Miers Shenanigans: Thanks Andy, But Sit Down And Shut Up.

(HT: Captain's Quarters) John Fund has a new piece up today, and it revolves around Andy Card. Mr. Card has quite a bit to do with the Miers nomination, as Mr. Fund points out. But worse, Mr. Fund points out that Mr. Card had a lot to do with another Supreme Court nominee, and it makes me think we're repeating history here.

http://www.opinionjournal.com/diary/?id=110007448&mod=RSS_Opinion_Journal&ojrss=frontpage (Emphasis mine)

President Bush has returned from a weekend in Camp David, where much of the discussion centered on the beleaguered nomination of Harriet Miers. While the president is determined to press forward, the prognosis he received was grim. Her visits with senators have gone poorly. Her written answers to questions from the Senate were sent back as if they were incomplete homework. The nominee herself has stumbled frequently in the tutorials in which government lawyers are grilling her in preparation for her Nov. 7 hearings.

The president trusts his instincts, and they are usually right. But when they fail him, the result can be calamitous. Take last December's nomination of Bernard Kerik to head the Department of Homeland Security. After several scandals involving his time as head of New York City's police quickly surfaced, it was then learned he had employed an illegal alien as a nanny and failed to submit required Social Security payments. After only a week, Mr. Bush quietly allowed Mr. Kerik to withdraw his name.

Andrew Card, the White House chief of staff, even suggested to ABC News that Mr. Bush had merely "intended" to nominate Mr. Kerik and insisted that "many of the questions that have been raised in the media were well understood by the White House when they considered Bernie Kerik." He wouldn't elaborate on which ones, leading many reporters to conclude the White House was more intent on spinning the story than learning lessons from the botched pick. The president reinforced that impression during a post-Kerik news conference, when he insisted, "I've got great confidence in our vetting process. And so the lessons learned is continue to vet and ask good questions and get these candidates, the prospective nominees, to understand what we expect a candidate will face during a background check, FBI background check as well as congressional hearings."

Andy Card can pat himself on the back when it comes to the White House's vetting process but Bernie Kerik, Harriet Miers, and Julie Myers show that there is a serious problem with their process. Kerik had enough legal problems to make Bill Clinton jealous. Harriet Miers keeps claiming she's qualified, and everytime she opens up her mouth she makes a fool of herself. And Julie Myers wouldn't have been named as the new ICE chief is she weren't married to Michael Chertoff's chief of staff. In the waning years of the president's term it seems that cronyism is becoming the norm.

The botched handling of the Kerik nomination was a precursor of much that has gone wrong with the Miers nomination. This time, the normal vetting process broke down, with Mr. Card ordering William Kelley, Ms. Miers's own deputy, to conduct the background checks--a clear conflict of interest. Even Newt Gingrich, a supporter of Ms. Miers's nomination, says that "the president believes in her so deeply, he is so convinced she's the right person, that I don't think it ever occurred to him to go through the kind of normal opposition research and normal vetting."

The big difference between the Kerik nomination and the Miers nomination is that Mr. Bush has a long history with Ms. Miers and he is still bravely fighting for her after three weeks of brutal criticism. But Ms. Miers has not been well-served by Bush supporters who have engaged in increasingly strained arguments to overcome the skepticism about her. Three approaches in particular have alienated many people who are vital to Ms. Miers' confirmation:

Intimidation and arm-twisting. Many longtime supporters of President Bush have been startled to get phone calls from allies of the president strongly implying that a failure to support Ms. Miers will be unhealthy to their political future. "The message in Texas is, if you aren't for this nominee, you are against the president," one conservative leader in that state told me. The pressure has led to more resentment than results.

This is the kind of crap we'd expect from Democrats. We are opposed to this nominee because she stinks. She stinks to high heaven. Even God is plugging his nose on this one. There are too many things coming out about Miers, like the controversy surrounding her dealings with the Texas Lottery Commission, and the exorbitant retainer paid to her and her firm during the president's final term in office in Texas. There are people from Andy Card's office that say Mier's isn't worth the president's nomination. One (unnamed, of course through the media) stated point blank that this was a nepotistic nomination. He is our president, and we have supported him implicitly. If the president would like to see his base turn on him, keep acting like a Democrat, and he'll see which way the wind blows.

