Wednesday, October 12, 2005

In the Middle: Harriet Miers

From: Eric Berlin @ Center-Left
To: Phillip Winn @ Center-Right
Subject: Harriet Miers

I'd like to propose a simple question this week that's likely not so easy to answer from my side or yours:

Should Harriet Miers be confirmed as Associate Justice on the United States Supreme Court?

The political winds are shifting. The latest blast finds some conservatives at significant odds with President Bush for the first time. For those of Democratic leanings, it might be tempting to make strange bedfellows with the likes of George Will and Charles Krauthammer by joining in the growing chorus now slamming the president's nomination.

Increasingly, it's looking as though a great deal will play out during the confirmation hearings. Though he likely regretted it and later backed off his statement, even Senate Judiciary Committee Chairman Arlen Specter (R – PA) stated that Miers might do well to take a "crash course in constitutional law."

Shouldn't anyone nominated to sit on the highest court in the land be somewhere in the neighborhood of Expert (if not Wizarding) Level when it comes to constitutional law? Cases that come before the Supreme Court require spectacularly potent intellects and experience gained over a lifetime of considering such matters. In the wake of Katrina and the failures of FEMA, Bush had to know that he'd be vulnerable to charges of cronyism.

So should moderates and progressives want Miers to get confirmed? It's a complicated question, but I'll open by saying that I think the consensus will be: let the Republicans bruise and batter one another, but hope that Miers makes it through… because the alternative could be far worse.

And then we will promptly set the hope-ometer to Breathtakingly Optimistic that she'll turn out to be far more Souter than Scalia once on the court.

From: Phillip Winn @ Center-Right
To: Eric Berlin @ Center-Left

You're right, that's not very easy to answer. I'm certainly glad that I don't have to vote one way or the other on Harriet Miers, because I really don't know what I would do.

Let cut to the chase here, shall we? Hardcore conservatives want the two new justices to tip the scales on Roe v. Wade, so that a future case goes 5-4 to overturn rather than 5-4 to uphold, while hardcore liberals want to preserve the status quo with regard to abortion.

There are many other issues with which the Supreme Court deals year in and year out, but this is very nearly the only one that is considered when evaluating a nominee for the court, and all of the other arguments and questions are designed to get at the issue from odd angles.

I happen to think that Roe v. Wade serves conservatives more than liberals, though most people don't see it that way. To the conservatives ready to reject Miers for fear she won't be firmly in their camp on Roe v. Wade, I say this: Be careful what you wish for, you just might get it!

In the real world, though, abortion isn't nearly the only issue of importance.

You asked a very specific question about qualifications for Supreme Court Justice. I don't know the answer. Once someone puts on those black robes, they seem to become "something else." We suddenly expect them to be impartial on issues about which you and I feel passionately, and to never make mistakes. In reality, politics plays a much stronger role in decisions than any of us like to think about, and the court makes mistakes constantly. What percentage of the court’s decisions have ever been unanimous? I don't know the answer, but I bet it's a very, very low number. Does that mean that there tend to be members of the court that are stupid? Or that different judicial philosophies, consistently applied, result in different decisions? Or both? Is one worse than the other?

Supreme Court Justices have come from many different walks of life, and some have seemed more qualified than Miers and tanked badly, while others have been purely political appointees and done well with time. If she lacks experience, can Miers recognize that and learn on the job?

That may be the biggest question of all. Not, "Can she think?" but, "Will she think for herself?" Conservatives with their eyes on "the prize" for the first time in a long time are desperately wondering if she'll go with the party line on abortion, and I think they're missing the point.

From: Eric Berlin @ Center-Left
To: Phillip Winn @ Center-Right

There would indeed be a seismic shift in the political landscape if Roe v. Wade was decisively overturned by a conservative Supreme Court. While social conservatives would lose one of their favorite and most enduring issues, a broad swath of voters would surely be ignited, if not enraged, for some number of years to come. And I'm not even going to get into the real world implications of such a decision, which would, in the very least, be dreadful. From a practical and policy standpoint, it serves conservatives best to try and chip around the edges of Roe.

But back to the main point. Will Harriet Miers serve the interests of the Bush administration as well as those of the social conservatives, who are nearly ready to make her walk the judicial plank?

