Miers: View From the Cheap Seats

I’ve kept out of the hair-raising debate on the Miers nomination simply because I’m one to acknowledge my own short-comings, my own gaps in knowledge. I simply am not a lawyer; I don’t even have an undergraduate degree.

Observing as those who do possess the formal credentials and/or demonstrable knowledge duke it out has been a valuable learning experience for me, however. The paid pundits on the right are, for the most part, against the nomination. Wait, allow me to rephrase that: the paid pundits on the right are, for the most part, rending their garments and tearing out their hair over the nomination.

George Will derides Miers' alleged intellectual inferiority and--sounding like the most leftist of leftists--gives her patron a kick in that area to boot.

[President Bush] has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their prepresidential careers, and this president, particularly, is not disposed to such reflections.

Ann Coulter is incensed that such an inferior being—read: someone who did not attend an Ivy-league law school—has been put forth as the nominee. Coulter:

Harriet Miers went to Southern Methodist University Law School, which is not ranked at all by the serious law school reports and ranked No. 52 by US News and World Report. Her greatest legal accomplishment is being the first woman commissioner of the Texas Lottery.

And this is just unnecessary:

While Bush was still boozing it up in the early '80s, Ed Meese, Antonin Scalia, Robert Bork and all the founders of the Federalist Society began creating a farm team of massive legal talent on the right.

So let them get elected president and they can make the choice themselves.

(I used to think that Ms. Coulter used her legendary vitriol as a tool to get out the conservative message; something that I thought she believed in. Now I suspect that her vitriol is merely a character flaw, wielded against anyone who doesn’t toe her mark in the manner that she sees fit.)

Don’t our opponents claim that conservatives only believe that the privileged should be in power? It appears that, in some cases, our opponents were correct. We unwashed and uneducated masses are forced to wonder whether a complete program of law is even being taught outside of the elite list of schools. If not, why don’t we just shut down these Acme Law Schools right now and disallow any and all practice of law unless the “lawyer” in question was fortunate enough to get into Yale, Columbia, etc.?

If this nomination has no other use, it has served at least one purpose: it has revealed how certain privileged members of society view the rest of us, even those of us who are formally educated. Ms. Miers' qualifications as a Supreme Court justice are fair game; the rest is merely snobbery.

Onward.

Daniel Henninger and Virginia Postrel (read various posts) make a case against the Miers nomination that is patently 180 degrees opposite of that of Will and Coulter, that it is actually born of a different sort of snobbishness: Texas cronyism. Miers was nominated solely because she is a friend and professional colleague of the president.

Henninger notes (as Coulter also quite crudely does above) that a lot of the anger against President Bush for this nomination stems from the perception that, by nominating Harriet Miers, he is ignoring or repudiating everything that the Vast Right-Wing Conspiracy has built up since the beginning of President Reagan’s first term.

In 1982, five years before Ronald Reagan nominated Robert Bork to the High Court, law students at several top-tier schools founded the Federalist Society, dedicated to shaping a robust, coherent conservative theory of jurisprudence. Robert Bork was a society lodestar, the most formidable conservative jurist of his generation. The Democrats destroyed his nomination by personalizing their disagreement with him. After that, reforming and retaking the Court became a personal crusade for many conservatives. [SNIP]

For nearly 25 years, conservative legal thinkers have been building an argument that liberalism transformed the Court into an instrument of national policymaking more appropriate to the nation's legislative institutions. Roe v. Wade is the most famous of those policy decisions. [SNIP]

Across these many years conservatives have been creating a structured legal edifice to stand against a liberal trend toward aggrandized federal power that began in the 1930s. [SNIP]

Harriet Miers may share these reformist views, but her contribution to them is zero. Conservatives are upset because they see this choice as frittering away an opportunity of long-term consequence.

In short, the Big Boys and Girls are ticked because, after all that hard work they did, they--or one of their number—doesn’t have sole dibs on the spoils.

Still others surmise that the nomination of someone like Miers is born of Senate Republican cravenness; their unwillingness to go against the likes of Kennedy, Schumer, Clinton, etc., to push the conservative agenda forward. Says Thomas Sowell:

When it comes to taking on a tough fight with the Senate Democrats over judicial nominations, Senate Majority Leader Bill Frist doesn't really have a majority to lead. Before the President nominated anybody, before he even took the oath of office for his second term, Senator Arlen Specter was already warning him not to nominate anyone who would rile up the Senate. Later, Senator John Warner issued a similar warning. It sounded like a familiar Republican strategy of pre-emptive surrender.

Before we can judge how the President played his hand, we have to consider what kind of hand he had to play. It was a weak hand -- and the weakness was in the Republican Senators.

(The Anchoress notes that Robert Novak and Mark Levin concur.)

So what’s a literate, blue-collar sort supposed to conclude from this mish-mash of opinion, speculation, hysteria and cowardice?

Why would President Bush pick someone like Harriet Miers who has never sat on a bench and has no real legal scholarship--as opposed to either Janice Rogers Brown or Priscilla Owen, each of whom possess both qualities? Several answers come to mind:

1. Because he was told that neither of the latter two candidates (or someone like them) would make it out of the Senate Judiciary Committee (unknown),
2. Because the latter two candidates (or someone like them) would have their nominations filibustered by the main body of Senate Democrats (proven),
3. Because the Senate Republicans are unwilling to go to the mat for a strong conservative choice, type of candidate that will cause the Democrats to pull out the proverbial big guns (proven),
4. Because the president doesn’t understand what his responsibilities are as president when it comes to selecting persons to sit on the High Court (unlikely, judging by the nominations he has made for lower courts and for the Chief Justice of the United States),
5. Because, for whatever reason, he wants to stick it to the conservative elites; the type who formed the Federalist society (would be an out-of-character example of stage-one thinking), and/or
6. Because he wants to light a fire under the Senate Republicans to get them to fight for the conservative agenda (I hope).

I agree with Sowell, et al., that number six is most likely true.

All the talk about Ms. Miers’ evangelical Christianity, her various first-female-lawyer milestones and the fact that she is a long-time colleague of the president’s seem merely like adequate cover against allegations of Souter-syndrome: being a liberal in conservative-clothing. (I think that most of us who know even a little bit about the judicial branch of government only want a justice who isn’t an activist even if that activist errs on the conservative side.)

I'm betting that President Bush is doing what he usually does: call people out. Why should he put a Janice Rogers Brown up to be savaged by the Democrats if the Senate GOP isn’t willing to stand with him and give Brown cover? If they can't hang, then whose problem is that? The president might as well put me up for nomination.

My predictions: if Harriet Miers is lucky enough to make it through the judiciary committee, she will be voted down by the full senate. Then what? Following the rejection, President Bush makes a phone call to Senator Frist and asks: “now are you willing to fight for the type of candidate that you claim to want?”

Then again, I could be wrong. :-)

For all their Ivy education and conceit, these screeching pundits would be road-kill in a game of chicken. Or poker. It’s sad that a decisively-elected second-term president has to resort to this type of strategy, but the president is only playing the hand that he has been dealt.

UPDATE: Thanks, Glenn!