Not Buying It
Fisking Lifson on Miers Nomination
A strong defense of Bush's selection of Miers is articulated by Thomas Lifson at The American Thinker. However, it fails on several fronts...though I really, really *want* to believe.
There is a doom-and-gloom element on the Right which is just waiting to be betrayed, convinced that their hardy band of true believers will lose by treachery those victories to which justice entitles them. They are stuck in the decades-long tragic phase of conservative politics, when country club Republicans inevitably sold out the faith in order to gain acceptability in the Beltway media and social circuit. Many on the right already are upset with the President already over his deficit spending, and his continued attempts to elevate the tone of politics in Washington in the face of ongoing verbal abuse by Democrats and their media allies. They misinterpret his missing verbal combativeness as weakness.
While I agree that there are certainly thinkers on the Right for whom this would be an accurate description, I think it is clearly an over-reach when applied to the *near-universal* disappointment expressed regarding the Bush appointment across the spectrum of American conservatives. When Pat Buchanan and Bill Kristol are singing the same tune, you don't have much of an argument that some small sliver of grumpy conservatives are reacting badly. As Michelle Malkin notes, the outcry isn't top-down but rather bottom-up with rank-and-file Republicans and conservatives in an up roar over a nomination they do not understand. It isn't "verbal combativeness" or a lack thereof that has conservatives in a tither over Mier's nomination. It is the Mier's nomination itself. I'm all about waxing philosophic, but sometimes the outrage over the issue at hand is really just outrage over the issue at hand.
There is also a palpable hunger for a struggle to the death with hated and verbally facile liberals like Senator Chuck Schumer. Having seen that a brilliant conservative legal thinker with impeccable elite credentials can humble the most officious voices of the Judiciary Committee, they demand a replay. Thus we hear conservatives sniffing that a Southern Methodist University legal education is just too non-Ivy League, adopting a characteristic trope of blue state elitists. We hear conservatives bemoaning a lack of judicial experience, and not a single law review article in the last decade as evidence of a second rate mind.
While certainly some battle-hardened conservative politicos are spoiling for a fight, most of the rank-and-file (hey there!) just want a conservative jurist confirmed. And for those politicos, they want a battle because they believe the playing field is tipped in favor of the Republicans. That a battle over a solid intellectual *and* conservative jurist would not only be a fight we could win, but a fight that we should not shy away from. This president could certainly use a 'rally to the flag' moment for his base given the current state-of-the-world...instead he has compounded the problem. That can't be good.
The bit about supposed conservatives looking down their nose at someone with a lesser pedigree is simply fantasy. No conservative that I have seen has made Miers' pedigree a central tenet of their argument against the nomination. Indeed, it is more often mentioned as part of an exhaustive list designed to point out that cronyism may be a justified conclusion. In other words, it isn't that conservatives are arguing that a USSC justice has to have gone to Harvard, but rather there isn't even *that* argument in favor of Miers. It is offered to rebutt the ridiculous "the best person for the job" argument that Bush has advanced.
Now, conservatives have made a point that Miers' has not distinguished herself as a public intellectual in any aspect of Constitutional law. This goes to the question of competency...not elite snobbery. It isn't that you can't have a great legal mind with a considered and well-developed philosophy of Constitutional law at SMU. It is that there is literally no evidence that Ms. Miers' is that person. It is also important to note that basically all we know about Miers is her legal pedigree and employment history. Thin gruel on which to judge, to be sure, but that isn't the fault of critics. That is in the very nature of this choice and represents one of the most significant criticisms of the choice.
These critics are playing the Democrats’ game. The GOP is not the party which idolizes Ivy League acceptability as the criterion of intellectual and mental fitness. Nor does the Supreme Court ideally consist of the nine greatest legal scholars of an era. Like any small group, it is better off being able to draw on abilities of more than one type of personality. The Houston lawyer who blogs under the name of Beldar wisely points out that practicing high level law in the real world and rising to co-managing partner of a major law firm not only demonstrates a proficient mind, it provides a necessary and valuable perspective for a Supreme Court Justice, one which has sorely been lacking.
Ms. Miers has actually managed a business, a substantial one with hundreds of employees, and has had to meet a payroll and conform to tax, affirmative acttion, and other regulatory demands of the state. She has also been highly active in a White House during wartime, when national security considerations have been a matter of life and death. When the Supreme Court deliberates in private, I think most conservatives would agree that having such a perspective at hand is a good thing, not a bad thing.
I'm happy that Ms. Miers has experience in the real world and I am the last person to denigrate such experience. There are a host of experiences that can inform ones' viewpoint on life. But the above smacks of a diversity argument...and one difficult to make a consistent case for. Afterall, experience in the business world is hardly the be-all and end-all of relevant experiences that might be beneficial. I understand that rock climbing provides enthusiasts with experiences that broaden their perspectives and make for a greater willingness to consider alternative perspectives (well, maybe us conservatives aren't looking for rock climbers after all). The military provides discipline for the mind and can expose one directly to the threats to our national security. A cop has direct experience in dealing with crimminals and the effect that judicial conceputalizations of civil liberties have on their ability to enforce the law.
