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David N. Mayer

“Mier”’d in Mediocrity and Mendacity

Everyone who cares about the Constitution – which is to say, all of us who care about individual freedom and limits on government power (which is what the Constitution is meant to help safeguard) – now can breath a sigh of relief that Harriet Miers, President Bush’s nominee to the Supreme Court, has withdrawn her nomination.  What are the lessons to draw from this debacle?  In my view, the “winners” and “losers” in the Miers affair are as follows:

The Winners

·        Checks and balances

The framers of the Constitution were wise not to vest the appointment power entirely in the President.  They gave the Senate a check on presidential powers – through its “advise and consent” power to veto presidential nominees – for precisely the kind of nominee Ms. Miers exemplified:  a presidential crony, unqualified for the job for which she was nominated.  As I’ve noted in previous entries, however, the U.S. Senate today can no longer be counted on to do its duty responsibly.  Had the Miers nomination proceeded, with Senate Judiciary Committee hearings and ultimately with a floor vote, there is little doubt that the Senators, both Democrat and Republican, would vote “Yes” or “No” based not on legitimate reasons (her qualifications, or lack thereof) but on illegitimate reasons (their guess, or gamble, on how she’d vote on particular cases or issues). 

The principal usefulness of the Senate’s “advise and consent” power, today, is that it delays an unwise nomination long enough to allow interested American citizens who know what they’re talking about – like me and my fellow “bloggers” and political commentators – to do the Senate’s job.

·        Principled conservatives and libertarians

Contrary to the political “spin” Democrats are now trying to put on Miers’ withdrawal (see “Lying Democrats,” below), it wasn’t “right-wing extremists” who torpedoed her nomination.  And she wasn’t opposed just because she wasn’t “demonstrably conservative enough,” as one left-liberal law professor today has opined.  She was opposed because she was not qualified to be a Supreme Court justice; she was utterly lacking in the constitutional law experience that anyone who takes the Constitution seriously would expect in a Supreme Court justice.     

The intellectual leaders of the opposition to Miers were limited-government conservatives and libertarians – people who recognize the need for Supreme Court justices who really understand the Constitution.  Ideally, Justice O’Connor’s successor would be someone who votes the “right” way on constitutional questions – someone who, like O’Connor at her best, is willing to enforce both the limits the Constitution puts on the powers of government, state and federal, and the guarantees it provides for individual rights.  But, as I’ve previously noted, it’s not enough that a justice simply vote the “right” way:  to do his or her job competently, a Supreme Court justice must also be able to articulate the reasons for his/her decisions in written opinions.  That’s why some expertise in constitutional law – not necessarily as a federal appellate judge, but at least as an academic or as an attorney specializing in constitutional law cases (not just an ordinary trial lawyer, as Ms. Miers was) – is indeed a prerequisite for the job. 

Now speculation turns back to the question, Who will President Bush pick as a replacement?  Let’s hope that the commentators who have been so helpful in holding Mr. Bush accountable for his unwise selection of Miers will be equally attentive to his next pick.  By choosing one of the many able conservative judges on the federal bench, male or female (see “Sexism,” below), Bush also will have a chance to redeem himself, somewhat, with the many of his supporters who found the Miers nomination to be so deeply disappointing.

·        Charles Krauthammer, the prescient one

Conservative commentator Charles Krauthammer, in a recent column, suggested an “exit strategy” for the Miers nomination that might save some face for the Bush administration:  Let the Senate insist that the White House must produce records of Ms. Miers’ memos to the President, in her role as Counsel, because her paper trail is so thin; and then withdraw the nomination, on the grounds that such production of confidential communications would undermine the independence of the executive branch.  

As it turns out, Krauthammer’s suggested strategy was precisely the way the Miers nomination came to an end.  President Bush in recent days had declared that he’d draw a “red line” (I think he meant “a line in the sand”) in refusing to turn over such privileged documents.  And Ms. Miers, in her withdrawal letter, stressed her concern that members of the Senate would not only seek documents about her service in the White House but also would expect her to testify about it.  “As I stated in my acceptance remarks in the Oval Office, the strength and independence of our three branches of government are critical to the continued success of this great Nation,” she wrote.  “Repeatedly in the course of the process of confirmation for nominees for other positions, I have steadfastly maintained that the independence of the Executive Branch be preserved and its confidential documents and information not be released to further a confirmation process.  I feel compelled to adhere to this position, . . . [thus] I have decided that seeking my confirmation should yield [to protection of the prerogatives of the Executive Branch].”  Thus, Ms. Miers can save face both for herself and for her pal, the President:  officially, she withdrew not because she was proven to be incompetent for the Court (the real reason) but in order to protect the independence of the Executive Branch.  How clever! 

I’ve long respected Krauthammer as one of brightest conservative commentators.  He now can be credited for being a genius in forecasting smart political strategy. 

One additional benefit of this exit strategy:  it would seem to rule out the nomination to the Court of Attorney General Alberto Gonzales as well, for essentially the same reasons. 

