Politics: October 2005 Archives

I've been seeing an argument a fair amount lately, in relation respect to the Miers nomination. It was just lame at first and has become increasingly annoying the more I've seen it. It's a pretty ridiculous argument on the face of it, because some of the assumptions are just obviously wrong, but even if you grant those assumptions the conclusion doesn't follow from them. The argument thus fails on all counts. The claim is that Republicans don't or shouldn't really want to overturn Roe v. Wade. They run on that claim, but the smart ones never mean it. They couldn't mean it. It would be political suicide to mean it, because that would mean they would have an aim that gets them elected, and achieving that aim would put themselves out of a job. If Roe ever successfully got overturned, no one would ever vote for Republicans anymore, because the only reason anyone has ever voted for a Republican is no longer an issue.

I'm becoming more and more convinced that many of those who are opposing Harriet Miers' nomination to the Supreme Court are indeed elitist. Indeed, I think it's a kind of elitism that blinds them to what those calling them elitist are really saying. Dennis Coyle expresses his frustration at the elitism charge, claiming that Bush simply confuses intellectual qualifications with a liberal approach to jurisprudence. Ultimately, his defense of his elitism is that those claiming it's elitism are simply anti-intellectual. I think this is a fundamental misunderstanding of what those calling it elitism really mean. It's not anti-intellectualism by any means, and it's certainly not confusing intellectual qualifications with liberalism. It's not claiming that intellectualism is bad. It's not claiming that intellectual standards should be thrown out. It's not claiming that we should abandon principles for practicality. It's not claiming that intellectualism is responsible for liberalism. What it's claiming is that the intellectual standards we need should be much broader than the elite Constitutional Law specialists think they should be.

The work of the Supreme Court often involves ConLaw, and it involves difficult and crucial questions about ConLaw. Someone appointed to the Supreme Court ought to be competent in such matters. There's no evidence that Miers isn't, however, and all claims to the contrary are impatient and premature. She has some experience in ConLaw, contrary to the misinformation being spread about her. It's unclear how extensive this background is, but she has argued cases in that area, and at least one of them made it to the Supreme Court, who upheld her side of the case without needing to take it to oral arguments. This doesn't tell the senators all they need to know about her competency in that area, but there's a process for figuring that out. If she is incompetent about ConLaw, that will come out at the hearings. It will be obvious. We may not be able to tell where she stands within the realm of competency, but that's fine. If she's competent, she can do the job. That's all senators are supposed to be deciding anyway, according to the usual conservative view, especially given that ConLaw isn't the be all and end all of Supreme Court jurisprudence, despite those who have elitistly declared it to be such.

Former Bush speechwriter Matthew Scully defends Harriet Miers. One paragraph strikes me:

It is true that Harriet Miers, in everything she does, gives high attention to detail. And the trait came in handy with drafts of presidential speeches, in which she routinely exposed weak arguments, bogus statistics and claims inconsistent with previous remarks long forgotten by the rest of us. If one speech declared X "our most urgent domestic priority," and another speech seven months earlier had said it was Y, it would be Harriet Miers alone who noted the contradiction.

That sounds to me as if it's describing exactly the skill that I would say is most important for being a Supreme Court justice, though I wouldn't say the only important one. John Roberts impressed me in his confirmation hearings more because he displayed this sort of skill than for any other reason. My prediction is that those who aren't already closed to immediate observation (which is about half of conservatives at this point) will observe in her hearings that she really does have the sorts of skills that a Supreme Court justice should have. Those closed to observing anything will, of course, not budge from their position even if she outclasses John Roberts' performance. Most of The National Review's editors have declared themselves to be in this category, but I suspect almost everyone in this condition has been that way since her name was first announced, even if they knew nothing about her. Still, I suspect what we will see is that she's light years beyond where they've been putting her, and if she's confirmed I suspect we will also see that she is indeed a judicial conservative. I'm not basing this on my gut or on the president's say-so. I'm basing it on lots of things I've read from people who know her well, including the extremely conservative Chief Justice of Texas' Supreme Court.

