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Wednesday, October 18, 2006

The Good Prof. Bainbridge and the next Harriet Miers

I'm surprised that, to my knowledge, October 3 has gone unacknowledged in the legal blogosphere.  On that day President Bush nominated Harriet Miers for the Supreme Court.  The day is worth remembering for a variety of reasons, but one important one is that as a result of her nomination, law blogs took their exposure and importance to a new level.  If you look at law blog traffic, you may have noticed a sharp spike during October 2005.  From October 3 through October 27, Miers kept the blawgs humming.  And I think it's fair to say that blawgs played a critical role in her withdrawal.

This is a long introduction to the news that the good Professor Bainbridge has taken his site under wraps and is retooling for a new "brand."  As he says:

After three years of blogging, it's time to do a major rethink. With the blogging "market" increasingly crowded, the model of an eclectic, general interest blog is a less viable one. Perhaps more importantly, I'm just getting tired of the punditry style of blogging. . . . [A]s far as day-to-day blogging goes, I've pretty much decided to rebrand ProfessorBainbridge.com by repositioning it as what it started out to be; namely, a niche blog focused on business law and economics.

Gordon Smith and Larry Ribstein commend the move, and as a corporate law scholar, I appreciate the new focus of his energies.  But I do wonder -- what will happen when the next Harriet Miers comes along?

Professor Bainbridge -- the blog and the man -- were on the forefront in criticizing the Harriet Miers nomination.  In fact, in reading his blog and the responses to it during that time, I would say he was of material importance in making the conservative case against her.  It's impossible to say whether her nomination have gone forward without him.  But he was a strong, respected, and demonstrably conservative voice that would accept nothing less than her withdrawal.

The good professor has seemed somewhat demoralized with the Republican and Democratic parties, and perhaps that has led in part to the narrowing of his mission.  But his overhaul does mean that one of the crossover voices in the blawgosphere will go silent.  And I wonder -- when the next Harriet Miers comes along, will he be able to ignore the issue?  If so, the legal blogosphere has just lost some of its muscle.

Posted by Matt Bodie on October 18, 2006 at 12:56 PM in Blogging | Permalink


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Thanks for the response. I appreciate the gloss on the dynamics of the blogging that led to Miers' defeat. Joe Lieberman is a continuing disaster for the Democratic party, this is true. I think you are using a false metric on Lamont's primary victory though. You're comparing a Presidential election with a Democratic primary...in a non-Presidential year. "Turnout topped 40 percent, breaking the state's 36-year-old record for a non-presidential year despite predictions that turnout would be low because the primary was held in the middle of vacation season." http://www.boston.com/news/nation/articles/2006/08/09/lamont_defeats_lieberman/

Also, why did Kerry get 800k? Well, its the flipside of why the Civil War has the dubious distinction of being the war in which more Americans died than in any other conflict. Why? Because everyone who died was American. Everyone voting in the primary was a Democrat. It's unbelievable that Lamont got a sixth of Kerry's votes.

Yes, we know that Lieberman, by virtue of skillful exploitation of the inertia caused by his colleagues fears of him winning and flipping, the lack of a credible Republican opponent, and a novice opponent, will probably win in a few weeks. But Lamont's victory in the primary is a remarkable demonstration of people power and it has permanently changed the dynamics of Democratic party politics. (And will probably be emulated by a number of Republicans next cycle as they try to readjust to the loss of the House.) Primaries can no longer be taken for granted. The desires of constituents cannot be taken for granted. In that respect, it is a great analogy for Miers. Bush thought conservatives would have to lay back and take the Miers nomination, but they proved that they have power. Lieberman thought he could act against his constituents interests, but they proved they have power too. He may win, he may flip and keep the Senate Republican, but he's on the wrong side of a fundamental realignment. I look forward to your thoughts.

Posted by: Bart Motes | Oct 19, 2006 12:15:47 PM

Is Ned Lamont really discovering at "humiliating cost" that blogs have no power? It seems like they had the power to propel a completely unknown contender to victory over an 18 year incumbent in a primary.Why, yes, Bart. Yes he is. Is it really demonstrative of the "power" of blogs that they managed to spend a vast amount of time and effort to piss up the leg of a guy on which control of the Senate may actually turn? Any member of the crew can scuttle the ship, Bart, but that doesn't make them powerful. It just makes them stupid if they choose to do it. And in any event - some hole in the hull! For all the hullabaloo, Lamont won 144,336 votes, and that was the high watermark of his campaign. 144,336! John Kerry managed 857,488 votes in Connecticut two years ago, and the nutroots think managing a sixth of that total is a victory?

On the other hand, I'd agree with you that it was the legal blogs that relly did the heavy lifting on Miers, particular in showing just how woefully underqualified she was, but this wasn't a nomination that was sunk on shame alone, and there simply aren't enough conservative legal blogs to create the critical mass needed to defeat the nomination. Even if the legal blogs were doing the steering, it was blogs like ConfirmThem that were the engine room. So it was a perfect storm in some ways - the conservative bloggers alone wouldn't have done it if Miers was an exemplary nominee, but the legal bloggers were able to give real force to the roar or disapproval.

Posted by: Simon | Oct 19, 2006 11:35:29 AM


Is Ned Lamont really discovering at "humiliating cost" that blogs have no power? It seems like they had the power to propel a completely unknown contender to victory over an 18 year incumbent in a primary, something that has only been done once in the past thirty years. If the Republicans had a decent candidate in the race, the race would be over and Lamont would the next Senator from Conn. (And its not over yet.) That seems like a lot of power. I'm not sure if I agree with the thesis that it was (generally, as opposed to specifically legal) conservative blogs that led to Miers downfall. Sure, that collapsed a flank of her support, but it was the attack on her credentials that ended her nomination and made her a laughingstock. So it was the law part (my god, I almost wrote prong) of the conservative law prof blogging that did in Miers. The conservative part just gave them the optics to avoid dismissal of their criticisms as biased.