Similar pressure has been applied in New Hampshire, site of the nation's first presidential primary in 2008. Newsweek has reported that "when George W. Bush's political team wanted to send ambitious Republican senators a firm message about Harriet Miers (crude summary: 'Lay off her if you ever want our help')," they chose loyal Bush ally and former state attorney general Tom Rath to deliver it. Plans were even launched to confront Virginia's Sen. George Allen, a likely 2008 candidate for president, and demand he sign a pro-Miers pledge. Luckily, the local Bush forces were warned off such a move at the last minute.

"Lay off her if you ever want our help"? Excuse me? This frelling president supported two known and notorious RINOs in Specter and McCain during the 2004 campaign. Specter was facing serious opposition from a GOP contender in Pat Toomey. The president and Santorum rushed to his aid--keeping Regan's famous "11th Commandment" amongst the GOP. When McCain criticized the president during the election run, the president either ignored it, or defended McCain's right to speak. He refused to address the crtiticisms of a man who was supposedly campaigning for him. This, above all elese, showed to me how moderate the president was.

Mr. Rath didn't return my calls, and local sources say he is laying low now that reporters have uncovered his key role in pushing the nomination of David Souter in 1990. "It was Rath and [then-Sen. Warren] Rudman who convinced [then White House chief of staff] John Sununu to back Souter," recalls Gordon Humphrey, a former U.S. senator from the Granite State who at the time supported Judge Souter as a member of the Judiciary Committee. The profound disappointment conservatives experienced when Justice Souter, another stealth nominee, veered left is a major reason for the resistance to Harriet Miers.

Another reason for conservative suspicion is that it was Mr. Card, a former moderate Massachusetts state legislator, who pushed the Miers choice. "This is something that Andy and the president cooked up," a White House adviser told Time magazine. "Andy knew it would appeal to the president because he loves appointing his own people and being supersecret and stealthy about it." Conservatives still recall that in the White House of the first President Bush, Mr. Card was deputy chief of staff to Mr. Sununu, the prime backer of Judge Souter. Mr. Card told me on Friday that "it would be a complete exaggeration to say I played a role in the Souter selection. I merely supported his nomination as I did all presidential appointments."

As an advisor (being deputy chief of staff, you do have that job) to Mr. Sununu, had Mr. Card had any reservations of Mr. Souter, he would have been obligated to voice them. Obviously, he didn't. And why is it that those connected to the president's administration feel so apprehensive about speaking up or voicing a concern over something. It is more helpful for the president and his subordinates to work through a problem than to have no opposition, and have a potential problem blow up in their face. For Mr. Card to poo-poo his involvement in the Souter decision doesn't answer the overall question of whether he had a problem with him or not.

Ed Rollins, the GOP consultant who at the time headed the House Republican Campaign Committee and who was Mr. Card's boss in the Reagan White House, remembers it differently. "Of course Andy played a role," he told me. "He was Sununu's top aide." Two other aides who served with Mr. Card in the White House told me he was an enthusiastic backer of the Souter selection. "Now that he's brought us Miers we worry that 15 years later Andy is playing the role of a Serial Souterizer," one said.

And as we see from Mr. Rollins, the worst fears are confirmed. Mr. Card did support Souter's elevation to the high court. And our fears are real with Miers; this woman could be keeping mum on certain issues for the sheer fact that she may be more moderate on a variety of issues. A senator (again unnamed through the WaPo) stated that his interview with Miers left him perplexed when he asked her the question of why she wanted to be on the Supreme Court, and her answer was reminiscent of the sort that a Miss America contestant would give. That senator immediately made his concerns known to Specter, the chairman of the Judiciary Committee.

