Wednesday, October 05, 2005


"No more Souters!"

I had planned a lengthy post on why the people claiming the Meiers nomination is a bad one because of “qualifications” or “cronyism” are full of crap. And that goes for the extremists at BOTH ends of the spectrum. Then I found this post by Beldar and decided, what the heck, why write something when I can cut-n-paste something even better than what I had to say…

Prof. Barnett asks: "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?" To which I answer: Absolutely and emphatically, I do indeed doubt that! I challenge that assertion, and I fortunately have something more than sneering innuendo to refute it. By historical American standards, any Supreme Court nominee would be considered qualified based on a successful career in a sophisticated private business law practice — at the head of a large, first-rate law firm in a large city of a large state — that has also included leadership positions in the local, state, and national bar, plus a substantial tenure in public service as counsel to her home state's governor and then the President of the United States. Ms. Miers' overall qualifications compare quite favorably to those Sandra Day O'Connor had when she was nominated. Indeed, her qualifications are very much in the mold of, and quite arguably superior to, those of the late
Justice Lewis F. Powell, Jr., who had led a comparable law firm (Hunton & Williams) to Ms. Miers' and had been President of the American Bar Association (in an era in which it was still an apolitical service organization instead of just another special interest pleader). Only someone uninformed or unfairly dismissive of excellence in the private practice of law could ask a question like Prof. Barnett's, even rhetorically.

But the saddest and most troubling part of the early, reflexive opposition to the Miers nomination is from people who, like Prof. Barnett, are muttering darkly (and necessarily vaguely) that this nomination is comparable to LBJ's nomination of Abe Fortas to become Chief Justice in 1968. The Fortas comparison is badly, badly misleading — a genuine cheap shot. Abe Fortas' nomination to become Chief Justice was doomed if for no reason other than it came at the end of LBJ's term. That he was LBJ's longtime close friend and adviser, however, is not what leaves the lingering smell; many, many other Justices have been close friends of Presidents. Rather, the lingering smell comes from the fact that Abe Fortas had routinely engaged in ethically questionable conduct — including possible financial corruption — that made him unfit to be a judge at any level. He'd sometimes used his undeniable skills and intellect in the service of wicked causes, among them securing Lyndon Johnson's senate election through vote fraud. He'd maintained relationships that involved extra-judicial compensation even while he was an Associate Justice. Unless and until Prof. Barnett is able to make and back up comparable allegations against Harriet Miers, then he owes her an apology for even mentioning her name in the same paragraph with Abe Fortas'. It's an unjustified smear, and it's beneath his dignity (and certainly beneath hers).


Moreover, the classic meaning of "cronyism" is selecting someone for a position that they're incapable of earning and totally unfit for on their own. If all Harriet Miers had to commend her, as Prof. Barnett claims, is that she's been George W. Bush's lawyer, and if we could find no reason in her record, other than Dubya's friendship, even for her to have held that position, then a charge of "cronyism" might be appropriate. But Harriet Miers was already an accomplished and respected lawyer and leader before she ever represented George W. Bush. She's had accomplishments aplenty that are entirely unrelated to him. She well merited, based on demonstrated ability, the positions through which they became better and better acquainted. By every report, she's discharged those positions competently and effectively, rather than just skating by on the basis of the President's favor. Prof. Barnett and the others who are crying "Cronyism!" are using friendship and trust that's developed through superb service with the President as a disqualifying factor, irrespective of the nominee's other credentials and experience. That's a mistake. Alexander Hamilton was not against friendship, he was against incompetence and incompetents being promoted due to friendship. Hamilton himself was both George Washington's friend and his military and then political protégé, the "son Washington never had" and also his most effective cabinet secretary.

It certainly seems to me that Prof. Barnett is using the facts that Ms. Miers comes from a practicing lawyer's background, and that she's become a trusted friend while serving capably as Counsel for the Governor of Texas and the President of the United States, as his sole bases for arguing against her nomination. I believe the nicest term for that is "snotty." It's an unbecoming attitude, and this essay is just not up to his usual high standards of reasoning and writing. There may be persuasive reasons for opposing the Miers nomination, but I don't think these reasons are them.

And as long as I'm shoplifting from Beldar, you need to see
this full post, too:

I think Ms. Miers' nomination is, comparatively, a safe play, but I don't think it's the product of Dubya's standing in recent, or any, public opinion polls. I think it's mostly a product of two factors. The first factor — the one that became logically precedent to, albeit not more important than, the other key factor — was the unique-to-this-slot "need" to pick another woman to follow Sandra Day O'Connor. The first attribute used to narrow the field was thus whether a potential nominee had a Y chromosome, although being first didn't make an XX pair the most important criterion. No, the second and ultimately determinative factor can be completely summarized in three words: "No more Souters."

To you, me, the Senate, and the public, Harriet Miers may seem as much of a blank slate as David Souter was when Bush-41 nominated him. "Another 'stealth' candidate," many will say, "another blank slate about whom we know too little to make confident predictions!" That's already the official party line of the Dems, and it's something being muttered less loudly among puzzled Republicans as well.
But that is emphatically not the case from the perspective of George W. Bush. And the Constitution does, after all, give him the nomination power — not "the White House," not "the Republican Party," nor "conservatives generally," nor even "us'n who put him back into office." And he knows, and he's always known, that the blame for an appointee who turned out to become "another Souter" would likewise be placed on him. It's a responsibility and an opportunity whose benefits and risks he sought, but that he obviously takes very seriously indeed, because from Dubya's perspective, Harriet Miers was the one prospective female nominee about whom he personally felt that he could be most certain in predicting what sort of Justice she will become.

In fact, Beldar, to my way of thinking one of the most sensible and down-to-earth legal types in the blogosphere, has a series of excellent posts on the subject. It is absolute must read stuff... unless, of course, you're one of those left or right wing extremists who already has his mind made up and would prefer not to actually think about the issue. By the way, another nominee who was criticized as lacking experience and being qualified only by being a crony of two successive administrations comes to mind. His name was John Marshall, and he turned out OK.

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