I could go on and on...and that fact should highlight the problem. There are only 9 justices on the Supreme Court. There's a reason that we emphasize experience with constitutional law and legal experience. Because that's the relevant experience for the job. You could justify almost any selection using the criteria established here. Managing a business might provide Miers with a fresh perspective or it may not. But what is certain is that there is no way to accomodate the universe of possibly relevant experiences on a 9 person court. And note, we have no idea whether Miers has taken the lessons that Lifson seems to think she has been exposed to. There are a diversity of ideas about constitutional law in the business world and a host of management styles. In essence, this just shifts our focus away from the relevant legal philosophy (that Miers lacks) to the tangential experience she has in the business world (that we don't know much about).
Finally, it isn't her legal experience that forms the crux of the conservative criticism of this nomination. It is the fact that her legal career tells us nothing about her constitutional philosophy...and indeed provides little reason to think that she has generated one in any detail. Certainly nothing in the jobs she has held would require her to do so.
Other conservatives are dismayed that the President is playing politics (!), rather than simply choosing the “best” candidate. But the President understands that confirmation is nothing but a political game, ever since Robert Bork, truly one of the finest legal minds of his era, was demonized and defeated.
I agree that this is a political game and, maybe I'm reading the wrong conservatives, but I don't see anyone out there arguing that Bush shouldn't have taken into account the politics of confirmation in making his nomination. This brings me to one of my key criticisms of this take. The point isn't that the president had to nominate an intellectual, or someone with reams of judicial experience, or someone well respected as a top legal mind within the legal community, or someone with a stellar legal pedigree, or someone with a substantial track record on constitutional issues, or a candidate that was not a diversity pick..it is that there were *numerous* nominees that fit each of these bills to a tee...and the president instead chose someone who meets NONE of them. If the president wanted a diversity pick, there were numerous available. If he wanted someone outside of the elite legal community, there were those available as well. The point that conservatives keep comming back to is that we know absolutely nothing about Miers' philosophy...and what we do know hardly screams "HERE IS A SUPREME COURT JUSTICE!"
In part, I think these conservatives have unwittingly adopted the Democrats’ playbook, seeing bombast and ‘gotcha’ verbal games as the essence of political combat. Victory for them is seeing the enemy bloodied and humiliated. They mistake the momentary thrill of triumph in combate, however evanescent, for lasting victory where it counts: a Supreme Court comprised of Justices who will assemble majorities for decisions reflecting the original intent of the Founders.
This is a false dilemma. In essence what Lifson is saying here is that Bush had to make a stealth appointment, someone that we know nothing about, in order to get a constitutionalist judge on the court. Ummm...did he already forget about John Roberts? Is he really saying these two appointments are functionally equivalent. Sure, more bloodshed was to be expected...but that was because of the potential shift on the court and not particuarly which nominee. But the fact is, even assuming that there are some conservatives out there just spoiling for a fight, there is little reason to think that they couldn't have their cake and eat it to. 55 votes is...well...55 votes.
Rather than extend any benefit of the doubt to the President’s White House lawyer and counselor, some take her lack of a paper trail and a history of vocal judicial conservatism as a sign that she may be an incipient Souter. They implicitly believe that the President is not adhering to his promise of nominating Justices in the mold of Scalia and Thomas. The obvious differences between Souter, a man personally unknown to Bush 41, and Miers, a woman who has known Bush 43 for decades, and who has served as his close daily advisor for years, are so striking as to make this level of distrust rather startling. Having seen the Souter debacle unfold before his very eyes, the President is the last man on earth to recapitulate it.
This is one of the better arguments he makes and I don't have much to quibble with it. I agree that there is good reason to suspect that Bush has taken pains to make sure he doesn't appoint a Souter. I pray that he is right. But the fact remains, this was completely unnecessary. I shouldn't have to be praying or hoping or wishing that Bush hasn't bungled (like he bungled with Brownie, and Powell, and Mineta, and Tenet, and...errr..). We could have had a nominee that would inspire the base and the rank-and-file activists because they would obviously be a conservative jurist to pretty much everyone. Yes, the Democrats would make hay (good, not bad for us politically, Tom). Yes, it is unlikely that nominee would get as many votes as Roberts. But we would get them on the bench....and we wouldn't have had to trick everyone in the U.S. in order to do it.
He anticipates and is defusing the extremely well-financed opposition which Democrat interest groups will use against any nominee. Yes, he is playing politics by nominating a female. A defeated nominee does him and the future of American jurisprudence no favors. By presenting a female nominee, he kicks a leg out from under the stool on which the feminist left sits. Not just a female, but a career woman, one who has not raised children, not married a male, and has a number of “firsts” to her credit as a pioneer of women's achievement in Texas law. Let the feminists try to demonize her.
