Saturday, October 29, 2005

A Great Opportunity

In nominating Harriet Miers for the Supreme Court, George W. Bush made one of the biggest mistakes of his presidency. Having suffered the humiliation of having the intellectual wing of his own supporters shoot down his nominee, Bush has a golden opportunity to restore excellent and demonstrated ability, rather than stealth, as the most important qualification for a Supreme Court nominee. Bush must not miss this opportunity.

The Miers nomination was, as Robert Bork put it, “a disaster on every level.” Rather than putting forward someone with impeccable qualifications and a demonstrated ability to lead the nation’s highest court, Bush chose a supposedly “safe” pick- safe both because he knew how she would vote and because she had never publicly expressed any contraversial views. The broad response against this nominee was heartening and inspiring for those of us who are increasingly cynical about politics. As David Frum of National Review said upon Miers’ withdrawal- “[t]he system worked.”

In order to make up for the Miers mistake and set an important precedent for future nominees, President Bush should now appoint the anti-Miers. That is, he should appoint someone with (1) the longest paper trail of excellent scholarship he can find; and (2) someone respected by both the let and the right as being of the highest intellect. There are several excellent choice who would fill these qualifications, but I think probably the best selection would be 10th Circuit Judge Michael McConnell.

McConnell has several important factors working in his favor (for a similar defense of picking McConnell- see this post):

1. He is respected as having an incredible intellect by both the left and the right. It is uncontroversial to say that he is one of the most brilliant conservative academics of his generation.

2. He would have support from many of the intellectual on the left, many of whom signed this letter in support of his confirmation to the Circuit Court. Signatures of this letter include Cass Sunstien- currently the leading liberal academic in the country by many measures.

3. He holds many conservative viewpoints that should please those who voted for Bush- including unequivocal opposition to Roe v. Wade.

4. He was recently confirmed to the Circuit Court, without any threat of filibuster, so his nomination may not trigger a fight over the nuclear option.

5. He has a very long paper trail- meaning that he has defended his views in public and has had to put his thoughts to the test.

I believe the Robert Bork precedent has been overemphasized to the point where many wrongly believe that no one with a public record on important constitutional issues can make it to the Supreme Court. By nominating McConnell, George W. Bush can obliterate the Bork precedent. The juxtaposition between an embarrassed Harriet Miers- the ultimate stealth candidate- having to withdraw, with Michael McConnell overwhelming passing through the Senate, would be a powerful precedent for future nominations. It would once again establish excellence, and not stealth, as the primary qualifications for a Supreme Court nominee. By making this move, George W. Bush can turn one of his administration’s biggest mistakes into one of its most important achievements.

18 comments:

Charles Iragui said...

McConnell is an originalist of the highest repute. If Bush nominates him, the Pres will have honored his campaign promises AND have set a remarkable standard for nominees: McConnell and Roberts.

Whether Miers was a blunder with good consequences or a calculating move, the Pres has tarnished his reputation.

I do think he would do well to bring new blood into the admin: Greenspan at Treasury, after his retirement from the Fed in January.

J. Li said...

The fight looks imminent, which is just GREAT! I hope the White House can iron out one COHERENT message that blocks Democrat opposition. Dubya will have the full support of his base, ready to go to bat for him especially as a pendulum swing away from the whole Miers episode. The problem is when people like Arlen Spector start immediately to show disappointment, even hesitation. He is the REPUBLICAN CHAIRMAN of the JUDICIARY committee. If even he is wary about a nominee, that makes the 44-member Senate Dem composition look all that much stronger (before we even talk about the filibuster). I guess Spector can say whatever he wants, but if we think we can win this fight, then the White House needs to be ready. Although I wish Alito or Luttig could be as open as Bork was, that just isn't politically smart. I just hope the "qualified strict constructionist conservative" label is enough...

Scott said...

Your title is spelled wrong. Is that a joke of some sort?

Also, McConnell, woot woot.

Misha Tseytlin said...

[corrected]

D said...

Misha,

My comment goes to one of your premises.

When you say the system worked with regards to taking down Miers, you’re correct, if by “the system” you mean the vocal, radical, religious right. There are two schools of thought when it comes to the Miers debacle. One school believes she was taken down because of her lack of qualifications. I’m in the second school, the one that believes she was taken down because she had in fact--as you put it--publicly expressed controversial views. The radical religious base of the party was afraid that her apparent past support for some gay rights and expression of some belief in self autonomy meant that she was insufficiently opposed to civil rights for gays and opposed to reproductive rights for women.

The Miers nomination was a stark reminder that the Republican party has been hijacked by the radical religious right. Were I a moderate Republican, I’d be worried.

-Dave Lane

Charles Iragui said...

Dave,

Isn't this a switch in the narrative? Just a week ago, Miers was a sop to the Religious Right. Now she has been sacrificed to the same.

Fair reading: conservative activists didn't have confidence that Miers would advance originalism on the bench and lead by intellectual brilliance, and didn't like the implication that stealth is the constitutional approach.

best,

Charles

Misha Tseytlin said...

Dave- charles is exactly right. The leaders of the religious right-Dobson, ect. were out in full force for her. Who was leading the charge against her? George Will, Robert Bork, Bill Kristol, Laura Ingraham are the ones who sunk Miers with their attacks that the Bush administration could only answer with weak charges of sexism and "trust the president."

