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Thursday, October 06, 2005

Is the Miers nomination all about Dubya flipping off his base?

Apparently some conservatives are suggesting with a perfectly straight face that the explanation for, and the real point of, the Miers nomination was for Dubya to demonstrate his contempt for his base — to get in a bit of payback against those who've been bashing his buddy Alberto Gonzales and demanding that his judicial nominees come from their pre-approved lists. So suggests columnist Bob Novak, in an op-ed that I came upon after it was linked by my blogospheric friend Prof. Bainbridge. Peggy Noonan engages in some similar speculation in a WSJ op-ed. Presumably they can't come up with any other rational explanation for the nomination, so it must, by process of elimination, be all about revenge — Dubya having a tantrum, Dubya flipping off his base.

Oh, please. This theory amounts to disappointed conservatives clutching their hands to their breasts and sobbing: "It's all about MEEEEeeeeeee!!!"

It's just not. It's all about who will be in the slot currently occupied by Sandra Day O'Connor for what's likely to be the next 10-20 years.

Bush-41's legacy — that which springs to mind today when most folks think back to Poppy's presidency — consists of three things: The successful Gulf War, the broken promise on "Read my lips," and Justice David Souter.  (People mostly forget that Poppy also nominated Justice Thomas, and Reagan still gets most of the credit for the final victory in the Cold War.)  Bush-43's legacy — that which will spring to mind in a decade or more when most folks think back to Dubya's presidency — will certainly consist of at least three parallels: The GWoT, his tax cuts, and his Supreme Court nominations. That, folks, is the way the score will be kept by history. Macro, not micro. Stuff you can count on one hand and have fingers left.

Maybe these baseball metaphors are particularly appropriate because of Dubya's history with the Texas Rangers, so I'll indulge an another extended one:  Ten years from now, only a complete wonk will be able tell you details about the average pitch count — balls versus strikes run up by the batters — in, say, the 73rd game of the Boston Red Sox' 2004 season. But most folks with even a passing interest in baseball, and certainly every Red Sox fan, will be able to tell you even ten years from now that 2004 was the year the Curse of the Bambino was broken and the Sox won the Series. Well, folks, focusing on whether Dubya's short-term approval rating among his base during the month of October 2005 goes down 10 points or 30 points as a result of the Miers nomination, and debating whether the nomination was calculated to produce that particular result, is like obsessing over the pitch count in the 73rd game of the Sox' 2004 season. (But I guess that's actually a simile, isn't it?)

Conventional wisdom has already stripped Dubya of most credit for the incredible coup of the Roberts nomination. Mere weeks after major elements of Dubya's base were soiling their knickers in nervousness over this "cypher" and this "unknown with only two years on the bench," history has already been rewritten to paint John G. Roberts, Jr. as the uber-Nominee — the nominee who was such an obvious and compelling choice that Dubya basically gets no credit for picking him. That's not very fair to Dubya, but it's also not very important. Because whether the nominee gives "the base" the warm fuzzy happy feelings or makes "the base" rend their hair and gnash their teeth is, frankly, barely consequential in even the medium run. And in the long run, it's completely inconsequential.

Lots more will happen in the thirteen months between now and the November 2006 elections. Yes, there may still be some people then who are still kicking their heels against the ground, holding their breath, insisting through their blue lips that they're going to stay home from the polls to "punish" the President for his "backstab" with the Miers nomination. But not many. In the first place, by the off-term elections, we'll probably have at least a small set of "Justice Miers" opinions to look at, and a substantially larger set of "Justice Miers" votes; she and new Chief Justice Roberts will have a Supreme Court track record by then, if only a short one, and by November 2006 that's going to matter more than anything that happened in October 2005. Second, God forbid, but al Qaeda could push this so far back in people's memories with one more domestic-U.S. terrorist event before November 2006 that Republicans would look back to the days of October 2005, when we were all worrying about whether Dubya had alienated his base, as being "the simple times, the good old days." Hopefully that won't happen, but some sort of other stuff — consequential, important, and newsmaking stuff of the sort that regularly drives people of all political persuasions to the polls — will almost certainly be on the forefront of most voters' minds by the mid-term elections.

And by October 2015, whether the Miers nomination annoyed or sparked rejoicing among the conservative base way back in October 2005 will be the kind of thing relegated to a middle of the day "remember when" post in The Corner, a cute footnote to whatever Supreme Court nomination debate we're all having then.

By contrast, even in 2015, and maybe in 2025, and for every single year during that stretch that she's on the Court, the Supreme Court votes cast by Justice Miers, and to a lesser but still important extent her bases for those votes, will still be hugely important.

I know some folks think Dubya has, as Professor B eloquently puts it, "a short fuse, intense loyalty to a very select group of people, a strong stubborn streak, a reputation for holding grudges, and [was] maybe never really ... a true believer himself." But even if that's all so, do you think he's stupid enough to confuse the pitch count with the Championship?

