Miers, post-mortem

Well, I'm going to address the Miers nomination finally, post-mortem (in this case never might perhaps be better than late, but I'll post it anyway). For those of you who were pro-Miers: please remember that I am NOT a Republican and therefore don't think anyone (including the President) ought to expect me to owe loyalty to Dubya, or would characterize my willingness to criticise him and my refusal to follow his lead blindly, as "back-stabbing." At least, if you're willing to accuse me of disloyalty to a team to which I have never pretended to belong in the first place, I don't much know how to go about defending myself and don't intend to waste my breath trying.

I didn't feel too strongly about the Miers nomination, but insofar as I had an opinion, I was always opposed to it, on three grounds -- all of which are procedural and philosophical and general, and none of which have to do with any doubts as to this particular candidate's character, intelligence, or good intent. ...continue reading...

1. I believe that she should have been disqualified before she started, on the grounds that she was too deeply involved with and beholden to the President.

2. I believe that one of the worst evils any political group has ever inflicted upon this nation, is the Democratic Party's poisoning of the nomination process for the Supreme Court. (Obviously I'm not any more a Democrat than I am a Republican.) I believe that the "stealth nominee" is abhorrent to the open process of government in this country. Until the Miers nomination I had believed that blame for the practice of stealth nominees lay overwhelmingly with the Democratic Party; but the Miers stealth nomination was the sole and full responsibility of the Republican Party, which in my view utterly disgraced itself thereby.

3. I object strenuously to any form of discrimination, including reverse discrimination, where the characteristic discriminated upon is irrelevant to the qualifications intrinsic to the position filled; and I think interpretation of the law is one of the arenas in which hardly anything could be more irrelevant than the presence or absence of a penis beneath the robes. Hair color, I suppose, might be less relevant.

I realize that there is no Constitutional restriction on having the President's personal lawyer be appointed to the Supreme Court, but just because the Consitution says you're allowed to do something, doesn't make it a good idea. Especially with the Bush family, which has elevated the secondary virtue of loyalty to the inappropriate status of summum bonum, a loyalist appointment threatens the proper separation of powers.

I can't remember which blogger (or commentor) complained that the Senators who requested documentation of Miers's legal advice to the President, had shown disrespect for executive privilege, but I have to say, with all due respect, that that commentor was an ass. Now in what follows I speak of what was objectively implied by the President's actions, not of what the President's actual emotional state was; as you will see shortly I think the people who deserve the blame for the whole mess are much more likely to be the Senators than the President, and that I suspect the President has more respect for the Senate than a lot of Republican Senators do. But, objectively speaking, it is the President himself who showed contempt for the separation of powers on which executive privilege is grounded, by nominating his long-time personal lawyer to the Supreme Court. Unless "advice and consent" is to be interpreted to mean "rubber-stamping the President's whim" -- which, to be frank, seems to be precisely the role some conservative bloggers seemed to think was the only appropriate role for a Republican Senate under a Republican President -- then the Senate has to be able to make an informed, independent decision based on the candidate's record. If the bulk of the candidate's record is something that can't be made available to the Senate without violating executive privilege, then the Chief Executive bloody well ought to have the sense to go find a different candidate. "Put my nominee in, but you're not allowed to inspect her records from the last ten years," is an attitude that to my mind shows a deep contempt for senatorial privilege. The senatorial request for her records seems to me to have been a tactful but pointed rebuke of the President's presumption, on the part of a couple of Senators who still take seriously their responsibilities under the Constitution.

Having said that, I think the whole disgraceful mess is probably the Senate's fault rather than the President's. Actually, I don't know whose fault it is and don't feel a strong need to assign blame. But if you force me to put money on where I think the blame is most likely to lie...well, I think I understand -- probably I'm wrong but this is my best guess -- where the President was coming from, largely because the nomination of Miers was so out of character when you look at his other judicial nominations, in which he has certainly proven himself to have no fear of a good fight. I believe -- and if I'm wrong about this then so be it, but this story makes more sense to me than any other I can construct in light of what's known publicly -- that this nomination was not the President's fault. I believe that Alito was the first choice of both the President and Harriet Miers all along, but that the Viagra-deficient Mini-Me's in the Republican Senate begged him to stick to a stealth nominee so that they wouldn't have to actually stand up to the big bad Democratic minority, at whose displeasure the typical Republican Senator apparently wets himself. To those of you angry because you think the President had a right to his own first choice: feel free to be angry, but I think you should be angry at the Republican Senators for pressuring him out of his first choice of Alito and nominating Miers instead. I think the President's first choice is precisely the present nominee. And when Miers's performance on the questionnaire and in her private meetings with Senators began to make it clear that there was a serious risk that her performance in public hearings would make Republican Senators look bad, they waffled right back out, backtracked, and left the President and Miers hanging high and dry. That is what I think happened...not that I actually know, of course.