I'm sorry, this is nothing more than a chimera. This isn't 1989. Republicans control the Senate. The Democrats, no matter how strident their supporters, cannot defeat this nominee. I doubt the Republicans would have to invoke the nuclear option, because the political reality faced by red state Democrats up for an election would have prevented them from signing on to a filibuster of any length. This is nothing more than defeatism disguised as clever strategy. I think it is apparent that a fight on judges favors conservatives politically...and it is a fight we would certainly have won. Simple as that. We could have had a fabulous nominee like Michael McConnell and he would have been confirmed. Whatsmore, the Democrats likely would have made themselves look foolish in opposing him. The President didn't have to choose between the right candidate and a candidate who would win. The right candidate would have won. And whatsmore, it would have redounded to the president's benefit politically. Now the opposite has happened (and predictably so!).
The President must also prepare himself for a possible third nominee to the Court. With the oldest Justice 85 years old, and the vagaries of mortality for all of us being what they are, it is quite possible that a third (or even fourth) opportunity to staff the Court might come into play. Defusing, demoralizing and discrediting the reflexive opposition groups in the Democrats’ base is an important goal for the President, and for his possible Republican successors in office.
I don't see how running from a well-qualifed and objectively conservative nominee is supposed to flumox the Democrat opposition groups. If anything, you would think it would embolden them.
Then there is the small matter of actually influencing Supreme Court decision-making.
This president understands small group dynamics in a way that fewif any of his predecessors ever have. Perhaps this is because he was educated at Harvard Business School in a legendary course then-called Human Behavior in Organizations. The Olympian Cass Gilbert-designed temple/courtroom/offices of the Supreme Court obscure the fact that it is a small group, subject to very human considerations in its operations. Switching two out of nine members in a small group has the potential to entirely alter the way it operates. Because so much of managerial work consists of getting groups of people to work effectively, Harvard Business School lavishes an extraordinary amount of attention on the subject.
Look, I'm not going to entirely dismiss the idea that the kind of business work Miers has done might be advantageous on the Court...but I'm going to come close. The Supreme Court isn't a selected group of employees given some top-down goals and told to effectively develop task-oriented solutions that meet those goals. The Supreme Court is very much a small legislature. Each individual has the power of their own vote. Worse in terms of bargaining leverage, not much logrolling is possible. IOW, each justice represents their own little fiefdom and I very much doubt that, no matter how persusasive Miers is, that she'll have Breyer joining majority opinions he otherwise would not have but for her presence on the court.
A congressman is more likely to have had experience in dealing with the Supreme Court enviornment than anyone working in business (or in the military, for that matter). The Court consists of highly-intelligent and experienced individuals with predispositions towards most issues of the day. Miers would wield no power over them whatsoever. Count me skeptical that she has some magic wand in her belt that is going to affect agreement and consensus in a body that has consistently trended away from exactly that.
One of the lessons the President learned at Harvard was the way in which members of small groups assume different roles in their operation, each of which separate roles can influence the overall function. The new Chief Justice is a man of unquestioned brilliance, as well as cordial disposition. He will be able to lead the other Justices through his intellect and knowledge of the law. Having ensured that the Court’s formal leader meets the traditional and obvious qualities of a Justice, and is a man who indeed embodies the norms all Justices feel they must follow, there is room for attending to other important roles in group process.
This is more of the same. Justices don't have 'different' roles but rather the same roles (voting). Bargaining certainly occurs amoung the justices over the legal product, but it is an unquestioned unique enviornment in which these decisions are reached. Even the Chief Justice, who at least has a nominal leadership role, has little more power than an associate justice in reality.
Unfortunately, most of these arguments represent a tangent from the source of the fundamental criticism leveled by conservatives at this president's choice. The fact of the matter is that he had within his power to make a transformative choice. To place a well-qualifed and objectively conservative jurist on the bench whose credintials would be unquestioned and who would clearly represent a choice in the line of Scalia and Thomas--a campaign promise fullfilled and a base excited into action.
Lifson exaggerates the political difficulty of getting an apparent conservative jurist confirmed and ignores the political reality that a poor choice (in the eyes of the conservative base) presents for the president and the Republican party. He misrepresents the nature of the conservative opposition to Miers and he ignores the fundamental objection: we don't know what kind of justice Miers will be. Many things can be taken on faith...a life-time appointment to the highest court in the land for a duration anywhere from 15 - 30 years ain't one of em. And, as another critic has noted, this is fundamentally an unforced error. It wasn't necessary. The president had the votes. At no time in the past (and doubtful anytime in the future) were the stars so aligned for a 'perfect storm' appointment. Instead the president chose to visit a hurricane on the shores of his conservative base (hey, at least we can't blame global warming!). This was an opportunity lost...every way you slice it.