Tuesday, October 25, 2005

How to be wrong twice: the dangers of trading Miss Miers

The great baseball writer Bill James once remarked that after he'd evaluated a trade in baseball in print, he never changed his mind about it--even if the trade didn't work out the way he thought. Why? Because changing your mind in print only gave you the opportunity to be wrong twice.

President Bush yesterday side-stepped a question over whether the White House was considering withdrawing Miss Miers. The result was a new surge of speculation over replacement candidates for Miss Miers.

Now even if you think that Miss Miers deserves to be confirmed for SCOTUS--as I do--it's still clear that she has been a political mistake for the President. But trading her for another candidate gives the White House an excellent chance to double the damage politically, and dig themselves into a deeper hole than they are right now. It also gives them a chance to move from a candidate that W knows perfectly to a real unknown who might do serious damage on SCOTUS.

Let's take a look at some candidates to see how they could damage both the White House and the country. And let's compare them for a moment to Miss Miers.

We can start with three things we know, or at least have good reason to believe, about Harriet Miers:

1. Miss Miers almost certainly opposes Roe v. Wade: Louise Raggio has stated explicitly that Miss Miers opposed Roe v. Wade in 1989, and Miers' endorsement of a constitutional amendment to ban abortion agrees with that. Neither Rehnquist nor Scalia nor Thomas nor Kennedy nor Souter nor O'Connor has ever shown such opposition to abortion.
2. Miss Miers almost certainly opposes Lawrence v. Texas: Miss Miers publicly supported the Texas sodomy law that O'Connor, et al struck down. As a lawyer, she could scarcely have done that if she thought it was unconstitutional.
3. Miss Miers is an originalist: she is attested as such by Ken Star, Leonard Leo, and others; and her Senate questionnaire is strongly originalist in content.

So why trade her? And for whom? The standard short-lists are crammed with candidates all more risky than Miers, either because they have no anti-Roe credentials, no anti-Lawrence credentials, or no evidence of an originalist philosophy of law. Others are risky because as out-of-town candidates they have all the hallmarks of a Souter or Kennedy or O'Connor: conservatives who came to DC and then went liberal.

1. Attorny General Gonzales. This apparently pro-Roe nominee is high on the Bush shortlist and would probably end the Bush presidency, or at least leave him without any friends besides Karl Rove and Laura.
2. Maureen Mahoney. A highly qualified lawyer and a stealth candidate. She's been suggested by the Washington Post and for good reason: the word on the web is that she is both pro-Roe and anti-originalism.
3. Karen Williams. A South Carolina appellate court justice with a Democratic husband--as an out-of-towner, she is an excellent candidate to be converted to liberalism on the Georgetown cocktail circuit. Her conservativism likely won't last two years in DC.
4. Janice Roberts Brown. An outspoken conservative, often thought to have libertarian leanings--yet she has apparently never criticized Roe or Lawrence. She will be filibustered; her California conservativism could easily come across as too extreme and backfire in the hearings with calamitious results in 2006 for the GOP.
5. Michael McConnell. A brilliant conservative, and I've suggested him on my blog: he is on-record opposing Roe. But politically, he'll be denounced for his support for Bob Jones. And he has odd views on polygamy. In all, he is a more brilliant conservative than Miers, but a less reliable one; if the Dems decide to bork him, he risks reversing the 2004 GOP gains with blacks and Hispanics.
6. Michael Luttig. He's never criticized Roe or Lawrence, and shows little interest in reversing mistaken precedents. The most likely guess is that he would be an originalist on new cases, but uphold bad precedents stare decisis.
7. Emilio Garza. He's definitely anti-Roe, and the one candidate on the list who is a definite improvement over Miers, both politically and substantively. Unfortunately, the White House has never shown any interest in him, and the chances of him getting the pick are apparently virtually zero.
8. Edith Jones. Most famous for her opinion in McCorvey v Hill, where she criticizes Roe--but less sharply than Sandra O'Connor did in the 1980s, and O'Connor later upheld Roe in the Casey decision.
9. Miguel Estrada. The ultimate stealth candidate. A reputation for being very conservative, and not a line on-record to prove it. In contrast to Miers' extensive anti-abortion and anti-sodomy track record, Estrada offers zilch.
10. Connie Callahan. A Hispanic nominee, said to be Bush's second choice after Miers; weak on religious liberty issues and almost certainly pro-Roe.

The above list is not exhaustive but it is instructive--there are very view nominees out there with a stronger, more solid, or more reliable conservative record than Miers. Of the ten listed above, I would rate 1 better (Garza), one about equal (McConnell), and eight worse. Trading Miers offers a VERY high risk that we will get a nominee less conservative, and less reliable than Miers.

As Bill James would have put it: you wanna trade Miers? it's an opportunity to be wrong twice.


At Tuesday, 25 October, 2005, Blogger Rob McEwen said...


I'm truly shocked at your assessment of Edith Jones. I think her McCorvey v Hill decision is itching to overturn Roe... but you MUST factor into the equation that circuit court judges are forced to abide by higher court rulings, even if the judge disagrees with it.

Also please read the following two articles:




I just can't believe that you'd Edith Jones' record as lesser evidence of being anti-Roe than Miers's record.

Basically, all I've seen for Miers is that she made a one time $150 contribution to a pro-life group, stated once that "abortion is murder", and supported a life amendment. But the problem here is that Miers could still be personally pro-life, but yet be convinced that, even as a supreme court justice, she is lawfully bound to support Roe due to precedent, ect. Also, I understand that some other pro-Roe SCOTUS votes also came from pro-life judges for the very same reasons. In fact, Miers's support for a life amendment could just as easily be interpreted as feeling as thought one is REQUIRED in order to overcome Roe... have you ever considered that?

In contrast, I think that it is clear that Edith Jones is BOTH personally pro-life AND has a record of jurisprudence consistent with someone who'd not let precedent get in the way of overturning Roe. Moreover, she has not only criticized abortion, she has directly criticized Roe. This is a VERY important distinction!

You also have to put into perspective that Federal judges can't go around picketing abortion clinics, or they'd present an image that would prevent subjects of their court from feeling that they'd get a fair hearing.

In addition, Edith Jones wrote McCorvey v Hill knowing full well that the world would be looking over her shoulder... which tells me that she was very courageous for being as strong has she was in that opinion which was written at a time when we ALREADY knew that being "stealth" was the sure ticket to SCOTUS... she wrote McCorvey v Hill probably knowing that doing so would cancel any possible ticket to SCOTUS... but I'd bet she tempered her remarks to hedge her bet just a little (In fact, from reading that opinion, I sense someone underneath seething with anger at Roe, but desperately trying to be as civil and thoughtful in her explaination as possible.)

Having said all of this, I think that Jones is the perfect choice for unifying the pro-life pro-Miers crowd together with the anti-Miers originalist crowd...

PLEASE... PLEASE... read those two articles and please re-read the McCorvey v. Hill case and give Edith a second chance.

Thanks for reconsidering!

Rob McEwen

At Thursday, 27 October, 2005, Blogger GrenfellHunt said...

Rob: I love the article about her talk to Harvard. I still have more worries about her opinion in McCorvey than some do, but I've put her on my short list. :)

Thanks for your long and thoughtful post!


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