Maybe those will turn out not to be a good guide, but they've got to be a lot better than those who keep trying to turn everything said about her into a negative, as if they've got some private animus against her as a person. Most of the writing I've seen from conservatives opposing her has come across that way, and the arguments given for their conclusions seem to me just not to follow from what they present as evidence. It seems rather impatient to be unwilling to wait for hearings before criticizing Bush's choice of her. It seems rash to assume she's not the conservative she very much seems to be (and all supposed evidence to the contrary simply does not mean what people are saying it means, as those defending her have repeatedly pointed out). It's as if those who are saying these things are simply not paying attention. But it's downright obnoxious to call for her to withdraw from consideration or to call the president to withdraw her nomination, when she hasn't even had a chance to respond publicly to the factual errors being passed around about her, never mind the uncivil, even rude, remarks I'm seeing regularly around the blogosophere that don't seem to me to be based in anything we even know. Wait for the hearing. Anything else is unfair. She should have the chance to answer the senators' questions. If, after that, people are still unconvinced, then say what you want. Just consider what comes out of the hearings and don't base it on things you don't know, as just about every critic of her I've read has been doing.

James Dobson has announced the details of his conversation with Karl Rove about the Harriet Miers nomination. Most of those details are things that have since been publicly revealed, and Dobson wasn't willing to share them the details of a private conversation without permission. We now know about her evangelical faith, her extremely conservative and pro-life church, her past pro-life donations and organizational aid, and her attempt to get the American Bar Association to abandon its pro-choice stance. There was nothing about how she would vote on particular cases and nothing about her attitude toward Roe v. Wade itself. He doesn't think Rove has even talked to her about that.

What was most interesting to me is the piece of information that hadn't been made public that Rove has now given him permission to reveal. He says there was a short list of potential nominees, and Miers was on it. She wasn't on some lower tier list. But the short list got narrowed down in two ways. One was that Bush really did want a conservative woman on the court, something I would defend from those who think her sex is irrelevant. It's surely irrelevant for most issues coming before the court, merely procedural issues or those flowing directly from a judicial philosophy arrived at in ways not tied much to gender. But there are ways women's voices have been not as prominent that having more women on the Supreme Court can help remedy, and there is some moral motivation to want to increase women's representation in spheres where they are underrepresented, including on the Supreme Court. So I see no reason why Bush shouldn't consider women more strongly. There should be no guarantee of specific seats on the Supreme Court for women, but we know Bush isn't thinking that way. He initially nominated Roberts for O'Connor's spot. If he's only going to get two appointments to the Supreme Court, however, he apparently feels pretty strongly about trying to get one of them to be a woman. I see no problem with that at all.

The other way the list got shortened is from people telling Bush they weren't interested. We knew already that Edith Clement took herself out of the running. It's even possible that Bush asked her before asking Roberts, and she turned him down. After Chief Justice Rehnquist died, she made it public that she wasn't interested in being nominated for the Supreme Court. According to Rove, not a few other top candidates did the same thing, citing the political environment, not wanting to put themselves and their families through the spectacle that would almost certainly arise. If the short list was narrowed down to just women, and most of them took themselves off, with Miers remaining, it explains a good deal more about why Miers was the pick, even if Bush had really wanted people like Priscilla Owen, Edith Jones, or Janice Rogers Brown. This revelation doesn't answer all the questions or respond to all criticisms raised against Bush for nominating Miers, but I think, if you put it together with some of the other arguments I've been making, you end up with very little to say in criticism of Bush, particularly if you keep in mind that there most likely wouldn't have been 50 votes in the Senate to remove the filibuster permanently for judicial nominees and almost certainly wouldn't have been 50 votes in the Senate to confirm someone who has explicitly indicated a desire to overturn Roe v. Wade, which most of the people conservatives have wanted for this appointment have done.

