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Monday, October 03, 2005

Hmmm, let me just save on search costs

I wonder if Bush's decision to nominate Harriett Miers to the SCOTUS seat left by SOC can be explained most parsimoniously by a desire to reduce transaction costs...sort of the way Dick Cheney became VPOTUS.   Already, the reaction is sinking in: who is she? and why on earth?  The folks over at TVC are also not rallying around the wagon here, which should tip off moderates and liberals that this might be an easier, though perhaps self-defeating, battle. 

Orin Kerr describes himself as "puzzled" by the nomination, describing her as "the anti-Roberts," adding that Miers has

no particular experience or expertise in any areas of law that the Supreme Court is likely to consider in the next twenty years; she has no history of having thought deeply about the role of judges in a constitutional democracy; and she is a complete unknown among the parts of the DC legal community that will now be considering her candidacy for the Supreme Court.

Todd Zywicki takes a different tack, and he agrees with David Frum (Miers is an "unforced error") on the question of whether Miers will be a reliable conservative.   He also is willing to call Miers' selection plain ol' cronyism.

If Frum, Zywicki and Orin Kerr are all right, Democratic senators are now faced with a conundrum: should they oppose Miers because she's the anti-Roberts on traditional qualifications, or should they bet on Frum's worry, and think that Miers will become a Souter, or just worse, a Kennedy? 

If they're inclined to take the latter move, I would urge caution.  For one thing, it may be that conservatives like Frum are voicing opposition for spin purposes.  But even taking them at face value, the conservatives' fear of unreliability in Miers is not something from which liberals should derive comfort and succor.  Souter and Kennedy were both judges before their nominations and their work product could be assessed even if their ideology was a mite obscured.  All we know about Miers is that she's a lovely person, according to Frum, and a personal lawyer to W.  My guess is that Zywicki's criticism of Bush Cronyism, Part 894, is spot-on.  Even if Miers turns out to be as mushy as SOC, it's not a good reason to support, let alone vigorously endorse, this nomination.  But, as the information pours out over the next few days, I reserve the right to eat crow.  In the meantime, I would think that SOC is going to have a more protracted stay on the court than she prefers, or than would be necessary in an administration run by a President less taken with his sense of Texas-brand loyalism.

Posted by Administrators on October 3, 2005 at 11:15 AM in Current Affairs, Dan Markel, Law and Politics | Permalink


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I know how some folks hate to see inconvenient facts to get in the way of the party line, but anyone who says that Justice Thomas follows the legal rationale or even the opinions of Justice Scalia doesn't know what the hell they are talking about. We've been over and over this. Here's the breakdown on how often the justices vote together from scotusblog:

Souter and Ginsburg 85%

Rehnquist O'Connor 79%

Rehnquist and Kennedy 77%

Stevens and Souter 77%

Ginsburg and Breyer 77%

Stevens and Ginsburg 75%

Scalia and Thomas 73%

O'Connor and Breyer 70%

Souter and Breyer 70%

#7 with a bullet. Justice Thomas is no more a Scalia clone that CJ Rehnquist was a Justice Kennedy clone.

Posted by: MJ | Oct 4, 2005 7:31:50 AM

If Miers has no judicial experience and lacks the intellectual ability to play with the big boys, she will just toe in line with the decisions of Scalia and Roberts. With Thomas following Scalia and Mier's following Roberts and/or Scalia, the right side of the Supreme Court will be unified without the need for minor ideological differences.

The decisions and voting of the court would become more synchronized, much like the mechanization of the Republican party since the contract with America in the 1990s.

I think that's the strategy and, unfortunately, a brilliant one at that.

Posted by: Aaron Wright | Oct 4, 2005 12:26:35 AM

I'm a committed conservative. I gave the President's campaign money, I campaigned for him. I have been actively waiting for fifteen years for the appointment of the justice that would swing the court to the right and away from decisions like Roe, Grutter ect... and toward what I consider the proper role of the court. I was bitterly disappointed this morning by this nomination. By way of a terrible sports analogy, it was like the coach put his kid in to play quarterback in the state championship game while we left an all-state quarterback (Luttig, Alito, McConnell ect...) on the bench. It doesn't mean that the coach's kid isn't a good quarterback; just not the best, most deserving player that could be put on the field. It was totally deflating and felt close to outright betrayal by this president on what for me is a huge issue.

I still feel that way this evening, but it is not as accute. Maybe this is part rationalization, but up until today this president has been outstanding on judges - from a conservative standpoint. I have to give him the benefit of the doubt on Miers. He has sent up nothing but conservative judges. He knows how important this is to conservatives. He has to know Miers very well. She has been someone who helped him sheperd through judges like Pryor,Owens,Sutton ect...

I don't like having to guess about Miers - these stories never seem to have happy endings for republican presidents, and I do think that Miers qualifications are mediocre at best when compared with some of the conservative heavyweights on the federal bench or otherwise in government service or private practice. BUT, on this issue, from a conservative perspective, he has not given a reason to doubt his judgement on who to appoint to the bench and his decision should be given the benefit of the doubt.

I'm not happy about the pick, it's not the pick that conservatives have waited for and it's not the one I would have made, but there's no evidence for conservatives to think that it's a disaster.

It took me all day thinking about this just to get to that point. Not what I was hoping for when I woke up this morning.

Posted by: MJ | Oct 3, 2005 8:29:24 PM

I'll find out.

Posted by: Dan Markel | Oct 3, 2005 1:26:56 PM

Roy: Bush's record of surrounding himself with outstanding people speaks for itself.

As for Miers, I think David Bernstein's analysis from Volokh is spot on: this is going to be another vote for unrestrained executive power.

Posted by: Paul Gowder | Oct 3, 2005 12:07:42 PM

Rick Garnett was quoted in the first AP story this morning praising Miers and her ability to serve on the Court. Any chance we could get him to do a brief return and give further background on his recommendation?

Posted by: Matt Bodie | Oct 3, 2005 11:58:26 AM

Dear Sirs,

Cronyism means the appointment of long standing friends who are NOT qualified. This president has an impressive record of surrounding himself with outstanding people.


Posted by: Roy Lofquist | Oct 3, 2005 11:40:38 AM

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