Posted by: Bart Motes | Oct 19, 2006 10:16:34 AM

Something else to consider: if it wasn't blogs that drove the collapse of the Miers nomination, what did? Pace Ethan et al, it takes a theory to beat a theory. If you think that the constant drumbeat from the blogs didn't scuttle the Miers nomination, you have to come up with some alternative explanation for why it failed. And in reality, there was not any real hostility among the opposition, to the extent there was hostility in the conservative press it built very slowly in response to the blogosphere, and to the extent that the mainstream media noted any opposition to Miers, it was in the context of "look what those crazy Republicans are doing now! They're trying to Bork their own Presidents nominee! Crazy!" There was not even any serious opposition from the Senate Republicans (indeed, the only Senator who was even have alleged to have been fighting back is Kyl -- but he denies it, which is a shame, because I'd have made a hefty campaign contribution if he had come out and said "this nomination is a disgrace and I'm going to vote against it"), most of whom were content to wait until Miers wilted under the lights of a hearing.

The people who were angry with the Miers nomination were not the establishment, and the people who advanced the most eloquent criticisms weren't the kind of folks who were going to drop everything and march on D.C. to demand a do-over. The opposition crystalized and gathered force among people who had no outlet other than blogs. Take away the blogs, and the same people might have been just as angry (or possibly not, given that blogs stepped up to the plate and provided the raw evidence to people who otherwise would not have had it, a prospect which only amplifies the role of blogs), but they wouldn't have had the tools to fight back.

Posted by: Simon | Oct 19, 2006 9:55:46 AM

Is this a "yes it is/no it isn't" question, or is there any evidence of the effect that blogs had on the process?

Have you talked to people who worked in the White House or Capitol Hill during the nomination? They were all following the conservative blogs incredibly closely, monitoring them every few hours to see which way they were swaying. Blogs became the common meeting point, and the views of the bloggers really mattered.

Posted by: zxy | Oct 19, 2006 2:13:21 AM

BlogSkeptic - while I agree that the "power" of blogs - legal and otherwise - can (and usually is) gross overstated, as Ned Lamont is now discovering at humiliating cost in Connecticut, I would say with almost complete confidence that, without the immediate and growing wave of revulsion in the conservative blogosphere, Harriet Miers would be sitting on the Supreme Court today. At a very minimum, blogs provided a roar of dissent that would otherwise have been missing, and was previously missing in the Bork and Thomas hearings. The commenters at sites like ConfirmThem cut the pro-Miers arguments - so far as any existed - to ribbons, and did so over and over again, in full view of the world. There were other factors involved -- the undisguised joy of Democrats, for example, or Bork's memorable op/ed condemning Miers as a disaster, or the sterling work by Paul Weyrich -- but if you go back and read what John Fund et al were writing, and if you watch the editions of the Journal Editorial Report, I think it becomes very clear that this was a case where the powerful followed the people, and they did so because they could see as plainly as anyone else that the Miers nomination failed in cyberspace. It failed because the very people who would normally cheerlead for the President told him, quite frankly, to get lost, that he had to be kidding, and that he needed to try again. And even if the same people might have said the same things in a pre-blog world, that voice was only given expression through blogs. Miers is the third legitimate blogosphere scalping, and the first genuinely important contribution of blogs to American history. In the long run, Dan Rather doesn't matter, and Trent Lott doesn't matter, but Sam Alito being on the court instead of that Miers does matter and will matter, for decades to come.

Posted by: Simon | Oct 18, 2006 9:20:50 PM

A welcome development! It is very much akin to Brian Leiter's decision to separate his law-school-gossip posts from his general political posts. Now folks like me can get the latest skinny on academic hires without having to wade through his rants.

If only others would follow suit. The delay among conservatives is particularly disconcerting -- shouldn't they be the first to remember the theory of comparative advantage?

Posted by: Adam | Oct 18, 2006 4:02:59 PM

This is one thing I don't get. Every conservative blog with any traffic pats itself on the back as having been "instrumental" or "important" in the defeat of Harriet Miers, as if their blogs hosted all of the important substantive discourse, which I suggest isn't true.

My recollection is that the only purpose that these blogs served was to speed up the news cycle and to ensure that the best arguments against her nomination (which were mostly posted in MSM outlets -- see, e.g., pretty much everything John Fund wrote for the Wall Street Journal during that time) circulated quickly. Within an hour of Fund's stuff appearing on the WSJ site, the conservative blogs would basically shoot it around the blogosphere with the usual "this is a must read" or "John Fund has a very important piece that everyone who cares about judicial independence must read" or something similar. In other words, the blogs served their usual aggregating function.

While I have lots of respect for Professor Bainbridge, and I concede that his posts are more substantive than Instapundit, I doubt that the substance of his blog posts had much effect on the nomination.

Is this a "yes it is/no it isn't" question, or is there any evidence of the effect that blogs had on the process? I don't recall seeing Lindsey Graham on the Senate floor pounding the table and saying "I was on Southern Appeal this morning, and I think QD said something very important that I'd like to read into the record."

As much as bloggers seem to love to pat each other on the back, I don't think it's warranted here.

Posted by: blog skeptic | Oct 18, 2006 2:38:21 PM

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