Tuesday, October 04, 2005

SCOTUS Confusion

I share the general surprise at the President's nomination of Harriet Miers. I posted a month ago about how I thought O'Connor's replacement would be chosen. I met Ms. Miers while I worked at CEA, when she was Deputy Chief of Staff. I would occasionally substitute for a colleague at so-called "deputies" meetings that she convened, during which the key assistants to the principal Presidential appointees would make sure that all of the offices within the Executive Office of the President were working in concert on the White House's agenda. I never observed her as a "pit bull in size 6 shoes." In fact, quite to the contrary, she was if anything exceedingly deferential in those few meetings I observed. That's no crime--there were some extremely talented people in that room (NEC, Legislative Affairs, NSC, and the Office of the Vice President always stood out). I was quite deferential, too. All of the positive things people are saying about her character ring true.

With no disrespect intended to Ms. Miers, I agree that there are probably a thousand resumes more impressive than hers for this position, and if you are accustomed to thinking of America as a meritocracy, that's enough to generate some disappointment. Stepping back from that initial reaction, I think that Todd Zywicki provides a useful way to think about what her nomination represents:

There are two possible ways to think about appointments, one is to appoint those who will simply "vote right" on the Court, the other is to be more far-reaching and to try to change the legal culture. Individuals such as Brandeis, Holmes, Warren, all changed both the Court and the legal culture, by providing intellectual heft and credibility to a certain intellectual view of the law. Thomas and Scalia have been doing the same thing for some time now, with their view of the law. This is, of course, precisely why Bork was taken down as well. Rehnquist, by contrast, may have changed the voting patterns of the Court but did not change the legal culture through intellectual leadership. Even worse, pick someone who supposedly "votes right" but has no developed judicial philosophy, and soon you have someone who doesn't even do that (Blackmun, Souter, etc.).

The opportunity that was lost was to help shift the Court through the intellectual argument. That's a fair point. The surprising aspect of this commentary, which is echoed in many places on the political right, is that there is doubt about Miers' likely voting patterns. Are you kidding? She has been on this President's staff for a number of years. How could anyone but a "Bush Conservative" tolerate that proximity for so long without having views that were wholly compatible? The conservatives have something to worry about in charges of cronyism, but I would be shocked to see a Justice Miers anywhere but in the Scalia-Thomas wing of the Court.

Blogsearch Technorati

9 comments:

Anonymous said...

surprise!

Anonymous said...

Based on reading your postings: for Libertarians or others who fear abuses of power, loss of liberty and more self-inflicted domestic violence in the wake of post 9-11, Clement would have been a more re-assuring choice. Based on stereotypes of TX and innuendos, one may not expect Miers to be similar to Clement on this.

http://www.commondreams.org/views/061700-102.htm

Clement does seem to be okay with firing or terminating people expeditoously. This might have satiated the hawks who so zealously uphold accountability.

Anonymous said...

a red flag expert

Robert Schwartz said...

Harriet Souter.

Roland Patrick said...

I think Prof. Samwick is probably correct. She's the one candidate who Bush really knows well, and if he is being truthful about wanting more Scalias and Thomases, then he probably is confident that that's what she'll be.

She reportedly vetted the Roberts nomination. I'm guessing that Bush liked the work, and saw something of a parallel to how he came to ask Cheney to run with him.

Anonymous said...

write it down...

scary-

Anonymous said...

Roland

I have quibbles...

vetting a nomination is not directly transferable or applicable to a position as a justice on the supreme court.

furthermore, nominating a judge is not parallel to choosing a VP running mate. a judge is nominated and a VP is elected. a justice is for life and a VP has term limits and re-election. there are numerous other differences - they require different skills and have different duties.

Bush's approval is plummeting. Why? How has he changed since the election? Has he realized this and made changes, or is he accelerating the bad decisions? Bush will pay the price for listening to the wrong people.

Roland Patrick said...

'I have quibbles...'

Not many of which have anything to do with whether or not Bush is confident that Miers will be voting with Scalia and Thomas.

If that was the goal, and he was impressed with how she went about securing such a person in Roberts, he might have observed similar traits in her. As I said, that's how he 'appointed' Cheney as his running mate. Cheney then stood for election, much as Miers will in the Senate.

Anonymous said...

You are right - there will be a Senate election.

And the decision to stick with Cheney as VP will continue to play out...