I think it's important to remember that the conservative movement, which is most often traced back to the Barry Goldwater days (George Will went further on This Week by half-jokingly crediting National Review founder and prolific writer William F. Buckley, Jr. for sparking the movement that presided over the fall of communism), felt at the precipice on triumph. Roberts as the new Chief Justice replaced another conservative in recently deceased Chief Justice William Rehnquist. That left the retiring Justice Sandra Day O'Connor to be replaced, a key swing vote on many important issues before the court – and not just abortion rights. This was the moment, as "Paleocon" Pat Buchanan and others call it, for a return to "constitutionalism," or a tightly defined construction of the Constitution. Roe was likely viewed by many as the crown jewel in a conservative movement begun during an age of liberal social programs and government largesse.

I believe President Bush badly misinterpreted this historic moment. While Bush presidency architect Karl Rove, Vice President Cheney Chief of Staff Lewis "Scooter" Libby, and others were busy defending themselves from investigations, George W. Bush (perhaps influenced by Chief of Staff Andy Card) decided to go with his instincts. And that meant choosing a hyper-loyal associate with whom he felt comfortable. Bush's instincts also called for maximum secrecy and an element of surprise, which may have come from some inclination to prove that he's not married to the social conservative camp.

By nominating an arguably unqualified non-judge with no paper trail and strong support from only George "Trust Me" Bush himself, most conservatives feel as though they've been served thin gruel and not he filet mignon they'd been cooking up for forty-odd years. Pat Buchanan summed up this sentiment on Meet the Press:

"We were on the precipice of victory in the battle to return the Supreme Court to constitutionalism," Buchanan said. "And the president of the United States picks a woman with no known judicial philosophy who has never taken a stand on any of these great questions, who has never written or said anything about Supreme Court rulings, and we have been told to take it on faith."

While Miers may well be a "stealth candidate" who will follow Justice Antonin Scalia into the promised land of conservative judicial activism, no one — on the left, right, or in the center — can be sure.

Phillip, you asked, "If she lacks experience, can Miers recognize that and learn on the job?" I think most would argue that the American people needn't take this chance if there are dozens of qualified judges (or other constitutional scholars, politicians, etc.) who would hit the ground running with a proven track record.

But from my center-left perspective, I'm left feeling dazed and ambivalent. The long term Machiavellian play from the Democratic side is to allow her to get through but to hope for a further weakened Republican majority in the process.

From: Phillip Winn @ Center-Right
To: Eric Berlin @ Center-Left

I go back and forth on this, so let me tell you both of my views.

One the one hand, I wonder if Bush blew it big-time. We really don't know anything about Harriet Miers, but what little is leaking out makes her sound like a relatively weak candidate. It could be that our collective expectations have been raised by Chief Justice Roberts, who was a surprisingly strong nominee, but even so, the appointment of Miers seems to be purely political. If so, however, why pick a candidate about whom both sides seem so uneasy? It doesn't make much sense, and that's unlike President Bush.

On the other hand, I wonder if this is all a big political game. Perhaps Bush is gambling on an unknown, hoping that he can keep her views quiet until she's confirmed, and then knowing that she'll vote exactly the way conservatives want her to. His biggest risk, then, is that the few conservatives that are in on the secret will accidentally leak the plan and let the whole country know that Harriet Miers is firmly on the hardcore conservative side. His second-biggest risk is that Miers will surprise him once confirmed.

Frankly, neither option fills me with confidence!

When it comes down to it, I think that Miers is probably a "stealth candidate," a committed conservative who is masquerading as a riddle wrapped in a mystery inside an enigma. She'll be hard-pressed during the confirmation hearings as both sides do their best to untangle the knot. And in the end, she'll be confirmed.

I think you're overly pessimistic on Roe v. Wade, by the way. Assuming I'm right and Miers votes with the majority to overturn that decision, I think that you would see, nearly overnight, the vast majority of all 50 states pass state laws legalizing abortion. And this time, there would be no mysterious cabal of black-robed justices against which to inveigh in fundraising literature! The pro-life organizations would have to fight fifty battles in fifty states, and against duly-elected legislatures. In addition, I think several states would quickly put the issue to vote in elections, and that the elections would almost certainly maintain legalized abortion. My hope is that we might see more sensible laws than we have now, because right now pro-choice extremists are carrying the day. But overall I suspect that the elimination of Roe v Wade would essentially ensure abortion as "settled law" in most states.

