Harriet, We Hardly Know Ye

The wonderful political strategy of splitting your base and delighting your opposition with an off-year election upcoming where you need strong turnout to maintain your strength continues to play out.

Whither Miers? The answer is blowing in the wind:

The problem is not that Harriet Miers stands outside the elite legal establishment but that she is very much part of it. The Bush administration, searching here and there for a marketing point to quiet skeptical conservatives, has been touting her simple, populist virtues. But her substantial involvement in the American Bar Association suggests she's spent far more time in the company of judicial activists than in the company of unfashionable originalists whose understanding of the Constitution corresponds to the common sense of ordinary Americans.

Would that Miers did lack credentials. Unfortunately, she possesses the very conformist credentials the legal elite responsible for decades of destructive jurisprudence find most reassuring. There is very little evidence yet -- apart from her procedural opposition to the ABA's abortion stance -- of a nonconformist streak in her. To overturn the unconstitutional growths metastatizing under stare decisis requires Scalia-like nonconformity. Is Miers capable of bucking the ABA culture that contributed to forming her?

Yes, she opposed the ABA's abortion plank. But what about all the ABA stances she didn't oppose, and in some cases facilitated? Were Antonin Scalia head of the ABA's rules and calendar committee in 1998 like Miers, would he have submitted for discussion on behalf of his colleagues motions endorsing homosexual adoption and the formation of an International Criminal Court? The White House has said that this doesn't prove agreement with her colleagues. Okay, but it does prove cooperation with them. And is working-well-with-peers a quality desirable in a potential justice with whom 4 to 5 of her peers are sure to behave like judicial activists?

That she was "just going along with what others wanted," both on this matter and possibly in her donations to Democrats like Al Gore and Lloyd Bentsen, undermines the White House's confident prediction that she will show impervious, changeless leadership on the court for decades to come.

Her resume suggests that she has spent far more time preoccupied with, and engaged by, process/consensus than principle. That aptitude no doubt made her an effective managing partner in Dallas. But how will that translate into courageous dissents? Much of President Bush's praise of her is beside-the-point, because it doesn't bear on the two qualities essential in a strict constructionist: a deep and lucid understanding of the Constitution and the resolute character to apply that knowledge in the face of withering scorn from the legal establishment.

Bush didn't need to find an intellectual as defined by the Harvard law faculty. But he did need to find someone like Scalia who embodies the best of populism and intellectual life -- that is, an intellectual who hasn't lost his intellect, or the will to use that intellect in defense of truths contained in the Constitution that the elite are determined to erase.

Bush found the advice of Democratic senators that he look outside the "judicial monastery" very persuasive. Why? The advice just reveals the nakedly political mindset of the Democrats: that they are looking not for judges with monkish independence but pols susceptible to fads and currents. The superficial, PC decision-making surrounding Miers's selection -- Laura Bush wanted a woman on the court, Bush was impressed by Miers's status as a female "pioneer" in his home state and so forth -- just adds to the impression that this choice will not dislodge Sandra Day O'Connor's influence on the court but reinforce it.

Hmm, wonder why conservatives are so angry?

Michael Barone's more optimistic:

Some on the right fear that she will be seduced by the blandishments of social Washington and will be a victim of the "Greenhouse effect"—Judge Larry Silberman's term for judges who seek the approval of the New York Times's veteran Supreme Court reporter, Linda Greenhouse. I doubt that. People in the Bush White House don't mix much with social Washington and don't seem to care any more than Jesse Helms did about the opinion of the New York Times. By all accounts that is true of Harriet Miers. You saw a lot of Justices Sandra Day O'Connor and Anthony Kennedy on the Washington social circuit. I don't think you would see much of a Justice Harriet Miers.

But what would she do with her time while recusing herself from all the War on Terror appeals coming up?

Mark Levin thinks the glass is empty:

But the second argument about the impotence of the Senate Republicans is worth some discussion, too. The fact is that this Gang of 14 moderates, led by Senator John McCain, did make it much more difficult for the president to win an ideological battle over a Supreme Court nominee. The Democrats did, in fact, send warnings that they were prepared to filibuster the second nominee. And under such circumstances, the president would have needed 60 votes to confirm his candidate, not 51.

Lest we forget, Majority Leader Bill Frist and the overwhelming majority of his Republican colleagues were poised to defeat the unprecedented and frequently used (or threatened) filibuster tactics that had been unleashed against President Bush by the Democrats to weaken his appointment power. The big media editorialized against it. George Will wrote at length (albeit unpersuasively) against it (see here and my response to him here). And Bill Kristol's favorite presidential candidate in 2000, John McCain, the leader of the Gang of 14, was all over the media making clear he would torpedo such an effort. And that's exactly what he did. This in no way excuses the president's blunder in choosing Miers. But the ideological confrontation with the likes of Senator Charles Schumer and the Democrat left that many of us believe is essential, including Will and Kristol, was made much more difficult thanks to the likes of McCain and the unwillingness to change the rule before any Supreme Court vacancy arose. This president has been poorly served by his Republican "allies" in this regard. Bush is the first president who has had to deal with an assault of this kind on his constitutional authority. And unless and until the filibuster rule is changed, a liberal minority in the Senate will have the upper hand.

Today the president would have to persuade seven of the most unreliable Republican senators to trigger the so-called nuclear option in order to clear the way for an up-or-down vote for, say, a Luttig. It is not at all certain or even likely that Lincoln Chafee, Olympia Snowe, and/or Susan Collins — the most liberal of the seven — would have voted for the Senate rule change for the purpose of confirming a solid originalist. And it's likely the Democrat leadership would have succeeded in convincing at least some (if not most) of the seven Democrat moderates to oppose a rule change. I have no doubt that this was part of the White House's political calculation. And it's possible the president didn't want to limp into this fight. That's no excuse. But McCain — who wants to be president and has now endorsed Harriet Miers — and his cadre must not escape scrutiny for their blunder.

For somebody who hates "small ball", George W. Bush is sure playing a lot of it with this nomination.