The Issue with Harriet

Jonah Goldberg:

The authentic dismay has been on the Right. Many conservatives believed this was the opportunity for a slam dunk. John Roberts was an inspired choice. His credentials are impeccable, his abilities beyond dispute. If Bush appointed a Michael McConnell or a Michael Luttig — brilliant judges on the 10th and Fourth Circuits, respectively — he could have not only moved the Court to the right but moved the entire legal culture through the sheer intellectual force of the justices.

Harriet Miers credentials are, shall we say, modest. By consensus, she’s a distinguished attorney and highly capable presidential aide. She was a major player in Texas legal circles, serving as the first female head of the state bar of Texas. President Bush’s introduction on Monday smacked of resume padding. She was on the Dallas City Council and tried cases before judges. And, President Bush noted, as head of the Texas Lottery Commission Miers “insisted on a system that was fair and honest.” That’s a bit like saying that, as head of the water authority, she insisted tap water be fit for human consumption; it’s the right position but hardly a profile in courage.

John C. Wohlstetter:

President Bush's choice of White House counsel Harriet Miers has prompted much criticism, but his friends miss perhaps the biggest problem with the nomination: the likelihood that if confirmed the new Justice, because of her White House work, will recuse herself in major cases where her vote could prove decisive -- notably, war cases. The White House can claim executive privilege and refuse the Senate Miers's memos written as White House counsel. While executive privilege can be breached in extraordinary circumstances such as a criminal investigation (e.g., Watergate), a routine confirmation hearing fails to surmount that hurdle. Senators can, of course, vote down a nominee who declines, however lawfully, to supply requested information.

But if Senators are prevented from seeing memos they should ask on what actual cases Miers has advised the President. Under federal law, if Ms. Miers is confirmed, and has professionally advised on a matter that subsequently comes before her on the bench, she must recuse herself. Federal law is quite specific here. Title 28 U.S. Code sec. 455 covers recusal of judges, justices, and magistrate judges. Sec, 455 (b)(3) recites one ground for mandatory recusal: "Where [a judge, justice, magistrate judge] has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy." Sec. 455 (e) adds: "No justice, judge or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b)."

One case already is wending its way to the Supreme Court: a July 15 unanimous decision by the U.S. Court of Appeals, D.C. Circuit, upholding the right of the government to detain and try unlawful combatants without giving detainees rights under the Geneva Conventions. One member of that three-judge panel was Chief Justice Roberts, who must thus recuse himself on appeal to the Supremes.

Richard Miniter:

Leaning over the presidential podium in the Rose Garden Tuesday, Bush listened as a reporter posed the key question about Harriet Miers: Of all the women lawyers in America, is she really the most qualified?

Without hesitation, Bush said, "Yes."

Let's grant that Bush is right when he lauds her "stellar record of accomplishment in the law" and says she is "plenty smart" and an "enormously accomplished person."

Is Miers the best of the best by any objective measure? Since Bush made it clear that he wanted someone who did not have judicial experience, let's look at female lawyers who do not wear black robes. Just for fun, let's compare Miers's resume with that of radio-talk show host Laura Ingraham.

Miers's undergraduate education was completed at Southern Methodist University in Dallas in 1967. Ingraham graduated from Dartmouth College, in Hanover, New Hampshire. That's not to say an Ivy League education is a prerequisite for Supreme Court service. It's not. But as one of many details in one's background, a highly selective admissions process is not nothing.

Campus conservative? No, Miers was essentially apolitical in the 1970s and gave money to various national Democratic politicians in the Reagan years. By contrast, Ingraham was a regular contributor to the conservative Dartmouth Review — where she was it's first woman editor! — and worked in the Reagan White House.

Miers attended law school at Southern Methodist University, not one of the nation's top 20 law schools at the time. Even today it is ranked 52nd best in the nation by U.S. News and World Report. Ingraham studied at the University of Virginia Law School, currently ranked eighth in the nation.

Federalist Society membership? It does not appear that Miers bothered to join. Of course, it was founded years after she passed the bar, but many conservative lawyers do join after law school. "But she supports the society," says White House press person Dana M. Perino, and Miers has spoken at a number of Federalist Society events. Ingraham of course was a member.