From: Eric Berlin @ Center-Left
To: Phillip Winn @ Center-Right

The more I think about it, the more I'm convinced that no one — Democrats and Republicans both — knows what Miers would do once on the court. While this is true of many Supreme Court appointees, Harriet Miers is certainly an extreme case.

While we both agree that Miers may well be a stealth candidate, I can't help thinking that this nominee was a poor political calculation by a White House wracked by scandal and vulnerable to charges of incompetence (see: the war, the Gulf region) and, significantly,

George W. Bush has been likened to a "riverboat gambler" for his bold and sometimes brash approach to politics and governing. From neoconservative ideology in the Middle East to supply side economics on the home front, Bush has never been one to back down from a challenge. With the case of Harriet Miers, I believe that Bush badly miscalculated what he saw as a safe bet: an attorney who was the first woman to head the Texas bar association and who had almost no paper trail for Democrats to pick through.

The challenge from the right on the Miers nomination blindsided the Bush administration, perhaps when it least expected it. I'm reminded of a scene from Goodfellas, one of my favorite movies. Henry Hill, a mobster with both the police and his fellow wise guys out to get him, explains to the audience that your friends — the people who have loved and taken care of you your whole life — seem to come after you when you're at your weakest and in need of the most help.

So, back to the original question: do I think Harriet Miers should be confirmed to the Supreme Court? I can't say with any certainty, just like everyone else! I hope that the Senate confirmation hearings are meaningful. I expect the nominee to get grilled from both sides on her experience and credentials, and she should be. I think the burden is on Miers to prove why she should get awarded this lifetime appointment.

And if she can't prove it, I think all Senators have an obligation to vote against her. For Democrats, that might mean facing a Scalia clone on the next go round, but there are really no risk-free options anyway.

By the way, you bring up an interesting point about Roe, Phillip. I certainly see your point, but I think you might be overly optimistic, particularly when considering the makeup of state legislatures in some culturally conservative states. Personally, I wouldn't want to take the risk of Roe v. Wade getting overturned!

From: Phillip Winn @ Center-Right
To: Eric Berlin @ Center-Left

If reports in this morning's New York Times and Washington Times hold up, then clearly you are right: President Bush made a serious political mistake in nominating Harriet Miers.

I'm not at all sure that she isn't the right person for the job. I'm still half-convinced that the only reason these Republicans are pushing so hard against her is to draw Democrats into accepting her nomination without serious question. Or perhaps these are the Republicans who haven't yet had (or can't be trusted with) a secret briefing with the White House on Miers as a stealth candidate.

It is interesting that you think the burden should be on Miers. Would the same be true of a relatively-inexperienced Democratic nominee, I wonder? Life has a funny way of demonstrating double standards, and I suspect that statement might someday come back to haunt you!

Miers has a law degree from SMU. Here in Dallas, SMU is well-respected, though clearly it isn't quite Harvard Law School. She practiced law for many years, but mostly commercial litigation, so she has little experience with U.S. constitutional law. She has, however, been White House Counsel for about one year. What does this relative lack of experience mean?

I don't think it means much. As I mentioned before, we tend to view Supreme Court Justices as somehow different from the rest of us, but they usually aren't. Historically, I think that there have been less-experienced nominees than Miers who served our country well, if not with distinction. From what I understand, less-experienced Justices tend to vary quite a bit from their initial views over time, which would suggest that Miers may move more to the left the longer she serves on the court. But that still leaves the big question that few people want to really come right out and ask: How will she vote on abortion?

By the way, from my perspective, my view that nearly all 50 states would pass laws protecting abortion on demand isn't "optimistic" at all, but rather a pessimistic realism.

In The Middle is an attempt to focus more on what unites us than what divides us. Can two reasonable people from opposite ends of the political spectrum put aside partisanship and meet in the middle? We think so. A topic is picked, e-mails are exchanged, and the results are published here.

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In the Middle debuted last week, with Bill Bennett’s controversial remarks on abortion taking (the middle of) center stage.

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