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“Not One of Us” and the Politics of the Miers Vote for Senators

Wednesday, October 26, 2005  |  posted by Hugh Hewitt
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In a lengthy Wall Street Journal story this morning on Federalist Society executive director Leonard Leo’s support for Harriett Miers, there is a featured quote from the Cato Institute’s Roger Pilon:

“This woman has demonstrated almost nothing that would indicate she is either one of us or up to the job.” (Emphasis added.)

From an e-mail this morning:

The President promised “a judge in the mold of Scalia and Thomas.” Do they forget the row about Thomas? How he was un- or under-qualified, a diversity pick, how no one really believed he was “the best person for the job,” how a personal story of character was not the proper qualification to SCOTUS? The first 2 or 3 years Thomas was on the court, he was accused of not having his own mind, only was there to copy Scalia. But eventually Thomas emerged as a champion of the conservative cause.

The difference between conservative legal elites’ support for Justice Thomas and their split over Miers is that Justice Thomas was indeed “one of us” in their eyes, meaning one of the Capitol’s regulars at roundtables and seminars and receptions prior to his elevation to the D.C. Circuit. Justice Thomas had many personal friends who went to the mat for him against the onslaught in 1991.

Miers has been in D.C. for nearly five years, but is clearly not a “joiner,” and has clearly been working very long hours at the White House. The “not one of us” argument is the most candid admission yet of one the most powerful motives at work in the anti-Miers camp. This is not to say that critics of Miers aren’t sincere. They are. But Pilon’s admission against interest may explain the ferociousness of the assault from normally reserved and jovial academics. When Bacchus takes up the dagger, something strange is going on.

The echo-chamber effect that plagued the Michael Moore Democrats last year may now be at work among conservative intellectuals who think they are seeing a rising, when in fact they are witnessing the equivalent of a cyber faculty meeting meltdown over a tenure decision, on steroids.

What do the GOP senators who have the votes see?

I began surveying hometown papers of Judiciary Committee senators today, and found this interesting article in the Des Moines Register from October 6. In it, Senator Grassley made these comments:

“Maybe everybody ought to just cool it,” the Republican said. “We have a constitutional process that will answer a lot of these questions.”

The article also notes:

Grassley said some of his initial worries were soothed by a one-on-one, 45-minute meeting he held with Miers on Tuesday afternoon that “went very well.” He said, though, that the meeting won’t have as much bearing as the hearings.

This on-the-record assessment contrasts with the anonymous slagging of Miers’ welcome in the private meetings that has become an article of faith in the anti-Miers camp.

The paper also reported:

Paula Dierenfeld, a Republican activist and lawyer from Des Moines, said Miers has been “a real trailblazer” in her profession. “She’s a true role model for women in any male-dominated profession but in particular the practice of law,” Dierenfeld said. “I think the president again has selected the person most qualified for the position.”

Both Dierenfeld and Steve Roberts, a member of the Republican National Committee from Iowa, said they have heard no criticism of Miers from Iowa conservatives.

Christine Stineman of Progress for America said Iowa members of the group, because of their “unique position” living in the state with the first-in-the-nation presidential caucuses, will be pressing Republican senators who visit Iowa to state their positions on Miers.

“We’ll be communicating with letters and e-mails and talking with folks as they come in the state,” she said.

My guess is that the phones aren’t burning up in the way that they exploded when Dems tried to suppress the votes of the military overseas in the Florida Fiasco of 2000, or in the aftermath of the Gang of 14’s deal in the spring. If it was otherwise, there would be many visible signs.

One of the advantages of being a talk radio host is that I do travel to my markets and I do meet with audiences, and I get to ask them questions. I am a frequent visitor to various GOP grassroots organizations, from the gatherings of the classic “blue haired ladies,” to a Tech Coast professional womens’ club, to various fundraisers for candidates. I don’t just talk about the base, I meet with the base. A lot. As do GOP senators on the Judiciary Committee.

There is no upside for a GOP senator to break with the president over Miers, but considerable risk. And not just risk to that senator’s standing with the loyal Republican activist of years or even decades of service, but also to the Senate majority.

How important is that majority to senators?

Senator Grassley, you may recall, was one of the Committee Chairmen who lost their posts when Jim Jeffords did his big bounce in May, 2001. Senator Specter is just begun on what he hopes will be a six year run as Chair of Judiciary. Even the junior senators on Judiciary will be hearing from their caucus colleagues on the dangers to the majority of a botched hearing.

Maryland’s Lt. Gov. Michael Steele declared yesterday for the seat being vacated by Senator Sarbanes. Will it help or hurt this dynamic candidate who has a chance to become the GOP’s first African American senator since Brook of Massachusetts if the Judiciary Committee’s GOP members pummel Miers over the Texas Bar Association’s policy of encouraging minority recruitment? Will such a verbal blast help Ohio’s Ken Blackwell, the African American candidate for the Buckeye State’s governorship?

In Minnesota, where Mark Kennedy has a shot at the open seat of retiring Mark Dayton and where pro-life sentiment cuts across party lines as it does in Pennsylvania where Senator Santorum faces an uphill battle against a self-declared pro-life Bob Casey, Jr., will it help either man for Republican senators to reject a nominee who has supported the Human Life Amendment and battled the ABA over the issue?