Clerked for federal judge? Yes, Miers clerked for a U.S. District court judge Joe E. Estes in Dallas. Ingraham clerked for judge Ralph K. Winter on the second circuit of the U.S. Court of Appeals.

Clerked for U.S. Supreme Court? Miers did not, while Ingraham researched for Justice Clarence Thomas.

Age does not seem to favor Miers either. She’s 60; two decades younger, Ingraham would have more natural staying power.

WashPo:

The conservative uprising against President Bush escalated yesterday as Republican activists angry over his nomination of White House counsel Harriet Miers to the Supreme Court confronted the president's envoys during a pair of tense closed-door meetings.

A day after Bush publicly beseeched skeptical supporters to trust his judgment on Miers, a succession of prominent conservative leaders told his representatives that they did not. Over the course of several hours of sometimes testy exchanges, the dissenters complained that Miers was an unknown quantity with a thin résumé and that her selection -- Bush called her "the best person I could find" -- was a betrayal of years of struggle to move the court to the right.

At one point in the first of the two off-the-record sessions, according to several people in the room, White House adviser Ed Gillespie suggested that some of the unease about Miers "has a whiff of sexism and a whiff of elitism." Irate participants erupted and demanded that he take it back. Gillespie later said he did not mean to accuse anyone in the room but "was talking more broadly" about criticism of Miers.

The tenor of the two meetings suggested that Bush has yet to rally his own party behind Miers and underscores that he risks the biggest rupture with the Republican base of his presidency. While conservatives at times have assailed some Bush policy decisions, rarely have they been so openly distrustful of the president himself.

Leaders of such groups as Paul M. Weyrich's Free Congress Foundation and the Eagle Forum yesterday declared they could not support Miers at this point, while columnist George Will decried the choice as a diversity pick without any evidence that Miers has the expertise and intellectual firepower necessary for the high court.

As the nominee continued to work the halls of the Senate, the White House took comfort from the more measured response of the Senate Republican caucus and remained confident that most if not all of its members ultimately will support her. Yet even some GOP senators continued to voice skepticism of Miers, including Trent Lott (R-Miss.), who pronounced himself "not comfortable."

"Is she the most qualified person? Clearly, the answer to that is 'no,' " Lott said on MSNBC's "Hardball," contradicting Bush's assertion. "There are a lot more people -- men, women and minorities -- that are more qualified, in my opinion, by their experience than she is. Now, that doesn't mean she's not qualified, but you have to weigh that. And then you have to also look at what has been her level of decisiveness and competence, and I don't have enough information on that yet."

The persistent criticism has put the White House on the defensive ever since Bush announced Monday his decision to nominate Miers to succeed the retiring Sandra Day O'Connor. While Miers has a long career as a commercial lawyer, Texas political figure and personal attorney to Bush before joining him at the White House, she has never been a judge or dealt extensively with the sorts of constitutional issues that occupy the Supreme Court.

Bush tried to defuse the smoldering conservative revolt with a Rose Garden news conference Tuesday, and the White House followed up yesterday by dispatching Gillespie, Republican National Committee Chairman Ken Mehlman and presidential aide Tim Goeglein to meetings that regularly bring together the city's most influential fiscal, religious and business conservatives.

"The message of the meetings was the president consulted with 80 United States senators but didn't consult with the people who elected him," said Manuel A. Miranda, a former nominations counsel for Senate Majority Leader Bill Frist (R-Tenn.), who attended both private meetings.

Weyrich, who hosted one of the meetings, said afterward that he had rarely seen the level of passion at one of his weekly sessions. "This kind of emotional thing will not happen" often, Weyrich said. But he feared the White House advisers did not really grasp the seriousness of the conservative grievance. "I don't know if they got the message. I didn't sense that they really understand where people were coming from."

Hard to see how Dubya didn't blow off his own big toe with this nomination.

Unlike the Democrats, we have standards. The Right won't support a SCOTUS nominee on the word of the President alone.