 100% of what he wanted without a fight.

From W's perspective: you don't need the nuclear option when the other guy waves the white flag.

But is W right about Miers?

2. Why Miers is not another Souter.
Souter, Kennedy, and O'Connor all had one thing in common--they were unknown personally to the president who appointed them. Reagan and Bush 41 trusted the judgment of conservative legal experts who thought they would be good conservatives--these experts turned out to be mistaken. W is not trusting conservative legal experts on this pick but his own personal work with Miers for a decade. W might be wrong--but Miers is here the anti-Souter, a candidate whose work the president knows quite thoroughly; something which contrasts with Souter, et al.

3. Why we shouldn't trust W.
Not that W's judgment is untrustworthy. Rather, he shouldn't be trusted for the simple reason that there's no need. Miers is not an unknown. She has a long paper-trail, much longer than people realize. The evidence is quite clear and quite conservative. For example...

4. Miers' paper trail: abortion
4.1: In 1989, she contributed $150 to Texans for Life. 95% of those who contribute to pro-life groups seek to reverse Roe v. Wade; there's no reason to think Miers is an exception.
4.2: When she ran for Dallas City Council, she openly identified herself as pro-life. Her campaign manager has since called her "on the extreme end of the anti-choice movement".
4.3: She became head of the Texas Bar in 1992-93, and used her position to lobby against the ABA's pro-abortion positions. She continued this lobbying late into the decade. There is no reason to doubt that this was powerfully rooted in her own pro-life political views.
4.4: She gave money to Bentsen and Gore in 1987/88 when she was still a conservative Democrat. Since 1990 she has made 13-14 political donations, and these donations have gone ONLY to 100% pro-life candidates.
4.5: In 2000 she gave money to Donald Stenberg, the Nebraska attorney general who defended Nebraska's partial birth abortion law before the Supreme Court. As one blogger put it: “I didn’t know she had given to Sternberg [sic]. The only people who I know from around here who did that were the real activists.” Exactly.
4.6: Summary: this is the most extensive pro-life record of any nominee to the Supreme Court in recent years. Even Scalia and Thomas, who both rejected Roe, never had a record like that. Roberts certainly never did. Her on-record pro-life convictions are clear and undeniable.

Is this a guarantee that Miers will vote to overturn Roe? No, there can be no guarantees on that. It is highly probable however. And it is close to a guarantee that she will vote to reverse Stenberg (a 5-4 decision with O'Connor in the majority).

5. Miers' paper trail: gun control.
Pattrick Ruffinini notes that Miers strongly defended the Second Amendment in the aftermath of some senseless shootings in Texas: Miers declared: "The same liberties that ensure a free society make the innocent vulnerable to those who pervert rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of religion, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs." *

Adds David Kopel, "As far as I know, you have to go back to Louis Brandeis to find a Supreme Court nominee whose pre-nomination writing extolled the right of armed self-defense."

6. The Miers' paper trail: homosexuality.
From NRO:
WASHINGTON — Supreme Court nominee Harriet Miers went on record favoring equal civil rights for gays when she ran for Dallas City Council, and she said the city had a responsibility to pay for AIDS education and patient services.

But Miers opposed repeal of the Texas sodomy statute _ a law later overturned by the court on which she will sit if confirmed _ in a survey she filled out for a gay-rights group during her successful 1989 campaign.


O'Connor, of course, struck down the Texas sodomy law as Supreme Court justice. Miers was one of the supporters of that law. It is not likely that Miers would have supported it if she agreed with O'Connor that it was contrary to the constitution.

7. Miers' professional qualifications: Miers' credentials certainly don't compare well with John Roberts. But that's true of pretty much everybody; Roberts was an exceptional nominee.

It's also true that Miers has no previous judicial experience. But that's true of 41 of the last 109 Supreme Court justices. What these candidates had was exceptional success as legal professionals. No one doubts that Miers has had an outstanding career in private practice: a trailblazing career in which she became the first woman hired at her firm, the first managing partner of a major firm in Texas, and the first head of the Texas bar. Her colleagues have described her as "hardworking" and "brilliant."

