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Do You Trust Him?

Monday, October 3, 2005  |  posted by Hugh Hewitt
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Harriet Miers isn’t a Justice Souter pick, so don’t be silly. It is a solid, B+ pick. The first President Bush didn’t know David Souter, but trusted Chief of Staff Sunnunu and Senator Rudman. The first President Bush got burned badly because he trusted the enthusiams of others.

The second President Bush knows Harriet Miers, and knows her well. The White House Counsel is an unknown to most SCOTUS observors, but not to the president, who has seen her at work for great lengths of years and in very different situations, including as an advisor in wartime. Leonard Leo is very happy with the choice, which ought to be enough for most conservatices.

As I wrote last night, Judges Luttig and McConnell are the most qualified nominees out there, but I think from the start that the president must have decided that this seat would be given to a woman, and it is very hard to argue that she is not the most qualified woman to be on the SCOTUS for the simple reason that she has been in the White House for many years.

When Chief Justice Roberts was nominated, I wrote a piece for the Weekly Standard on the importance of Executive Branch experience, “The Presidents’ Man.” That piece focused on John Roberts’ service in the Counsel’s Office under Reagan, and concluded that his nomination brought

to the highest court the sort of experience it deserves among its members, especially in a time of war. It can only help all the justices, even those who will vigorously disagree with the new justice from time to time, to have within their number a genuine voice of experience from within the inner circles of presidential decision-making.

The Chief Justice’s experience did not, however, include GWOT experience, and it is here that Miers has a decisive advantage. Consider that none of the Justices, not even the new Chief, has seen the battlefield in the GWOT from the perspective or with the depth of knowledge as has the soon to be Justice Miers. The Counsel to the President has seen it all, and knows what the President knows, the Secretaries of State and Defense, the Joint Chiefs and the Attorney General.

I suspect that the President thinks first and foremost about the GWOT each morning, and that this choice for SCOTUS brings to that bench another Article II inclined justice with the sort of experience that no one inside the Court will have.

If there is another opening, we will get the Attorney General, and for the first time in I don’t know how long, there will be a block of Article II enthusiasts within the preserve of Article III. If we get two more, a Justice Luttig or McConnell will rise.

The president is a poker player in a long game. He’s decided to take a sure win with a good sized pot. I trust him. So should his supporters.

UPDATE: Hinderaker calls me “ever-optimistic.” I’m not, and there were some people on the short list that would have trobled me greatly.

Rather, I teach Con Law and served in the White House Counsel’s office as well as other posts in the Executive Branch. This isn’t a Souter nomination, and it has very little Blackmun risk –bringing in a judge from the far reaches of the country only to have them seduced into “growing” in office. Harriet Miers has been in D.C. for every day of the nearly five years of the Bush presidency. Wake up people: Do you really think W is going to elevate a friend who doesn’t agree with him on the crucial issues of the day just because she’s a friend? Bush-haters like Sullivan will smoke that pipe, but no serious analyst of his judicial nominations.

Bush’s picks for the Bench have been stellar, and his support for them unwavering. Conservative critics of Miers are disappointed they didn’t get Luttig or McConnell, but many of them were also disappointed with Roberts. Meanwhile many folks who actually know the nominee are enthusiastic.

The Miers nomination is turning into a Rorschach test dividing conservatives into the camp that understands governing for the long term and those that are so emotionally fragile or contingent in their allegiance that anything they (1)don’t understand or (2) disappoints in any way becomes an occasion for panic and declarations of irreparable injury.

I also note that the hand-wringers act as though a Republican president is an accident, and that there won’t be any more Bush picks, nor any more Republican presidents. Keep up the carping and we might again see the Dems get close to an unbreakable filibuster margin in the Senate.

Memo to the White House folks: It might be a good time to nominate Roberts’ replacement on the D.C. Circuit, and to do so with a nominee that even the hair trigger critics of the what-have-you-done-for-me-lately caucus understand.

UPDATE 2:


Carol Platt Liebau
–formerly of the Harvard Law Review and Capitol Hill– writes:

I think perhaps some of the criticism that is emanating from some D.C. conservatives is not only frustration with an opportunity wasted, but may also be a function of the fact that she is not a member of the Harvard/Yale/Supreme Court clerk/elite D.C. legal insider axis.

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