Over at In The Agora, Paul Musgrave replied to my “public choice” argument, and suggested I used the wrong unit of analysis. Musgrave provides some excellent pointers to background on public choice theory, and here’s a one paragraph intro:

Public choice takes the same principles that economists use to analyze people’s actions in the marketplace and applies them to people’s actions in collective decision making. Economists who study behavior in the private marketplace assume that people are motivated mainly by self-interest. Although most people base some of their actions on their concern for others, the dominant motive in people’s actions in the marketplace'”whether they are employers, employees, or consumers'”is a concern for themselves. Public choice economists make the same assumption'”that although people acting in the political marketplace have some concern for others, their main motive, whether they are voters, politicians, lobbyists, or bureaucrats, is self-interest. In Buchanan’s words the theory “replaces… romantic and illusory… notions about the workings of governments [with]… notions that embody more skepticism.” (emphasis added.)

I think Professor Musgrave’s analysis almost entirely misstates a senator’s perspective on the matter before them.

There is no large scale revolt in the base, although there is a lot of noise from commentators. The somewhat desperate looking attempt to get a new “grassroots” campaign going tells me that no established and powerful group is willing to take the internet lead. (Thus splitting their own donor base?) Some internet sites are opposing Miers, some are supporting her. Some legal heavyweights are critical. Some legal heavyweights are supportive. Crucially, the president isn’t wavering an inch. Senate offices know revolts when they happen, as do talk show hosts. This is a great issue for talk radio because there are passionate, passionate people on both sides.

But the public hasn’t risen up and demanded the Senate act to defeat Miers, and the very good chance is that if that hasn’t happened yet, it isn’t going to happen at all.

The upside of voting against Miers for a senator is so limited as to be almost non-existent in the real world of politics. The promises of glorious battles with the Dems and the break-up of the Gang of 14 means to them shattering their comfortable worlds and opening themselves up again to the enormous pressures that built throughout the spring. To those who, like Senators Graham and DeWine, took the most heat for the Gang of 14 deal, or like Senators Chafee and Snowe, facing re-election with restive conservative bases, or even stalwart Jon Kyl, facing a deep pockets opponent in Arizona, smashing up the president nominee just doesn’t figure to be a good move. Try explaining to the Arizona Pro-life Network why Miers wasn’t good enough.

And then there is the prospective trauma of losing, again as in 2001, the majority from which all their influence over legislation and hearings flow. To approve Miers is to shift the responsibility for the choice squarely on to the president –where it belongs, by the way– and to protect themselves and their colleagues from voter backlash. It is to defuse many potentially potent arguments of Democratic opponents –there obviously was no litmus test, there is a woman to replace a woman, not a second white male, there is such a thing as “affirmative action” that does not offend the Constitution and which is reconcilable with adamant opposition to Grutter-like race weighting by state actors in the admissions process.

Or they can risk the wrath of the Cato Institute and the “not one of us” caucus.

Finally, the anti-Miers crowd lacks a Senate champion, and finding one is their greatest obstacle, and one that will only get harder.

They are looking for Senator Brownback or Senator Allen, but both senators are looking at the 2008 primaries, and both must know that the defeat of the Miers’ nomination will be a lasting scar laid at the Senate’s feet if it happens. When you run for president, you want to run for something, not away from something. You imagine not just the questions you will be asked over and over again, and the answer you will have to give over and over again. You try very hard to control variables, and worry constantly about raising money –not a little of it from lawyers far outside of the Beltway, btw, who had always thought themselves qualified to be judge or a justice if only they’d had a little more time. You have an answer for voting for Miers: “The GOP has always believed that absent a character flaw, the president gets his nominees and to vote against Miers is to surrender the process we are trying to fix to the special interest groups of the left’s agenda and tactics demand for ideological answers from nominees.” Your answer for voting against: “I just couldn’t bring myself to trust the president’s judgment on this one, and I didn’t foresee what would happen next.”

True, they will earn praise from some activists, essayists and bloggers. But many of those new friends with blogs were friends of the president until he disappointed them. You don’t get elected to the Senate by banking on the loyalty and support of opinion makers who are in the process of displaying their willingness to turn on a dime and compare the president’s nominee to Caligula’s horse.

There are a lot of issues on which to run for president. I don’t think a successful GOP campaign has ever been launched on the idea of defeating the incumbent president on a crucial issue.

It will be a very interesting few weeks.

UPDATE: 10:50 AM, Pacific

I have reproduced the Texas ABA Resolution that has upset so many anti-Miers commentators. It wasn’t available on-line, so here it is. Please note that although the language is the same, the formatting of this document is not the same as the original.

RESOLUTION OF THE STATE BAR OF TEXAS
REGARDING STATEMENT OF GOALS
OF HOUSTON LAW FIRMS AND CORPORATE
LEGAL DEPARTMENTS FOR INCREASING
MINORITY HIRING, RETENTION AND PROMOTION

WHEREAS, according to the National Law Journal, minorities comprise only 2.4 percent of partners and 6.8 percent of associates at the 250 largest law firms in the United States; and

WHEREAS, minorities comprise only 2.1 percent of the partners and 4.8 percent of the associates of the 18 largest law firms in Texas, and

WHEREAS, the Hispanic Bar Association has promulgated and unanimously adopted the attached ‘Statement of Goals of Houston Law Firms and Corporate Legal Departments for Increasing Minority Hiring, Retention and Promotion’

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