8. Miers' academic credentials: Some have been concerned that Miers did not graduate from a front-rank university or law school. But lots of extremely talented individuals don't come from the right schools. And this includes most of the women on the conservative short lists for the O'Connor slot. We might contrast Maura Corrigan of the Michigan Supreme Court--a hot candidate for many conservatives. Corrigan graduated from Marygrove, got her JD from UDetroit, and clerked for a state appellate judge. Miers graduated from SMU (in math!), did an SMU JD, and clerked for a federal judge. Miers' credentials are certainly not inferior to Corrigan's. Miers' success is precisely that she rose to the top of the Texas Bar because she had the skill, talent, and drive to outperform hundreds of men with better academic credentials than she had.

9. The question of legal philosophy. The stronghold of conservative lawyers is the Federalist Society--of which Miers is not a member, but many conservative lawyers aren't; Hugh Hewitt, for example. Miers has been a speaker before the Federalist Society, and has the strong support of Federalist Society executive director Leonard Leo:

He spoke as one who has known and worked with her for well over a decade, who has played host to her when she has been a Federalist Society speaker, and -- perhaps most significant -- who joined her in a battle to get the American Bar Association to rescind its resolution endorsing Roe v. Wade , the decision establishing a right to abortion.

The first thing Leo said was that Miers's statement accepting the nomination from Bush was significant to him. "It is the responsibility of every generation to be true to the Founders' vision of the proper role of courts in our society . . . and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution," she said. "When she talked about 'the Founders' vision' and used the word 'strictly,' " Leo said, "I thought, 'Robert Bork,' " Ronald Reagan's Supreme Court pick, who was rejected by the Senate after a bitter fight. "She didn't have to go there. She could simply have said, 'Judges should not legislate from the bench.' But she chose those words."

I asked if he was surprised that she did -- or whether it was consistent with what he knew of her judicial philosophy. He replied: "I'm not surprised that's what she believes. I'm surprised her handlers let her say it."


Conclusion: This is a very conservative nominee, and a very talented one. She was a woman in what in the 1970s was a man's profession in Texas, and immediately cut her way to the top--outperforming numerous overcredentialed Ivy Leaguers in the process. She used her position as head of the Texas Bar to fight for conservative causes, and holds a Robert Bork-like legal philosophy. She has regularly impressed nearly everyone who's worked with her. W was looking for a reliable conservative to place on the Court, and her record stongly supports both her conservativism and her talent.

*Patrick Ruffini's quotation has been corrected to reflect slight inaccuracies in transcription.

Postscript: the view from Texas. I highly recommend the posts from Beldar, himself a Texas lawyer; specifically on the question of her qualifications.

UPDATE: Welcome to Hugh Hewitt readers!

31 Comments:

At Thursday, 06 October, 2005, Blogger Impacted Wisdom Truth said...

Dear Aristotle:

Thank you for that lucid and illuminating profile of Harriet Miers. My own take on the Reid recommendation pro-Miers is this: Bush could not believe his luck. It is as if the Road Runner had recommended Wile E. Coyote for highway commissioner.

 
At Thursday, 06 October, 2005, Anonymous gobigred said...

I hope lots and lots of conservatives read this. I just don't know what to think of Bill Kristol, George Will and that crowd right now. Conservatives have GOT to pull it together NOW or Hillary and that crowd will laugh themselves silly in 06 and 08.

 
At Thursday, 06 October, 2005, Anonymous Kim said...

Thanks for posting this. The more I read about Harriet Miers, the more I like her. Hopefully more conservatives come to their senses and realize what a great nominee we've got.

 
At Thursday, 06 October, 2005, Anonymous Ben Hammer said...

Some very useful information posted here. I especially am encouraged by here second amendment views and her views on security cameras. I continue to be amazed at how far down the slope of guilty until proven innocent that this country has tumbled. I resent the fact that I can go almost nowhere with out the intrusive watchful eye of the government. Even in national forest areas it is hard to get away from the man. Call me paranoid if you must, but being under constant surveillance is not liberty.
However, if she is as pro-life as you claim why did Harry Reid suggest her? What does he know that we don’t? How did Harry come up with the name Harriet Miers? Did W give him a list of names that had her name on it or what? It all just does not add up for me.

 
At Thursday, 06 October, 2005, Blogger GrenfellHunt said...

Thanks for the kind words on and all.

As for why Reid suggested her to the president? Two reasons:

1) She's very good at what she does and impressed senators from both parties during her work on the Roberts hearings.
2) Reid didn't know her political views when he made the recommendation. As he's learned more, he's started to back off.