Rewriting the history of Ms. Miers's selection. After political pushback by conservatives became clear, the White House apparently engaged in spurious spin to explain the logic of the selection. Dr. James Dobson, the head of Focus on the Family, says he was told by White House aide Karl Rove that other female candidates had withdrawn from consideration because "the process had become so vicious and so vitriolic and so bitter that they didn't want to subject themselves or their families to it." White House aides have told others the same story, but will mention names only privately. Many now feel they were misled.

Confirm Them, the site keeping close tabs on the judicial nominees the president has put up, blew this spin out of the water when they approached a couple of other nominees, and received a different story through their spokespeople. And it was found out that potential nominees like Michael Luttig and Karen Williams weren't even on the president's short list. Now, everyone knows that we, at the Asylum, really wanted someone like Mr. Luttig, and it was due to his qualifications. But when the president comes out and says that she's the "best qualified" person he could find, I have to raise an eyebrow. Either he wasn't looking for a really qualified nominee, or he didn't want to.

After making several calls to White House and Senate staffers as well as conservative activists who unofficially advised the White House, I have grave doubts about the White House storyline, as do others. One potential nominee did want the White House to know she had some family problems that could bear on the selection process but she did not withdraw her name. Three whose names the White House has privately mentioned as having dropped out say they are angry at any suggestion they did.

What is clear is that the same White House that says it won't listen to senators who tell them the Miers nomination should be withdrawn was highly solicitous of Senate objections to other qualified nominees. One federal judge was nixed by a powerful senator over a judicial opinion that would have been attacked by feminists. Priscilla Owen and Janice Rogers Brown, both of whom won tough confirmation battles for seats on appellate courts only this spring, were nixed by other GOP Senators as too tough a battle for the high court. Alice Batchelder of the Sixth Circuit was deep-sixed by an old Ohio political rival, Republican National Committee co-chairman Jo Ann Davidson. The White House and some senators deemed Edith Jones of the Fifth Circuit too difficult to confirm. Given Mr. Bush's idée fixe that the nominee had to be a woman, it's possible the White House allowed itself to be pushed into a corner in which Ms. Miers was literally the only female left.

Who says that it "had to be" a woman. This is what irritates me the most in this nomination. The power of the president to nominate people is explicit in the Constitution, but there is a check against that power. The Senate gives advice and consent on that nominee, and they're to be the best qualified people for the job. In Federalist #76, Alexander Hamilton emphasized the point that the Senate had to be sure that the president's nominees weren't cronies or under-qualified for the job they were being appointed to. The White House obviously hasn't gotten the point that enough people see the problems that either they don't, or they're ones that the White House has chosen to ignore. And why is it that the president says he welcomes a fight, yet he seemed completely unwilling to fight for a better nominee? Despite the fact that the above nominees are all women (where's the equality in that?) they're all infinitely more qualified than Miers. If it's a fight the Democrats wanted and welcomed, then the president should have nominated one of them. This won't be a fight for Miers. It could end up being a massacre.

A totally failed White House effort to explain and build support for the nomination. Assuming Ms. Miers was the only potential nominee the White House inner circle could agree on, it is remarkable how poor a job they have done in providing even the most basic information about her. Ms. Miers herself had to make an emergency trip to Dallas to recover basic documents that would normally have been submitted during a vetting process.

Ms. Miers has never published anything of note other than vanilla op-ed pieces, and her memos to President Bush are protected by executive privilege. In trying to find clues as to her judicial philosophy, I have called all over Texas and Washington in search of people she might have talked with about that topic. No luck. In fact, it became clear Ms. Miers is a complete mystery. "We spent about 1,200 hours together and had in excess of 6,000 agenda items, and I never knew where Harriet was going to be on any of those items until she cast her vote," Jim Buerger, a former Miers colleague on the Dallas City Council, told the Washington Post. "I wouldn't consider her a liberal, a moderate or a conservative, and I can't honestly think of any cause she championed."

