We at the Asylum have experienced something unique; we don’t agree. Marcie supports a "committee vetting" of her, and I’d prefer the committee show the woman the door. I do not feel that she is a worthy candidate. Nor do I think she fulfills the president’s previous criteria cited. She is not "the best qualified" nominee, as I can rattle off ten nominees that—in my opinion—are vastly superior to Harriet Miers. Nor, to my knowledge, is she "in the mold of Scalia and Thomas." She hasn’t proven the latter, yet.
Does she have an upside? To a point, yes. She has a number of "groundbreaking" accomplishments. I’ll not deny her that. Those go without contention. However, I point to her inexperience. I point to the fact she’s not a judge, that she hasn’t argued a single case before the high court, and that she really hasn’t the faintest idea about the inner workings of the Supreme Court. (That last bit my have some contention, but to my knowledge, she’s never clerked for a USSC justice, either.)
So, in the interest of maintaining the peace right now, I am willing to hold back on any further posts that ‘attack’ Miers. I won’t go out of my way to support her, either. I will act as a jusrist over her confirmation hearings. I’ll go in with an open mind, and I’ll determine her worth then. But both Marcie and I agree on three things:
First, she can’t clam up. She can’t play the silent game, and refuse to answer some questions regarding her belief on certain things. WE—not only as a nation, but as a party—need to now where she stands.
Second, she needs to be forthcoming on a number of issues. Yes, there are pieces she has written that address gun rights, she did try to get the ABA to be more open regarding abortion, and it can be assumed that she shares the same judicial philosophy that those she vetted for the president possessed.
Third, her judicial inexperience needs to be addressed. She must prove she can handle the rigors of being a Supreme Court jurist. This is not an admission to a sorority. She is not applying for a admission to a country club. She is being considered for a position on the highest court in the land.
Were there others that were more qualified than Miers? Of course there were. Regular readers to the Asylum have read our posts regarding those people. Come on...Everyone remembers our short list.
J. Michael Luttig
Janice Rogers Brown
Now, Owen is removed from the list as it was reported this last weekend that she withdrew herself from consideration. But that still leaves nine people. Aside from Estrada, who isn’t a judge, the others have served on their respective benches for awhile. The two exceptions remain in Brown and Owen (removed under her own request). Both were just recently confirmed this year. However, their track record—their paper trail—speaks for itself. Pundits like myself and Marcie across the nation fought to get both Brown and Owen, and Pryor—at the time—their up-or-down votes. Am I upset I was wrong? No, not at all. I was wrong on Roberts (that he’d be chosen), and I supported the man all the way through his confirmation proceedings. That included a blogger symposium organized by Hugh Hewitt where we—bloggers—vetted Roberts through the documents released by the White House.
But this morning, I was treated to a couple of things that are now starting to raise Marcie’s eyebrows. Below are excerpts from a piece written by David Frum from NRO. Mr. Frum cites a piece written by John Yoo, who was a member of the Office of Legal Counsel in the Dept. Of Justice. Links to both pieces are below.
"[A]ccording to press reports, she did not win a reputation as a forceful conservative on issues such as the administration's position on stem cell research or affirmative action."
Yoo is referring here to the case of Grutter v. Bollinger, a challenge to the constitutionality of preferential treatment for minorities in education. Many in the administration wanted to take a strong stand in favor of color-blindness. In the end, the administration faltered and argued that racial preferences are okay, up to a point. It is hard to imagine a more central issue to modern legal conservatives. Where was Miers? On the wrong side.
This gives me pause as I was one of several pundits that blasted the Supreme Court over the Grutter case. But Mr. Frum goes on further.
Inside the White House, Miers was best known, not as a conservative, not as a legal thinker, but as a petty bureaucrat.
"Her critics say the problem goes beyond what Miers does or doesn't know about policy -- and right back to a near-obsession with detail and process.
"'There's a stalemate there,' says one person familiar with the chief of staff's office. 'The process can't move forward because you have to get every conceivable piece of background before you can move onto the next level. People are talking about a focus on process that is so intense it gets in the way of substance.'
"One former White House official familiar with both the counsel's office and Miers is more blunt.
"'She failed in Card's office for two reasons,' the official says. 'First, because she can't make a decision, and second, because she can't delegate, she can't let anything go. And having failed for those two reasons, they move her to be the counsel for the president, which requires exactly those two talents.'"
Again, I’m given a moment of pause when I see things like this. A bureaucrat? Someone unable to reach a decision? She doesn’t even sound like she was qualified to hold the positions she held in the White House. And I’d rather not use the dreaded "c" word that I used on day one, it seems more and more like this nomination smacks of it.