 
At Thursday, 06 October, 2005, Anonymous Stephen said...

When Senator Hatch told President Clinton that Judge Ginzburg would be acceptable, Clinton jumped at the chance.

When Senator Reid told President Bush that Harriet Miers would be acceptable, Bush jumped at the chance.

By all indications Miers will be as effective on the conservative side as Ginzburg is on the liberal left side. That is, not a towering intellect or brilliant legal philosopher, but a very reliable vote for Bush's positions.

Justice Roberts is the legal philosopher. I had hoped for two or three more such picks -- Luttig, McConnell, and perhaps Janice Rogers Brown (knowing that Edith Jones was out of the hunt). But while I am not thrilled with Miers, your posting convinces me that those who are complaining from the right are looking a gift horse in the mouth.

 
At Thursday, 06 October, 2005, Anonymous Chef James said...

Thanks for this insight. I think sometimes our most revered conservatives listen too much to the left pundits and do not give W credit for thinking this and other things through. I think he is wiser and sure of himself today more than ever. The left is scrtaching it's head right now. I think W is a better politician than many including myself sometimes give him credit for.

 
At Thursday, 06 October, 2005, Anonymous Anonymous said...

This is extremely helpful, but one thing I don't understand. You say at the end you think she has the judicial philosophy of Robert Bork. But what you offer in the Post--while effective and powerful--in no way makes that point. On what grounds do you think that?

 
At Thursday, 06 October, 2005, Anonymous Anonymous said...

Interesting how none of the Meirs nomination apologists are mentioning her position on affirmative action, a position that shows how much she is like O'Connor and not like Scalia or Thomas. This nomination is a disaster for the Republican party and for the Bush legacy.

 
At Thursday, 06 October, 2005, Blogger GrenfellHunt said...

I think there are a number of reasons for thinking that Miers is a Bork-like originalist. But the connection to Bork was done by Leonard Leo in the WP quote.

While I don't think religion is a test for public office, I do think that evangelicals tend to read the Bible and the Constitution in the same way: as strict constructionists. Miers' close friend, pro-life Texas Justice Nathan Hecht has made exactly this connection: "Again, Texas Supreme Court Justice Nathan Hecht told me she has a philosophy that grows out of evangelical exegesis and carries over into legal issues: 'She's an originalist -- that's the way she takes the Bible,' and that's her approach to the Constitution as well -- 'Originalist -- it means what it says.'"

From:
http://www.worldmagblog.com/blog/archives/018942.html

As for her position on affirmative action: I'm not clear exactly what it is at this point, but I suspect it is very close W's (which is part of why she got the nomination). I have no strong disagreement with W on this.

 
At Thursday, 06 October, 2005, Anonymous Anonymous said...

How do you reconcile your assertion she is brilliant with the articles she wrote, for example, for the Texas Bar Association? They are poorly written and extremely shallow. Because her analytical skills are evidently very weak, I don't think she will be able to fill the role of a swing vote. O'Connor and Kennedy have a degree of intelligence that allows them to be "creative". Constitutionally, this talent is quite destructive. In contrast, Miers will need to choose a side because she simply lacks this capacity. She will need others to hold her up. Perhaps she will choose the right side; maybe she won't. But those seemingly innocuous articles she wrote for the TBA unfortunately are depressing because they reveal such a limited mind at work.

 
At Thursday, 06 October, 2005, Blogger GrenfellHunt said...

Actually, it's not my assertion that she's brilliant; I'm simply repeating what at least one Texan who's worked with her says:

"That she is hard-working explains why she is able to do so much," said Colleen McHugh, a lawyer in Corpus Christi, Tex., who was chairman of the board of the state bar when Ms. Miers was president. "She is also brilliant."

Anyone is entitled to disagree with McHugh's judgment based on an article or two. But that she does very high quality work seems undeniable: that's why she keeps getting promoted by those who know her.

The notion that she's weak and easily led is contradicted by pretty much everybody who's worked with her. The "pitbull in size 6 shoes" would only be the start.

 
At Thursday, 06 October, 2005, Blogger jwt4412 said...

Well said.

Thank you.

My gut was telling me this, thank you for doing the research.

I'm feeling better everyday about this...

http://anavengingcantelope.blogspot.com/

 
At Friday, 07 October, 2005, Anonymous Anonymous said...

