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The Big Sulk

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If you live in Orange County, California, and in the 48th Congressional District be sure to vote for John Campbell in today’s special election to fill the seat of the off to the SEC Chris Cox. Then, when John racks up a big win, see if the MSM reports on the result the way it obsessed on anti-Bush candidate Paul Hackett who lost a special in Ohio’s 2nd District.

Sometime today this blog will pass 20,000,000 visitors. I’d like to thank MSM for making my job easy by refusing to reform its thorough going bias against the center-right. New media would not have risen so quickly had old media been anything except left-wing and arrogant, not to mention incredibly sloppy.

The nomination of Harriet Miers continues to upset some of the conservatives, producing in them a DailyKos-like refusal to confront arguments in favor of the nomination. The ordinarily reliable Ramesh Ponnuru, for example, mocks Douglas Kmiec’s defense of the Miers nomination in the Washington Post. The central point of scholar Kmiec’s piece:

[Roberts and Miers] are both steadfast adherents to a judicial ethic of no personally imposed points of view. The cognoscenti snicker when the president reaffirms his criterion of judges who will shun legislating from the bench, since to legal realists, it is inconceivable and to political ideologues it is a missed opportunity. They all do, they all will, goes the refrain. To which Roberts repeatedly answered: No, not this umpire. The same answer can be expected from Miers as she makes her bid to join the officiating crew.

The Ramesh non-response:

[Kmeic] has written a defense of Miers for the Washington Post. I assume he’s doing the best he can with what he’s got to work with. So she doesn’t know much about constitutional law: That’s okay, because she has the “capability to master it.” (I guess she’ll cram.) Her support of the ABA’s role in screening nominees is proof of her independence of mind! “A former at-large member of the Dallas City Council, she has a sense of accountability at the grass-roots level.” These are reassurances that do not reassure.

The refusal of Ponnuru to engage Kmiek’s central argument about ther nature of the battle between results-oriented conservatives and the Roberts-Miers approach doesn’t decide the merits of Kmiec’s argument, but it does reveal that some of the critics of Miers aren’t prepared to answer the charge that their criticism is more disappointment that their own preferred nominee was not selected than serious argument that Miers is a Souter of some sort. Charges of shilling and boosterism are the ordinary response of the Bush-haters when confronting careful and documented arguments in support of this or that Bush policy. The center-right blogosphere is best served if it stays far away from that cliff where mockery substitutes for argument.

When the critics of Miers get over their disappointment, they will want to read President Aristotle’s useful post. Then there is Dave Kopel’s excellent research on the nominee’s view of the Second Amendment. Then there is James Dobson on my program yesterday:

But on judicial appointments, this man staked out his territory in his claim in the campaign. And he has not wavered from it one inch. It’s also true of his pro-life stance. He has been absolutely consistent with what he promised to do in his campaign. I applaud him for that, and he knows Harriet Miers as well as anybody in government. He has worked with her for years. He knows who she is. I do not believe that man is going to put somebody on that Court that thirty years from now, is going to represent his legacy, and he’s going to be blamed for fooling the American people. I just do not believe that.

Randy Barnett trots out the charge of cronyism, and dresses it up with some block quotes from Federalist. Barnett’s big conclusion:

To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered “judicial philosophy,” by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate…

Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time….

Given her lack of experience, does anyone doubt that Ms. Miers’s only qualification to be a Supreme Court justice is her close connection to the president? Would the president have ever picked her if she had not been his lawyer, his close confidante, and his adviser?

Professor Barnett’s argument is odd indeed given that it boils down to a demand that only sitting judges or law professors need apply for the SCOTUS, a not surprising demand from a member of the Guild, but not one consistent with the actual text of the Constitution or any specific writing on the subject. His abuse of the Federalist 76 quote is also bold. The professor emphasizes a Hamiltonian phrase that cautions generally against nominees –for all posts, not just the SCOTUS– who are:

candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.” (The italics are mine.)

How would Barnett have opined at the nomination of Marshall by Adams? Either by condemning that nomination, or by reference to Marshall’s other experiences in addition to his friendship with Adams. Surely he wouldn’t condemn the appointment of the greatest Chief Justice in SCOTUS history, so he would have to open the door to some nominees who are “personally allied” to a president.