A Chilling Thought

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I just had an eerie realization about one possible direction the Miers nomination might go in. James Dobson has received private information that he says he probably shouldn't know. Senators Arlen Specter and Patrick Leahy have indicated that they would be willing to call him as a witness at the hearings to get that information out of him. I wonder if that's a good idea. It's clear that this piece of information is reassuring to Dobson that she'll vote the way he wants. It's not at all clear that it's what Specter and Leahy suspect it is. They seem to be thinking of it as some simple statement that she's made in the presence of Rove or someone he knows about how she would vote in particular cases. What's more likely is that it's a general perspective sort of thing that doesn't indicate how she would vote in particular cases but gives a strong inkling that it would be in a very conservative direction. Given what I'm about to say, I really hope it's just that.

What's just possible is that it's some very private piece of information that Senator Specter and Senator Leahy might not want to force out into the open if they knew what it was. It might well be about some past experience she had with abortion, maybe even way back in her youth before her evangelical and political conversions, and her current attitude about it is that she wishes abortion had never been legal for it to have been an option. Or maybe it's about someone very close to her in a way that affected her deeply, but the information doesn't make sense as an explanation for why it might somewhat reassure Dobson unless he had to explain some very personal details. Maybe Rove wasn't supposed to know this piece of information himself but passed it along in the interest of getting some key conservative leaders behind the nomination. I don't even want to think about any such possibilities, but I got chills when I realized that the way Dobson described it could just as easily mean something like this as it could something like what Leahy and Specter have in mind.

If they're wrong, and my fear is correct, then these senators might be about to do something that would undermine the very right to privacy that they so loudly base their view of the legal right to abortion on to begin with. This could be a dangerous direction to push, particularly from pro-choice senators. I hope it's just some general perspective thing that doesn't guarantee a particular vote on any case but makes a certain tendency likely. If it's not, and something very personal like this, then whoever ends up calling Dobson to the stand is really going to regret it.

Chris Matthews is on the air spreading misinformation again. He's claiming that there's no evidence that Saddam Hussein tried to get nuclear material from Africa. His evidence? There was no actual deal between Saddam and any African nation. So how is his conclusion supposed to follow? The fact that no one sold anything doesn't mean no one tried. Joseph Wilson's report confirms what the Bush Administration said, and the 9-11 Commission accepts the conclusion that Saddam tried unsuccessfully to get nuclear material, which is all Bush ever claimed. Reporter after supposedly unbiased reporter continues to pretend otherwise. They won't take Bush's statements for what they said but instead exaggerate those statements so that they amount to what the intelligence won't support.

It's a bit much to assume that this started with lies, but it's gone on so long, with so many people consistently correcting such falsehoods, that it's hard to keep believing that they're innocently spreading misinformation when they say that Saddam never tried to get nuclear material from Africa. This is getting really old, and those who seem to be so concerned about who might be lying when it's Republicans on the hot seat don't seem very worried about their own constantly repeated inaccuracy, one that all the evidence has refuted.

Elitism and Cronyism

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One element I didn't really get into in my criticism of attacks on the Harriet Miers nomination was the cronyism charge. It seemed rather elitist to me to suggest that she was unqualified simply because she didn't have academic or judicial experience, but I didn't have any carefully formulated thoughts. Beldar has more explicitly connected elitism and the cronyism charge. I pretty much agree with everything he says, except maybe the part about metaphysics being bad. I can't very well say something like that about my own line of work. I was going to write up a long post saying some of the things Beldar says, but Beldar says it better. I'm becoming more and more convinced that anyone criticizing this nomination on the grounds of cronyism has no argument or is simply making some sort of error either in what constitues cronyism or in the facts about Miers.

I suggest Eugene Volokh's much healthier (I mean healthier than the elitist ones Beldar criticizes) list of qualifications for a Supreme Court Justice, and I think President Bush is in a better position to judge whether Harriet Myers has many of those qualities than anyone else.



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