I still think you need to address the issue of how this supposed "pit bull" regularly wrote such drivel. There's a big gap between brilliant and these articles. How do you explain them? How do you reconcile them? I really would like to be persuaded.

 
At Friday, 07 October, 2005, Blogger Carl said...

The case for rejecting Miers (my main post here) is straightforward, as I've observed in comments here:

"1) Miers is not the most qualified potential nominee.

2) See # 1.

It's that simple. Don't over-complicate or -nuance the issue.

Big-time Federal and Constitutional law are as close to a meritocracy as anything in America. One First Street, NE, is no place for second-best. How can those who concede # 1 support Miers for the country's number one, Supreme Court?"

 
At Friday, 07 October, 2005, Blogger GrenfellHunt said...

1. As an academic, I'm really reluctant to use the word "brilliant." There aren't many people that in my judgment justify it. I thought Roberts' performance before the Senate Judiciary Committee was excellent, but I wouldn't personally have used the word "brilliant."
2. Sometime ago I ran into an article in my field that I thought was just awful. I later had lunch with a colleague of mine who is one of the people I would use the word "brilliant" to describe. He had just run into the article that I thought very little of...and told me how brilliant he thought the article was! I pointed out what I thought was wrong with it, and he agreed that I'd made some good points. Moral: evaluations of brilliance can be very subjective.
3. What I don't think is subjective is the general high level of excellence of Miers' work: that's how she rose to the top of her firm, that's how she impressed her colleagues in the Texas Bar, that's how she rose to White House Counsel, and (sorry) but that's even what impressed Reid and the Democratic Senators and why Reid thought she was qualified for SCOTUS. Regardless of her political views, everybody's dealt with her thinks she's first-rate.
4. Finally, as for the "pitbull" (which is a moniker of tenacity rather than intelligence), take a look at her fierce defense of gun-rights in the aftermath of some shootings in Dallas (in the original post). There's more than a touch of Maggie in this Texan.

 
At Friday, 07 October, 2005, Blogger GrenfellHunt said...

Dear Carl:

Love your blog! It's great to have you drop by.

Your argument is pure Jimmy Carter: Why not the best?

I don't know who you thought the best was for SCOTUS. (I might well have picked McConnell, Hewitt wanted Luttig). But since everybody would have a different answer, the question of who's the best? doesn't get us very far. If we asked, who's the best? no one would ever agree, and every nominee would always be voted down. (I don't agree that Roberts was the best pick for CJ--it should have gone to Scalia).

Now that the pick has been made the question is not--was she the best? but rather--do we oppose her or try to defeat her? thumbs up or thumbs down?

Since she's qualified and quite conservative, I go with thumbs up.

 
At Friday, 07 October, 2005, Blogger goddessoftheclassroom said...

As an English teacher, let me reassure you that good writing and brilliance are not synonymous. I have had many excellent students who could argue orally but who did not write well. Conversely, I've had strong writers who had a way with words but who were not great minds.

It is unfortunate that Miss Miers has less than stellar articles to her credit, but this is only one factor in her resume.

 
At Friday, 07 October, 2005, Blogger dan said...

Aristotle,

I posted some comments under the name Dan on Confirmthem.com, and you asked that I contact you by email. I tried the link you posted and the email bounced. I will look back here later today or early tomorrow for another means of contact.

Thanks for the excellent research. My own, conducted mostly by telephone, confirms it. I also got the strong feeling that she is the kind of person Mqarvin Olasky has concluded that she is in his cover article in World Magazine, out today, see http://www.worldmag.com/subscriber/displayarticle.cfm?id=11141

The answer to "Why not the best" may well be "She is." Just in a different way than we are used to seeing.

BTW, I disagree strongly with your preference for Scalia as Chief. The one thing that emerged during the Roberts hearings that impressed me most was his display of a very high level of interpersonal skills. That is extraordinarily important in a small group. Roberts strikes me as a uniter, Scalia is a divider, even to people who like him personally, when it comes time to form coalitions on the Court.

 
At Friday, 07 October, 2005, Anonymous ras said...

On your pt 4.5, you mention "In 2000 she gave money to Donald Stenberg, the Nebraska attorney general who defended Nebraska's partial birth abortion law before the Supreme Court."

As a layman unfamiliar with Nebraska's law - am I simply the last to hear of it? - I found the comment ambiguous. In the context of the entire post, it makes sense, but in just looking at the quote itself, it could cut either way depending on whether or not the Nebraska Law was pro or con.