Think about it- what assurances were there to the religiuos right about Roberts as compared to Miers? On Roberts, there was no record on abortion. On Miers, we had people from her church, we had Dobson on tv, all saying she was pro-life. The difference between Miers and Roberts was qualifications. The one lacking qualifications had to withdraw, the one with qualifications is Chief Justice of the United States. The system worked.

Misha Tseytlin said...

I just saw some of your other posts, and I see you will not be convinced by my analysis of Dobson ect. But I do want you to answer the Roberts example. It seems, at least, Miers and Roberts were about equal in their public pronouncements on Roe. Yet, I dont know any prominent conservatives who opposed Roberts... I think the easiest denominator is qualifications- anything else seems like a stretch.

D said...

Misha,

I cited in another post (sorry, I'm starting to confuse various threads) the dailykos.com theory that the 'qualifications' attacks coming from the National Review, et al. made Miers particularly vulnerable to criticism from the religious folks.

That would explain why Roberts didn't receive the same treatment, or meet the same end.

Frankly, I think that many if not most commentators (right, left, intellectual, religious, etc. -- not that any of those things are mutually exclusive) have no idea what it means to be a 'stict constructionist,' 'originalist,' 'textualist,' etc. Like J. Li, I think most people are concerned with the substantive outcome. The intellectuals were pretty sure they could count on Roberts to tow the line, and the lifers blindly followed their lead.

The intellectuals weren't so sure about Miers, and she'd said some things that scared the lifers (pro-gay sort of, maybe even pro choice to some extent).

When the next nomination plays out maybe some of our theories will be tested.

-Dave Lane

Charles Iragui said...

Dave,

Some on the right do simply care about the results of the decision, not fidelity to rules of law. For instance, many on the Christian Right, just like many liberals, see this as a just another form of political struggle for the result.

Hence, for such people the law is a sophistic game, a labyrinth of mental mazes leading to power.

For libertarians, the law is viewed as mostly a limit on government and perhaps a vindication of natural rights. Janice Rogers Brown is a prominent exponent of this thinking, as is visiting prof Randy Barnett.

Others, faithful to the Common Law tradition, see the law as society's attempt to enforce essential fairness and to ensure the mildness of power. John Roberts falls in this category, as does Justice Scalia.

Neither of these last two views sees the law as phony; both, very differently, see the integrity (honesty + determinancy) of legal decision-making as possible and desirable.

Misha Tseytlin said...

Dave- are you seriuosly saying that the people on the right are such ideologues that they would accept a completely incompotent candidate (lets say, way worse than Miers), just to get their results? I am pretty sure the last couple of week refuted that contention, which I think is preposterous. I also think the left would not accept such an unqualified supreme court justice, even if they thought he/she would give them the "right" outcomes.

D said...

Charles,

Do you know of anyone whose theory of constitutional interpretation regularly leads to outcomes at odds with his personal, moral beliefs? Sure, Scalia occasionally tosses out a flag burning case, or rules in favor of criminal defendants, but by and large his opinions seem to reflect his politics.

Coincidence? I doubt it. Maybe not everyone explicitly acknowledges his biases, or ends-driven decision making, but I think that much of the time that's what's going on. Maybe it's a chicken/egg problem.

Of course one's theory of constitutional interpretation is itself a normative choice on some level.

That's not to say that there aren't judges who make a good faith effort to apply the law fairly. But in the end we're all human beings.

-Dave Lane

D said...

Misha,

I'm tempted to give examples of relatively unqualified, incompetent justices that the right supported whole-heartedly, but some day if I'm lucky I might have to argue in front of the Court.

I think that if Miers was seen as a die hard right wing conservative, she would have made it through. Much of the worry--even from the so-called intellectuals--had to do with 'Souter fear.'

-Dave Lane

Charles Iragui said...

Misha,

I think Dave's got a point on this one. The Republican presidents don't have a stellar record on appointments to the Supreme Court.

The only appointments the Democrats have had in the last 40 years are Breyer, Ginsburg and Marshall. Not a bad group, qualifications-wise (credentials + proven intellectual capacity).

OK, there was Fortas...

J. Li said...

Suppose Bush nominated Justice Ginsburg in 2005 (assume it's 1980, and she's the age she was, on the D.C. Circuit). For sure then-Judge Ginsburg was fully qualified, but I am 100% sure "we" would have a fit. I know, that could never happen, but my point is simply that it isn't just all qualification. Should conservative groups in such an instance just sit back and say "Too bad, our President did his thing and 'advice and consent' is all about qualification and not ideology"? Surely not. Ideology does play a role, and usually the President is not going to go out of his way to pick an opposing ideologue. But when he does, no matter how qualified that person is, I think I would still raise hell.

D said...

At this point I'd like to raise a practical question. With all this blogging, when am I going to study for the MPRE?

J. Li said...

The answer: "Take the darn thing in March."

Misha Tseytlin said...

I think it would be difficult to mount a principled argument against a qualified judge like Ginsburg being put on the Supreme Court. We would be reduced to the level of voting-counting, which I thought was reserved for PFAW and NARLA. Certainly, if Bush nominated someone who was a complete liberal, I would be unhappy with his job performance. But ultimately, it is the president's job to pick the Supreme Court nominee, and the only proper inquiry for Senators is (1) character; (2) qualifications.