Be that as it may, once the decision was made to disqualify all candidates whose public record made it possible for the Senate to determine the candidate's approach to Constitutional interpretation, the President was left with only two approaches to selecting a nominee, both of them terrible approaches.

1. He could appoint somebody whose public record was ambiguous and with whom he did not have an intimate personal relationship. (Of course I don't mean sexual intimacy there.) Been there, done that, every Republican in America knows better than to go back to Souterville.

2. He could appoint somebody who was habitually secretive about her own views, so as to keep the Democrat obstuctionists from having anything solid to grab on to, but who was a close enough personal ally for him to know her well enough to be confident about how she would vote. Which is precisely the route he took, and which was a bad one, in my view, for several reasons.

First, if you do that, then the whole point of your choice is to keep out of the Senate's hands any evidence that would let them definitely establish what sort of justice the nominee would be. There is a philosophical problem with that, in that such an approach is clearly intended to eviscerate the Constitutional role of the Senate as a legislative-branch check on the executive power. Those conservatives who felt that the President had the right to put whomever he wanted on the bench with nothing but supine acquiescence from the Senate, do not seem to me to place sufficient importance on the checks-and-balances principle fundamental to the American Constitution. Yes, yes, I agree with you Republicans that the Democrats have suborned both the Court and the nomination to their purposes in a despicable fashion, and that they habitually abuse their Constitutional role of advice and consent. But think about it. I have always understood the Right's principal objection to the Left's legislation from the bench, to be precisely this: there is a right way and a wrong way to change the Constitution. Amending the Constitution is the right way. Stacking the Court with liars who will announce that we all have to pretend from now on that the Constitution says what the Left wishes it said (but that it doesn't in fact say) is the wrong way. Correct?

Well, there's a right way and a wrong way to overcome one party's abuse of the Constitutional role of positions they have won. The right way is to vote the bastards out of those positions so that they lose the ability to abuse their power. The wrong way is to attempt to subvert the Constitution in your own turn. Two wrongs do not make a right.

What's truly absurd is that the American people have proceeded in the correct and Constitutional manner: they voted the bastards out, and placed the Republican Party in full control of the process. Whereupon the President and Republican Senate chose...to go ahead and subvert the Constitution with a super-stealth nomination anyway, even though the American people had gone to rather a lot of trouble to make that unnecessary. And given that the President in prior judicial nominations had refused to back away from fights, I find it very hard to believe that it wasn't the Republican Senate who insisted on the President's depriving them of any meaningful role of advice and consent, precisely because they didn't want the responsibility for standing up to those mean old Democratic Senators.

There was also, in this particular case, a political problem, namely that it is difficult for such a nomination to succeed if the President's party does not have complete trust in him; but this President's habit of violating conservative principles in domestic policy has caused him to forfeit much of that trust. Furthermore, aside from the fact that I believe the advice and consent of the Senate should be something more than a child's game of Let's Pretend, there's also the fact that it's practically impossible for a President to know anybody that well unless they are close enough to him to raise (for me personally) insuperable conflict-of-interest issues. If the President is not allowed to nominate somebody with a clear public record upon which both he and the Senate can judge the candidate, and he's not going to appoint somebody whose behavior on the Court will be highly unpredictable, and he's not going to appoint somebody who is in his inner circle so that he can be sure they'll behave themselves once they don the robes, then whom exactly is he supposed to appoint?

Thus to me, and to at least some of the vocal anti-Miers bloggers, it seems clear that the only healthy process is one in which the nominee has reasoned about the law in public on numerous occasions, giving the Senate and the American people a reasonable base of data from which to evaluate the nominee's likely approach to reasoning about the law from the Supreme Court bench. A "trust-me" nomination seems, to me, to be a deeply unhealthy approach to nomination and also seems to me to make an unConstitutional mockery of the Senate's role of advice and consent. And the Miers nomination was clearly a "trust-me" nomination.