I've seen at least one accusation, elsewhere, against HM that mentioned Stenberg as a strike against her, one that implied weakness in her anti-abortion views, so maybe it's not just yours truly. It might be better to tweak the comment in order to make clear what side Stenberg was on, for the benefit of we know-nothings.

Great post, by the way, and much needed at this time. I look fw to hearing more detailed answers from HM on her views, and have not fully made up my mind, but to date at least, the more I learn the more I like, which is kinda unusual in politics.

 
At Friday, 07 October, 2005, Anonymous Kelly said...

I feel better about her after reading your blog, but she has never been a judge! Doesn't that bother you at all?

 
At Friday, 07 October, 2005, Anonymous Anonymous said...

I haven't read this article, but based on the comments it should be a good read. I would advise anyone to listen to Dr. James Dobson's broadcast of 10/05 on Harriet Miers.

 
At Friday, 07 October, 2005, Blogger dan said...

Stneberg is considered a pro-life zealot by his opponents, had a tough election (I can't remember whether it was primary or general) in 2000 and got a pretty good sized amount of money from out of state donors. You had to really be tuned in to the movement to even know this was an important fight, but it was, I assure you.

 
At Friday, 07 October, 2005, Anonymous Anonymous said...

As to why Reid would endorse a conservative candidate for the Court, it is important to remember that, for all his faults, he does happen to be a pro-life Mormon. I don't know what role, if any, that played, but it's worth keeping in mind.

 
At Friday, 07 October, 2005, Blogger AST said...

I've been thinking about a couple of things.
1. The arrogance, elitism and mean spirit of the attacks on her.
2. The arguments against her are quick and easy, but don't hold up when you think about them:
Qualifications: she has had a lifetime of experience in court and practice. The idea that you have to be an Appellate Court Judge or a law school prof with lots of public writing on the subtle interstices of the Constitution don't make much sense to me. Who established these rules? There is no doubt that she is qualified. I don't think she has to be a "leading light" in the minds of the Beltway media crowd.

Paper Trail: This mystifies me. Is it because most of her critics write for a living, or just the same complaint as Schumer and Biden, that they don't know enough of her mind.

The Justices' job is to make decisions, not to write opinions. They seem to think we need some powerful writer like Oliver Wendell Holmes, but Scalia is a powerful writer and makes cogent arguments, and what good has it done us?

I think that Bush is correct that the biggest concern is that she'll change her philosophy after being on the court. But he's the man with the power of appointment, he's made good picks in the past, largely with her help. I trust him more than I trust George Will. I really hate elitism and especially intellectual elitism.

I've been predicting for some time that a split was coming between traditional values conservatives and libertarians. I think it's here. The right has been very successful lately, but they're about to blow it by getting spoiled.

 
At Friday, 07 October, 2005, Blogger GrenfellHunt said...

Dear Dan:

Thanks for dropping by. I can't imagine what went wrong on the e-mail: try presidentaristotle at hotmail dot com. It should work!

I appreciate your point about Scalia. My basic belief at the Chief's slot is that it show go to a sitting member, someone who's shown by their work on SCOTUS that it's merited. Roberts was a good nominee, but if he slides toward Souter giving him the Chief's slot will compound the disaster. But if Roberts is as good as we hope, then I agree that his interpersonal skills make him better suited for the role.

For Kelly and RAS:

No, her lack of experience as a judge doesn't worry me. Some of the greatest judges had no prior judicial experience.

As for Stenberg: he's very pro-life, and the Nebraska statued banned partial birth abortion. Her contribution to him in 2000 is thus HIGHLY significant for understanding her views.

Thanks again, one and all.

 
At Friday, 07 October, 2005, Blogger goethegirl said...

Thanks for a very sane reaction. I'm distressed to see conservative (mostly male) writers making all the arguments the Dems would have made against Miers. It's as if the conservatives are becoming contaminated by the negative reaction of liberals to the President.

 
At Friday, 07 October, 2005, Blogger gkcgirl said...

I'll bet you a dollar that Roberts won't slide toward Souter.

 
At Sunday, 09 October, 2005, Blogger Andrew said...

Hi. The quote about gun control contains errors, as discussed here....

http://www.confirmthem.com/?p=1512

 
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