"Another red flag for conservatives may be what is regarded as Miers's strongest credential: her work with the organized bar. Miers was elected president of the Texas bar and was a mover and shaker in the American Bar Association. Republicans have long criticized the ABA for politicizing the professional bar by taking positions on controversial social issues such as abortion and providing politically biased evaluations against Reagan-Bush judicial nominees. To be sure, Miers reportedly fought to allow the general membership to vote on the ABA's position supporting the right to abortion, a fact much trumpeted by Bush administration supporters yesterday. But she also apparently urged that the White House preserve the ABA's privileged role in reviewing the qualifications of judicial nominees."
There’s no argument that the ABA is definitely left-leaning in their ideology, and I resent the fact that the ABA is even involved in reviewing a nominees’ qualifications. That should fall to the president, his aides, and those in Justice.
And then I found this from Stanley Kurtz. Remember that what you’re about to read happened in the late nineties, when Ms. Miers was well into her "conservative" phase in her life.
In the late 1990s, as a member of the advisory board for Southern Methodist University's law school, Ms. Miers pushed for the creation of an endowed lecture series in women's studies named for Louise B. Raggio, one of the first women to rise to prominence in the Texas legal community. A strong advocate for women, Ms. Raggio helped persuade state lawmakers to revise Texas laws to give women new rights over property and in the event of divorce.
Ms. Miers, whom President Bush announced on Monday as his choice to fill the Supreme Court seat being vacated by Justice Sandra Day O'Connor, not only advocated for the lecture series, but also gave money and solicited donations to help get it off the ground.
A feminist icon, Gloria Steinem, delivered the series's first lecture, in 1998. In the following two years, the speakers were Patricia S. Schroeder, the former Democratic congresswoman widely associated with women's causes, and Susan Faludi, the author of Backlash: The Undeclared War Against American Women (1991). Ann W. Richards, the Democrat whom George W. Bush unseated as governor of Texas in 1994, delivered the lecture in 2003.
Does this make her a wacko feminist? No, not really. However, it is just one more thing where we have to give her the benefit of the doubt. This woman has more things to prove during her hearings than Ted Kennedy did after his Chappaquiddick incident. She has to prove her judicial philosophy. I could care less about her ideology. As our readers know, ideology has no merit on the high court. Jurists are to rule on the constitutionality of the law, and whether said laws will violate our rights as citizens.
As a matter of fact, in Federalist #78, Alexander Hamilton emphasizes this point:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.
And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
The idea that the judiciary should ever be a threat to us is laughable, until we look back over the Supreme Court's history over the last fifty years. No, it isn't allied with either branch of the government, but it has acted like a super-legislature on numerous occasions, thereby threatening our liberties and our rights. Kelo, anyone? Roe and Doe? Lawrence and states' rights? How about Grutter, McConnell, Atkins, or Lee? These are cases where our liberties and rights were questioned, and the court ruled improperly.
The judiciary is in place to be a check against the other two branches of the government. It is there to protect our rights. Miers judicial philosophy is key to this: Does she support such a notion? Does she believe that jurists are to act as unbiased arbiters of jurisprudence, or does she believe that jurists may alter the landscape through fiat; that being, activism? These are questions she must answer. We as a nation need to know.
And I have had criticism over my opposition to her. Marcie and I have had three arguments in three days. To say that Miers isn’t contentious is a foolish notion. And yet, I have others that question where my thinking is. I have had e-mails asking me why I should be trusted with my opinion. The answer, ladies and gentlemen, is as simple as what David Frum posted in his column today:
"Don't trust me. Trust your own eyes. The woman is 60 years old, a lawyer for more than three decades. Can you see any instance in this long life and career where Miers ever took a risk on behalf of conservative principle? Can you see any indication of intellectual excellence? Did she ever do anything brave, anything that took backbone? Did anyone before this week ever describe her as outstanding in any way at all?"
"If the answers to these questions is No, as it is, then you have to ask yourself: Why is a Republican president bypassing so many dozens of superb legal conservatives to choose Harriet Miers for the highest court in the land?"
So, I ask our readers the same question. Can anyone show me where this woman is qualified to sit on the nation’s highest court? I’m not a lawyer. I’m studying to be one, but many people have said that I have a solid mind when it comes to the Constitution, and how it should be interpreted. I have friends in Arizona that prompted me to take the monniker "Publius II" because my Constitutional arguments are comparable to Hamilton, Madison, and Jay. I even have a little following where I work stating that I’m more qualified to sit on the Supreme Court.
The accolades are welcome, but embarrassing. Until I reach that pinnacle, I’ll take thos compliments with a smile and a "thank you," but I don’t take it seriously. I’m just a guy making my way through life, and commenting on things going on in the world. Am I sound in my legal opinions? I think I am. Is Miers? That is yet to be determined. And WE, as a nation, should withhold judgment until the hearings are over. So, until the hearings start, I’m done dealing with her unless something comes up in research I feel that people need to be made aware of.
A rock-solid jurist would do no less. Let’s wait for the evidence before rendering any substantial decision on her.