Bush got my vote in 2004 -- the first time he'd run for office in a long time without having this Texan vote against him -- in large part because I believed it was critically important to restore both a Supreme Court that stuck to its appropriate Constitutional role and a healthy Supreme Court nomination process; and I believed that the Democrats had demonstrated that as long as they were in control of Washington the nomination process and the Supreme Court's decisions would continue to be perverse. On this particular issue my interests and the Republicans came close to being aligned (not perfectly, though, as I'll explain some other time). It was, therefore, a disappointment to me when he and the Senate, after the American people gave them the power to choose Supreme Court justices over the obstructionism of the Democratic Party (and that is a very large part of why the American people put the Republicans in charge of all branches of government), chose to retreat even more deeply into stealth than they had ever gone before. At least some of the conservative bloggers whose heads exploded the moment Miers's name was made public, had fought long and hard to make stealth nominations unnecessary, and the President and Senate flipped those people the bird. There is no question that the Rebel Alliance perceived this latest stealth nomination as a betrayal, just as much as the pro-Miers crowd perceived the Rebel Alliance's outrage as a betrayal in its turn.

There's another way, too, in which the Miers nomination was handled terribly by the White House. The conservative movement believes, very strongly, in the principle of meritocracy. (Whether or not they live up to it is a very different matter, of course, but it is an essential element in their self-perception, and any Republican President who wants to retain the loyalty of his base needs to reinforce that self-perception, not call it into question. Conservatives very badly need to believe that it's the liberals who are the true sexists and racists.) The President, had he been paying any attention, could have noticed that his nomination of Roberts drew quite a few exclamations of delighted surprise from the Right, which clearly (a) thought that the nominee should have been selected without regard to gender, and (b) expected the President to make gender a determining factor in the selection process anyway. Both the delight and the surprise were significant; the combination should have told the President that part of his base perceived him as someone who could not be trusted to live up to conservative ethical principles. Which in its turn should have warned him that a "trust-me" nomination might not go as well as he would have hoped.

Then he nominates Miers, and promptly begins blabbing on incessantly about her gender. Yesterday morning Kathryn Jean Lopez caustically but absolutely justifiably observed the contrast between the President's marketing of Alito and his marketing of Miers, saying, "I just got the White House talking points on Alito. Nowhere in them does it say that he is one of the best male lawyers in New Jersey." Exactly. The President's whole approach to Miers's nomination screamed affirmative action. And as if that weren't bad enough, when people began to challenge the qualifications of his affirmative-action nomination, Dubya's people started talking about sexism. How, pray tell, would a Democrat have proceeded differently? To appoint somebody to meet a gender quota, and then when people start to complain, to call them sexist -- which party's playbook does that come from? (Calm down, my Democratic friends; I am trying to come at this from the angle of the President's base, which is what should have been his primary concern all along. I don't really think all Democrats are sexist and no Republicans are -- but a big part of Dubya's base does, and it was a political necessity to play to that self-perception rather than against it.)

Unless the whole Miers nomination was an intraparty rope-a-dope aimed at backing the spineless Republican Senate into a corner where they would have to fight the good fight whether they wanted to or not, the Miers nomination is staggering in its incompetence from start to finish. If the marketing strategy was genuinely meant to ensure Miers's confirmation rather than (as the Anchoress and others suspect, unconvincingly to me) to ensure its failure, then whoever came up with it ought to be kicked out of the White House with such emphasis, that he ought to carry all the way to Omaha before the first bounce.

Could the Miers nomination have been saved? Well, you were never going to reconcile me personally to the nomination of the current Presidential counsel to the Supreme Court, simply because I believe that, due to conflict of interest, persons within the President's inner circle should be ineligible. But I don't get to vote in the Senate, and I'm not part of the President's base; so I don't count. Of course the Miers nomination could have been saved -- but only if she had been able to convince the Senators that there wouldn't be a fight in the Senate, which was (by my theory) the only reason she got nominated to begin with. Those who blame the blogosphere for the demise of the Miers nomination should remember that even after the blogosphere freaked out, most of us thought the nomination was unstoppable. It wasn't until Miers turned out to be deeply unimpressive in her meetings with the Senate and in her preparation for the hearings, that the Senators lost their nerve. Had the Senators stood firm, the President would have as well, and Michelle Malkin could have gone and jumped in a lake. But the Senators started reaching the conclusion that the hearings would be a disaster, and began providing broad hints to the President along those lines.

At which point the President said, "Well, go to hell, you spineless little weasels, I'm nominating the guy I had in mind to begin with and you can damn well fight whether you like it or not." At least, that's how the story, to me, seems most easily told.

At any rate, now, in Alito, we have what we ought to have had all along.