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Monday, October 03, 2005


So it's Harriet Miers for Justice O'Connor's seat.  Here's the basic story in the Times.  The early returns on the blogosphere are not great -- she doesn't thrill the right and doesn't impress the left, nor the center.  Larry Solum, who has been far from left-leaning on appointments issues, cuttingly and without comment excerpts Federalist No. 76.  But it's early yet, there's not much knowledge or consensus about Miers at this point, and the narratives have yet to emerge.

My own thoughts?  They are decidedly preliminary.  She strikes me as accomplished but undistinguished; presumptively competent but nothing more.  That she is something of a Bush crony does not strike me as in any way disqualifying; Frankfurter and Jackson each served FDR before taking their seats on the Court (although Jackson had more public experience with constitutional law issues), and both were distinguished jurists.  The question is how distinguished she was when Bush brought her to the White House, and how clearly she has distinguished herself, and gained relevant experience, while in that position.  In short, she does not strike me as utterly out of the ballpark; neither does she strike me as having been in any way clearly in the on-deck circle.  Certainly there were more distinguished candidates available.  Perhaps, if we are not going to actively strive to pick the "most qualified person," we can abandon the rhetoric that accompanies most nominations that pretends otherwise.

Strategically, if I were advising the Democrats, I would muzzle any interest group that focuses on abortion and other hot-button constitutional issues.  I would instead focus hard on the crony angle (ie., yet another Michael Brown) and on her undistinguished status: is this the best we can do?  Substantively, the only issue worth hitting with her would be the idea that she will ignore her responsibilities as a member of the Third Branch and simply cave to the Executive Branch.  Conversely, were I advising the GOP, I would remind everyone that a fair number of folks who never served on the bench rendered yeoman service on the Court (ie., Powell, although he may not be the right's favorite pick; the administration will be fighting a two-front war here).  I would focus on some of her "firsts" as a woman lawyer.  And to those who complain about her inexperience as a judge, I would point out that a substantial number of commentators just got through urging the President to appoint someone with experience in the legislative or executive branches.

These are, as I say, preliminary thoughts: she is not an outrage but she is also not an especially worthy nominee.  She will not be an utterly easy confirmation, although for reasons entirely different from those that would have applied had the President nominated a brilliant but clearly conservative jurist.  I'll weigh in again (and again, and again...) as I receive and absorb more information.   

Posted by Paul Horwitz on October 3, 2005 at 11:19 AM in Constitutional thoughts | Permalink


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So, the nominee is Harriet Miers, who is without a doubt very qualified--just not for this job. As so often is the case, my views parallel Legal Fiction: I'll listen to what she has to say--but this sounds remarkably like a judicial version of Michae... [Read More]

Tracked on Oct 3, 2005 6:09:49 PM


Prof. Bainbridge has an interesting take on the nomination. The anger on the right is deepening and broadening.

Posted by: Simon | Oct 4, 2005 4:16:30 PM

Thusfar, the only people who are pleased seem to be Hugh Hewitt and Harry Reid.

I don't want to rush to conclusions, but this is hardly the stuff that legends are made of, and it just seems that with a talented pool of potential candidates, Bush made an underwhelming pick. Maybe I'm just sore that it wasn't Alito, but in any instance, my thoughts can be found here.

Posted by: Simon | Oct 4, 2005 12:31:25 AM

I think focusing on her lack of qualifications could backfire on the Dems. The majority of the country did not, after all, graduate from Harvard or Yale, and many people already associate the Dems with Kerry-style aloofness and elitism.

The more interesting possibility is that this pick could crumble the Republican party along its own inner faultlines. Conservative commentators aren't even bothering to disguise their displeasure with this pick, and this is only day one (look at Kristol's "distressed, depressed, demoralized" piece). I think that these conservatives, even if the nomination goes through, will likely conclude that Bush made this pick out of weakness, and this will eradicate the already-eroding power that the administration has over Congress. The attention of Republicans will, after the nomination, focus mainly on the 2006 mid-terms and figuring out who their 2008 candidate will be. Social security reform, flat taxes, and any other type of conservative proposal will not fly.

In light of this, the best response by the left would be an uncannily tricky one: to generally come out in support of Miers. This would embolden conservatives who would then feel justified in rebelling against this pick as "another Souter." Of course, I won't hold my breath that the left is capable of such crafty, well-organized maneuvering.

Even if the Dems don't want to engage in this type of strategery, I think it'd still be better to hold our fire on this one. It doesn't look like she's all that conservative, and it will be hard to score points with the broader, nonidelogical public on this one. Even the cronyism issue isn't that compelling; every president nominates their trusted friends to important positions (I mean, hello? Hillary ran the universal health care push despite having no prior experience in the matter ... and failed miserably, I might add). The Dems have larger, more attractive targets: Iraq, Katrina, and the defecit. Adding extra issues risks diluting the clarity of the Dems' central message. And this lack of a real compelling message has been the Dems' problem in the last 20 years.

Posted by: Jeff V. | Oct 3, 2005 9:54:25 PM

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