This goes beyond stealth. The unnamed aide in Mr. Card's office, cited by the WaPo weeks ago, that stated she was indecisive seems to reveal more than anything else that's been mentioned. The statement above by Mr. Buerger seems to lean in that direction. The idea that is being presented by her supporters that she's a "poker player" doesn't hold water. Rehnquist was a poker player, and played his hand close to the vest. But Rehnquist's judicial philosophy was never in question. We knew him to be an originalist, of sorts, and more often than not, he sided with Scalia and Thomas--the two justices o the court whose judicial philosophy was never in doubt.

I then tried the White House and the Republican National Committee and gave them a simple request. "Can you give me the name of anyone who has ever had a serious conversation about politics or judicial philosophy with Ms. Miers? Leave aside her good friend Nathan Hecht or someone on the White House payroll. I don't even have to know what the conversation consisted of, just be satisfied that they had one." I never received any names.

I called Justice Hecht, her longtime friend of 30 years, who now sits on the Texas Supreme Court. The gracious Justice Hecht, who has testified to Ms. Miers's character, told me she is a strict constructionist in judicial philosophy and is "pro-life" in her personal views. When I asked him if there was anyone else he knew who had ever spoken with Ms. Miers about politics or judicial philosophy, he hesitated. After some effort he came up with one name. After more prodding he gave me another name, someone he said would be of "limited help." I thanked him and called up his two suggested sources. One didn't return my call. The other, former Texas Supreme Court justice Tom Phillips, recalled one conversation about how Ms. Miers could "get out the vote" in her race for City Council. He was otherwise stumped.

So my hunt went on. In desperation, I took to going on radio talk shows in Texas and tongue-in-cheek offered to practice "checkbook journalism" for the first time in my career. I said I would write a small check to the favorite charity of anyone who contacted me and could plausibly say that he has had a serious discussion about politics or judicial philosophy with Ms. Miers. So far it hasn't cost me a dime. For my trouble, I have been incorrectly attacked by allies of Ms. Miers, including some in the White House, for supposedly waving a checkbook seeking negative information about her. For the record, I made my offer in a jocular fashion, but to make a serious point. With the exception of President Bush, no one appears to know the nominee's judicial philosophy.

And this is one of the reasons why we're opposed to her. NO ONE, other than the president, and possibly Andy Card, can stand up and speak for her. Nathan Hecht could be another one who could speak on her behalf, but on Hugh Hewitt's show, Mr. Hecht admitted that he and Harriet had dated on and off over the years she was in Texas. In my opinion, Mr. Hecht can't be trusted to give a solid, nonpartisan opinion on Miers. He is influenced in the fact that he dated her, and the two have been good friends for many years. What is even more telling is that Mr. Hecht can give nothing other than his opinion that she's a "strict constructionist" and that she's pro-life. Beyond that, he can give nothing. And I take offense to the White House's insinuation that Mr. Fund was looking solely for negative press on her. He was looking for someone who could confirm the administration's claims that Miers was a good call. The problem he kept running into is that no one knew a damn thing about her. And that sends us back to square one, which is the "trust me" defense.

And we're not simply going to take the president's "trust me" approach. Especially on the heels of the fact that Andy Card was involved in the Souter nomination, and now he's involved in the Miers nomination, and both bear striking similarities. "Trust me" has burned the base a few too many times, and it just can't be accepted any longer. If I took "trust me" from everyone I spoke with, I'd be dead by now. I trust in myself. I trust in Marcie. I trust in few friends. I don't trust a president that I've never personally met with, nor do I trust a longtime friend of his to sit on the high court and render decisions based on jurisprudence that she clearly doesn't understand.

I believe it is almost inevitable that Ms. Miers will withdraw or be defeated. Should that happen, it is important President Bush understand how it really happened. While he acted out of sincerity, the nomination was quickly perceived by many as merely a means to a desired end: getting another vote for his views on the court. While some conservatives backed her because they honestly believed she would rule independently with an understanding of the limited role of judges envisioned by the Founders, that message was drowned out by accusations of cronyism and mediocrity.