The Losers

·        President Bush

Mr. Bush truly has looked like a fool – someone blind both to political reality and to constitutional law – in nominating an unqualified crony to the Court.  Apparently, he was gambling that his strongest supporters (his so-called “conservative base”) would have blind faith in his judgment.  Yet, as many insightful commentators (including George Will and myself) have noted, Mr. Bush’s record as president has not demonstrated any grounds to believe that his judgment on matters of constitutional law can be trusted.  Mr. Bush is as ignorant of the Constitution as are virtually all the members of the Senate, Democrat or Republican.  His nomination of someone like Miers was the last straw for many people, like myself, who voted to re-elect Bush (not so much because Bush was the “lesser of two evils,” but because his opponent, John Kerry, was truly “the evil of two lesser”), but who have lost confidence in Bush because of the many ways in which he has shown himself to be more a “moderate” than a true “conservative.”  (Expansion of the welfare state through his Medicare prescription-drug program tops the list of betrayals, followed closely by his “No Child Left Behind” federalization of education, his signing of the McCain-Feingold campaign-finance regulatory expansion, etc.) 

He might be able to partially redeem himself – to partially make up for the colossal mistake that the Miers nomination represents – but only if he nominates someone who is, first and foremost, truly qualified to be a Supreme Court justice and, second, a principled jurisprudential conservative.  (And as someone who’s an admirer of Justice Clarence Thomas – and who has written here about the important differences between the jurisprudence of Thomas and Justice Scalia – I’d add that the ideal candidate to succeed Justice O’Connor would be someone who’d be another Thomas, not another Scalia.) 

·        Lying Democrats

As noted above, the Democrats’ spin on the Miers withdrawal is that “right-wing extremists” in the GOP torpedoed the nomination.  Although for reasons of political strategy, Senate Democrats seemed generally willing to be relatively silent about Miers and to allow conservatives and libertarians to take the lead in opposing her based on her cronyism and/or lack of qualifications, they weren’t entirely silent about their own qualms over Miers.  Indeed, in the past several weeks, many prominent Democrats couldn’t resist trying to use the Miers nomination to score points against Mr. Bush.  For example, Joe Biden called her “the blankest slate I ever saw.”  Barbara Boxer called the nomination “very troubling,” observing that “we don’t know too much except that this is a good friend of the President who was in charge of the search committee and she wound up picking herself.”  Jon Corzine compared Miers to another failed Bush crony, former FEMA director Mike Brown.  Dick Durbin complained that after meeting with Ms. Miers for 45 minutes, “she told me she wasn’t prepared to answer” his questions about “constitutional principles or even [about] her role as White House Counsel.”  Russ Feingold declared he was “concerned about whether she is qualified for the Supreme Court” as well as “whether she has the independence necessary, especially given her role at the White House for the last 5 years.”  Dianne Feinstein expressed concern on issues of executive power and, of course, Miers’ possible opposition to Roe v. Wade.  Patrick Leahy called Miers’ responses to the questionnaire sent her by the Senate Judiciary Committee “incomplete” and “inadequate” – answers that “heighten, rather than lessen, concerns” about her abilities as a Supreme Court justice.  Carl Levin noted that Miers’ lack of judicial experience, together with her lack of courtroom experience, “works to her disadvantage.”  And Chuck Schumer, noting his disappointment with Ms. Miers’ answers to his questions after their first meeting, stated the obvious:  “She is not a constitutional lawyer.  She never purported to be a constitutional lawyer.  But she clearly needs some time to learn about these [landmark Supreme Court] cases.”  It appears that, in voicing concerns about the Miers nomination, Senate Democrats were echoing many of the same concerns that “right-wing” Republicans have expressed. 

As I’ve previously suggested, notwithstanding all this bluster, Senate Democrats are probably deeply disappointed by Miers’ withdrawal – either because they hoped to score political points during the confirmation hearings (something they were unable to do during the hearings for Chief Justice John Roberts, who put them all to shame), or because they were gambling that Miers might prove to be a “soft,” or malleable, vote on the Court, another Justice Kennedy or Souter, precisely because she did lack a well-developed constitutional philosophy.  Now, President Bush is likely to nominate someone who will not be so easy a push-over. 

The intellectual emptiness of left-liberal Democrats is becoming increasingly tiresome.  Any time I hear one of them rail against “right-wing extremists,” I’m tempted to reply by noting (as Walter Williams observed in a 1996 columns) that we “extremists” (or “radicals for liberty,” as both Williams and I like to call ourselves) are proud to be in the company of men like Thomas Jefferson and James Madison.  The United States was created by “extremists” devoted to individual freedom and to limited government.  And what we desperately need in Washington today, especially on the Supreme Court, are some “extremists” who truly respect the Constitution – people who do not see it, as most Democrats do, as an impediment standing in the way of achieving their public-policy schemes. 

·        Proponents of sexism (otherwise known as “diversity” or “affirmative action”)

Finally, the Miers debacle exposes the dangers of using sex as a sole, or even a principal, factor in choosing a new justice for the Court.  If Mr. Bush were capable of understanding such irony (which I’m sure he’s not), one might even imagine that in picking Ms. Miers, he was giving precisely what they wanted to those persons who demanded that Justice O’ Connor must be succeeded by another female justice – the so-called “diversity” crowd who, in this case, also included the First Lady, Laura Bush. 

Now that he’s been giving a second chance, let’s hope that Mr. Bush will ignore these idiotic (and sexist) demands and will instead nominate truly the best person – male or female – that he can find.  Supreme Court justices should be appointed based on their brains, not their hormones or genitalia.

 | Link to this Entry | Posted Thursday, October 27, 2005 | Copyright © David N. Mayer