The Miers Nomination in Trouble

John Fund's Monday column on the Miers nomination was must-reading. The Lord of Truth and several others pointed me toward it. The following passage was particularly enlightening...

It is traditional for nominees to remain silent until their confirmation hearings. But previous nominees, while unable to speak for themselves, have been able to deploy an array of people to speak persuasively on their behalf. In this case, the White House spin team has been pathetic, dismissing much of the criticism of Ms. Miers as "elitism" or even echoing Democratic senators who view it as "sexist." But it was Richard Land , president of the Southern Baptist Convention, who went so far as to paint Ms. Miers as virtually a tool of the man who has been her client for the past decade. "In Texas, we have two important values, courage and loyalty," he told a conference call of conservative leaders last Thursday. "If Harriet Miers didn't rule the way George W. Bush thought she would, he would see that as an act of betrayal and so would she." That is an argument in her favor. It sounds more like a blood oath than a dignified nomination process aimed at finding the most qualified individual possible.

Senate Judiciary Committee chairman Arlen Specter says he has no doubt Ms. Miers is taking "a crash course" in constitutional law. She will be primed with talking points and her compelling success story when the hearings begin. The presumption that she should be confirmed will weigh heavily on Republican senators who will be constantly reminded that the president has made dozens of good judicial picks for lower courts.
But that ignores the fact that every Republican president over the past half century has stumbled when it comes to naming nominees to the high court. Consider the record:

After leaving office, Dwight Eisenhower was asked by a reporter if he had made any mistakes as president. "Two," Ike replied. "They are both on the Supreme Court." He referred to Earl Warren and William Brennan, both of whom became liberal icons.
Richard Nixon personally assured conservatives that Harry Blackmun would vote the same way as his childhood friend, Warren Burger. Within four years, Justice Blackmun had spun Roe v. Wade out of whole constitutional cloth. Chief Justice Burger concurred in Roe, and made clear he didn't even understand what the court was deciding: "Plainly," he wrote, "the Court today rejects any claim that the Constitution requires abortions on demand."

Gerald Ford personally told members of his staff that John Paul Stevens was "a good Republican, and would vote like one." Justice Stevens has since become the leader of the court's liberal wing.

An upcoming biography of Sandra Day O'Connor by Supreme Court reporter Joan Biskupic includes correspondence from Ronald Reagan to conservative senators concerned about her scant paper trail. The message was, in effect: Trust me. She's a traditional conservative. From Roe v. Wade to racial preferences, she has proved not to be. Similarly, Paul Weyrich of the Free Congress Foundation recalls the hard sell the Reagan White House made on behalf of Anthony Kennedy in 1987, after the Senate rejected Robert Bork. "They even put his priest on the phone with us to assure us he was solid on everything," Mr. Weyrich recalls. From term limits to abortion to the juvenile death penalty to the overturning of a state referendum on gay rights, Justice Kennedy has often disappointed conservatives.

Most famously, White House chief of staff John Sununu told Pat McGuigan, an aide to Mr. Weyrich, that the appointment of David Souter in 1990 would please conservatives. "This is a home run, and the ball is still ascending. In fact, it's just about to leave earth orbit," he told Mr. McGuigan. At the press conference announcing the appointment, the elder President Bush asserted five times that Justice Souter was "committed to interpreting, not making the law." The rest is history.

Harriet Miers is unquestionably a fine lawyer and a woman of great character. But her record on constitutional issues is nil, and it is therefore understandable that conservatives, having been burned at least seven times in the past 50 years, would be hesitant about supporting her nomination.

Elitism is the dumbest charge anyone can make. Perhaps one could consider me an elitist, but my objection to Miers has nothing to do with her law school degree from SMU. It's what she's done since she graduated, which shows a complete lack of involvement in Constitutional law. The defense to this would be the idea that perhaps we should have non-lawyers on the Court, to better represent the common man. Setting aside that argument for a moment (and it's not one that I find compelling anyway), Miers is a lawyer. It's not too much to ask that the nominee, if they are a lawyer, be someone with a background in Constitutional law (and if they're not a lawyer, someone with a public policy background a tad bit more expansive than Miers' would be a good idea). As our good friend NC noted, it's fine to nominate your personal lawyer if his name is Ted Olsen (or, for liberals, Lawrence Tribe). Whatever the ideaology of the choice, the lack of judicial experience would be mitigated in such a case by the fact that the person has spent more than enough time working with issues similar to the ones they would confront on the bench. We don't have that here.

Fund also went on Hugh Hewitt and noted that White House is unprepared for six to seven surprises regarding the Miers nomination that should appear in the press in the next few days (hat tip: Polipundit, via Volokh and Instapundit).

By the way, Polipundit is hammering this nomination, with a pretty good set of suggested questions regarding Miers (Loyal reader RB, who pointed me to this post, noted other potential questions that should be asked regarding Miers' understanding of constitutional law). My feelings on this are getting stronger.

I don't think Miers should be confirmed, and I don't think she will be confirmed. In fact, I think it's increasingly likely that the best-case scenario takes place -- Miers withdraws her name upon the suggestion of folks at the White House who can actually read the tea leaves regarding the fight they're about to endure. Remember, the folks who would rush to the defense of a conservative nominee will not do it with enthusiasm for Miers. In fact, some will actively be undermining the nomination.

It's times like this that I recall a great quote from noted philosopher Hank Hill...

PEGGY: Oh, give me a break. I don't see how having a girl on the team would
ruin it. Did a woman judge ruin the Supreme Court?

HANK: Yes, and that woman's name was Earl Warren.

The President has created a battle that he didn't need. And he doesn't have the allies he needs to win it.