Tod Lindberg

Harriet Miers and judicial politics

Posted by Tod Lindberg on October 11, 2005

The Washington Times

I was busy into the early afternoon following President Bush’s announcement of his nomination of Harriet Miers to the Supreme Court last Monday. So, it wasn’t until about 2:30 p.m. that I clicked into the blogosphere to see what the initial impressions of the nominee were on the right side of the political spectrum.

Only then did I discover that I was much, much too late for initial impressions. In the few hours I’d been off-line, the reaction to the Miers nomination had crystallized, hardened and petrified. Traces of ambivalence or provisional judgment were all but gone. The few people trying to offer a neutral, let alone a positive view, were dying the death of a thousand links. Such division over the nomination as still remained seemed to be over whether it could best be classified a fiasco, a disaster or a cataclysm.

OK. My initial impression of Miss Miers was “Who? Oh, yeah.” Beyond that, I, like almost everybody else, had only her official biography and follow-up press reports (not necessarily reliable) to go on.

Now, with respect to the biography, there are a few points that seem to be underappreciated in the current debate (if that’s what you’d call it). First of all, the ascent to co-managing partner of a 400-lawyer firm, not neglecting that swaggering Texas machismo “here’s a pat on the head for the little lady” effect, is a long climb up a slippery pole. Moreover, it requires no specialist knowledge of the ins and outs of the Texas legal scene to comprehend that the presidency of the Texas Bar Association is a much sought-after prize. When people who have already ascended to the heights of a profession decide to compete as well for pure prestige, and then win, the result is hardly negligible. And one hears from lawyers that a specialty in commercial litigation is not a practical career path for the addle-witted. So it would surprise me not in the least if Harriet Miers is a pretty formidable hombre.

That said, she is no John Roberts, someone well known and loved by everybody on his side of the partisan divide, some on the other and most in between. If you have praised John Roberts for his many charms, you will need to find other charms if you wish to praise Miss Miers. What was striking last week was the swift and certain verdict from conservatives that no competing set of charms was possible in the case of Miss Miers.

The conservative community wanted a stellar nominee and wanted Mr. Bush to fight. It seems likely to me that Mr. Bush placed a high value on avoiding the prospect of a High Court “nuclear option” scenario, in which Republicans in the Senate queued up a simple majority to change the filibuster rule in order to confirm a new justice. There are three plausible reasons for that: First, there would be a certain taint on a justice who assumed the bench on the basis of a rule change. Second, the nuclear option is itself an escalation – an escalation in response to a prior escalation in the form of a filibuster of a nominee, but an escalation nonetheless. Third, how certain is it that there are 51 GOP votes to change the rule? Is there really a nuclear option? In the course of his consultation with the Senate, Mr. Bush heard of Senate minority leader Harry Reid’s now-notorious affection for Miss Miers. So to him, this perhaps looked like an opportunity to win without a big fight. He took it.

A fight with the left, that is. The question for connoisseurs of politics now is this: Can the right make Mr. Bush pay a significant political price for his selection of Ms. Miers? This is more than a question about the blogosphere and the op-ed pages. Can the opposition to Mr. Bush over Miss Miers turn into declining approval for Mr. Bush among his conservative base, the bulwark of his support? Can the Miers opposition find real support for its position among Republican senators – that is, willingness to vote against Mr. Bush’s nominee?

There is a certain contempt for the Senate detectable in the conservative response to Miss Miers. But at the moment, the decisive nexus of the Miers nomination is precisely the relationship between the White House and individual senators. Can the conservative opposition interpose itself in a way that thwarts Mr. Bush? Will it really try? And if not, what is the political salience of the sound and fury? As for Miss Miers, I wish her the best. Even before her nomination, she had probably been around long enough to notice that Washington judicial politics is unattractive even on a good day – and there aren’t many good days. It’s nothing personal, but treating people like human beings isn’t really part of the process.

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