So we are back to Miers’ resume, and it is a very strong one indeed, though not my favorite in the pile. We are also back to the president’s record on judicial nominees, to the enormous value of having been a senior Executive Branch appointee in a time of intense partisanship, to the enormous value of adding to the SCOTUS a member who has been in the wartime White House from day one of the war’s declaration on us, of the value of a SCOTUS member who has actually stood for election, managed a law firm and a state bar association, and actually drawn up a contract and tried a case –qualities of little value to faculty appointments committees, but of potential great value on SCOTUS.

Conservative opposition or contingent approval was reflexive, and disappointing. Because they did not know her, they assumed she could not be worth supporting. The cronyism of the chattering class seems to have triumphed over any kind of analysis or credit-according the sort of experiences that ordinary Americans value.

I hope the disappointed right will get over its sulk quickly as the fight over Miers is going to get very ugly very quickly as both the secular left and the anti-religious left realize that the president has nominated a thorough-going Evangelical of character and tough disposition. The light is going to go off over there that the president’s eyebrows went up when Harry Reid scribbled Miers’ name on the Minority Leader’s list of acceptable nominees.

Taking the ball and going home because the nominee doesn’t know you by your first name is hardly principle at work, and the refusal to see what she brings to the table isn’t argument. It is entertaining, and also a sort of wish for a return to the days of old when the president was a Democrat and brick throwing made life as a pundit easy.


An e-mail of great insight:

Miers was, I am sure, involved in many discussions about what it was that W wanted in a nominee. She knows that he wants an Originialist, that he wants someone in the mold of Scalia and Thomas. She also knows that the court is his legacy.

As a woman of faith and obvious integrity, do people honestly believe you would accept the nomination while knowing in her heart that she would shatter all of her president’s plans?

I doubt it. If she was going to be a Souter, don’t people realize that if she had any integrity she would say, “Thank you Mr. President, but I am not what you are looking for.”

As I recall, Bush 1 made the mistake of picking someone else’s compadre, not his own. W knows what he is doing.

Bart B___, MD

See also The American Thinker, which is simply brilliant. By day’s end there will be great and spreading fear on the left, and perhaps some genuine remorse among the shoot first and think later right.

UPDATE 2: Ramesh answers Kmeic, sort of, but is mad that I suggested it was wrong not to do so in the first place but to belittle Kmiec instead.

As for the substance, it isn’t merely “an assertion” when Miers ran the process that selected Roberts in the first place. It is instead a fair assumption that Miers pushed Roberts because she agrees with his philosophy of judging. Kmiec also provides a quote on approach to end the piece. I would much rather have the fact of the Roberts nomination than a fine speech to a group of editorialists as evidence of what someone approves of when it comes to judging the judicial philosophy embraces.

Kmiec also makes secondary arguments, none of which were answered by the first Ramesh response or the second for that matter, including for example the qualification of managing a 400 person law firm (I didn’t think it was that large) –a credential of significant weight if you know what that entails. Perhaps Ramesh does know what that entails, but doesn’t want to remark on it, or perhaps he doesn’t. All I know is that he didn’t respond to it. Not many of the angry pundits and academic critics have, but angry pundits and academics tend not to run large organizations with huge support staffs, which doesn’t make them bad people, simply ill equipped to judge the quality of a credential. Standing alone, no it doesn’t qualify someone for SCOTUS, combined with other credentials, it has significant weight. This isn’t something that “optimists” or “party men” see. It is something that practicing lawyers see. (I will find it interesting to see whether her firm was the subject of any suits while she was a partner, especially the managing partner. Especially if the suits were of the sort that plague business in this day and age.)

Thus far my amusement with the originalist objection is that the Framers certainly did not intend the SCOTUS to be manned exclusively by appelate judges or law professors. True, there were no federal appellate judges when the experiment got under way, but had the Framers wanted judging experience as a qualification, they could easily have insisted upon it. They didn’t, thus leaving open the door to John Marshall who had not a day on the Bench when he stepped up to the Chief’s slot, and many others through the years.

Either you are an originalist or you aren’t. If you are, you can’t be arguing that Miers “isn’t qualified.”

There are many other posts from my friends on the Right that are greatly upset with my take on this and my refusal to tear out my eyes and not see the strengths of a nomination just because it wasn’t my first or second choice. I suspect they’ll come around eventually. They are smart people and well intentioned, and firm supporters of the president. On this matter, they are just wrong. There’s a big difference between wrong and rotten.

Apologies to Ramesh Ponnuru for adding an “M” to his name. I have corrected the spelling int he post above.


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