Yes, I do hope that the president will be more of a man that John McCain if Miers withdraws or is defeated. To this day, John McCain still believes the president played dirty pool against him in the 2000 primaries. I do hope the president doesn't reduce himself to such petty petulance. She will be defeated based on her qualifications, or lack thereof. She will be defeated for her inability to grasp simple Constitutional ideas. Or, the hullabaloo that is emanating from her detractors (178 blogs at last count against, and NZ still hasn't added us to the roll, yet.). And as to the accusations of cronyism, we call a spade a spade. That is exactly what this nomination looks like. This nomination doesn't look like the best qualified person, but rather a political statement. A woman steps down, a woman must be appointed. And he isn't going to trust just any woman, he wants a friend he knows on the court. And not just any friend, but one who shares the same views he does, especially in their mutual faiths. (That point can't be shoved to the side; her Evangelical Christian views were a primary focus when she was first announced. That has been abandoned now because so many detractors have said it's an irrelevent point, and it cannot be cited as a qualification for her position on the court.)

The president also was let down by seven senators in his own party who in May agreed to scuttle plans to end judicial filibusters blocking nominees from ever getting a vote. It wouldn't have been unreasonable for him to think the Senate wasn't in a position to confirm a nominee with a long paper trail.

But he may soon have a chance for a fresh start and no choice but to have a fight over substance. When Douglas Ginsburg asked to have his nomination to the Supreme Court pulled in 1987 after allegations he had used marijuana, Ronald Reagan won unanimous confirmation in a Democratic Senate for Anthony Kennedy, then a judge with a decade-long conservative track record on a federal appellate court. Similarly, Mr. Bush recovered quickly from losing Linda Chavez as his nominee for Labor Secretary and Mr. Kerik as Secretary of Homeland Security. The damage to his relations with his conservative base would blow over quickly if Mr. Bush were to quickly name a well-qualified nominee who was not a sphinx when it came to judicial philosophy. Perhaps this time he might even expand the talent pool to include--gasp--men.

And this is why I understand Hugh Hewitt's point about the damage done to the GOP. He states that if people don't move in lock-step with the president, the damage created by the base could be potentially hazardous to the elections in '06 and '08. I doubt the damage will be that great. I can see a number of GOPers not going out on election day, but I can see a greater backlash if the president doesn't do something about Miers. It is clear that this woman doesn't have the qualifications to sit on the court. And yes, I'll admit that she has some great qualifications if you're looking for a lawyer to hire, but I have to question her judicial philosophy; especially on the heels of those that have spoken with her, and state they have problems with trying to nail her down on that question.

I can understand the president wanting to "build a legacy" for years to come, but his legacy was secured. It was secured the moment that the animals in Afghanistan and Iraq were dispatched, and freedom was brought to both nations. He stared down the Chinese over the spy plane incident early in his first term. He instituted tax breaks to jump start an economy slipping into a deep recession that was caused by his predecessor's foolishness with the economy. And, he appointed a highly-qualified jurist to succeed one of the greatest chief justices of the 20th Century in John Roberts. This man didn't have to continue building a legacy. But I have to question where the plenary idea came from that Justice O'Connor's seat had to be filled by a woman?

A seat on the Supreme Court is a high honor, and it's demanded that we have a person qualified to sit on that bench. It is the last line of defense for our rights and liberties. I want only those qualified to be there to sit up there and rule. I want those that have orginalist or constructionist ideology. Activists need not apply, and in my opinion that is what Miers will end up being. She will be another "swing vote" the way that O'Connor was. That is something that is wholly unacceptable, in my opinion. In this day and age where the Supreme Court sees fit to invent rights we don't have, and defend them staunchly, and rips away rights that are enumerated in the highest law of the land, it is necessary to have the right people on the bench. In our opinion, Miers can't comprehend the highest law in the land under the Constitution. Hugh Hewitt can spin it anyway he chooses. He can believe that any idiot can interpret the Constitution, but I trust the senators she's met with that say she doesn't grasp the constitution. When her questionnaire is questioned by the co-chairs of the committee she's going in front of, there are problems. And because of all of this--all of what has been uncovered about her--we, at the Asylum, oppose this nomination.

Publius II