So: It's not all about you, disgruntled conservatives. It's all about the Court, and about what this President does with his limited number of chances to influence its direction and the results it reaches. C'mon, folks — you know that, doncha? Sure you do, because that's the knowledge that got you (and all of the rest of us) all worked up in the first place! This is vastly important — but not because of whether Dubya's picked someone you do or don't approve of this week or this month. Thinking this is all about what kind of "message" Dubya was sending his base is just a self-important fantasy, and it's definitely a diversion from what's really important.

Like it or not, we won't have a basis to even begin to draw conclusions about whether these nominations have been terrible, great, or somewhere in between, until the end of their first season on the Court. And Chief Justice Roberts has just stood up for his first at-bat, and Justice-nominee Miers is still suiting up in the Senate locker room. But it's the score at the end which matters. Dubya knows that, and so do all of you — maybe you just forgot it for a moment, an understandable lapse attributable to your commendable passion.

Posted by Beldar at 07:03 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Is the Miers nomination all about Dubya flipping off his base? and sent a trackback ping are listed here:

» Gravitating Towards Opposition: A Rant from Patterico's Pontifications

Tracked on Oct 6, 2005 11:52:16 PM

» Sorry, Hugh, but the floodgates look like theyre about to burst... from protein wisdom

Tracked on Oct 7, 2005 2:28:52 PM


(1) Al made the following comment | Oct 6, 2005 7:39:06 PM | Permalink

I still say it all makes more sense if you _know_ you've got to save your money to sign an outstanding Janice Rodgers Brown or Michael Luttigg in the off season.

(2) ed made the following comment | Oct 6, 2005 8:27:31 PM | Permalink


"Conventional wisdom has already stripped Dubya of most credit for the incredible coup of the Roberts nomination. "

What the hell are you talking about Beldar? I'm still nervous about Roberts and I'm STILL unconvinced the guy is either a conservative or a strict constitutionalist.

In case it hasn't registered Roberts has yet to actually, you know, make a judgement as a Supreme Court justice.

It's nice you're such a partisan for a fellow Texan. It's cute. But it's not convincing and adding insulting verbage only tells me it's time to move on and let you do your schtick to whomever else desires it.

(3) Beldar made the following comment | Oct 6, 2005 8:37:32 PM | Permalink

Ed, if you're not satisfied that Roberts was an appropriate pick by now, then you're right, nothing I or anyone else could say about Ms. Miers is going to satisfy you about her.

I believe that says more about you than either of them, but I'll let my readers draw their own conclusions. And if you've decided to move on to other blogs, that too is your decision. I promise not to invade your home and seize your computer so I can direct your browser to my blog.

(4) Sean made the following comment | Oct 6, 2005 8:41:32 PM | Permalink

"Like it or not, we won't have a basis to even begin to draw conclusions about whether these nominations have been terrible, great, or somewhere in between, until the end of their first season on the Court."
But that's the point. Imagine choosing a Secretary of Defense this way. "Trust me, he'll do well when we go to war." Those of us who voted for Bush thought we'd get competence; instead we got feckless cronyism.

(5) Beldar made the following comment | Oct 6, 2005 8:46:06 PM | Permalink

Sean, we don't know how any nominee will vote until he's on the Court.

No, having been a Circuit Judge doesn't help things. Nixon appointee Harry Blackmun and Bush-41 appointee David Souter were both Circuit Judges.

"Feckless cronyism" is a conclusion, not an argument.

(6) Sean made the following comment | Oct 6, 2005 9:12:46 PM | Permalink

You refer to "votes," as if the supreme court were a super-legislature. My point is qualifications, competence, demonstrated ability in the law. "Feckless cronyism" isn't a conclusion; it's a description of what Bush has done. Feckless as in irresponsible, like the Julie Myers appointment; cronyism as in "Trust me I know her." I notice you don't suggest she's supremely qualified for the court. Bush blew it. And it has already damaged the party.

(7) harriet made the following comment | Oct 6, 2005 9:26:09 PM | Permalink

Professor B sure has got his panties in a knot over Harriet. I think that if he had his druthers, the whole Supreme Court would be overgrown catholic altar boys like Johnny Roberts. Prof B is quite a piece of work - sort of like a cross between a pit bull and a toy poodle.

(8) David Walser made the following comment | Oct 6, 2005 9:30:10 PM | Permalink

I cannot believe all the carping I'm reading and hearing about this pick. Based on what little I know of her and the other candidates, she would not have been my first choice. Still, she's not beyond the pale. She's a reasonable, if not an obvious, choice. I know that's damning her with faint praise. That's not my intent. Instead, I have to admit I do not have access to all the information the President had in making his selection. I also have to admit that, having access to that same information, I might have made the same selection he did. It's also possible that many of the President's critics would have selected Miers, too.

Some say that, because we do not have a paper record of Miers' take on the important issues of the day, it's too risky to put her on the Court. There were no "safe" choices. No one can tell what someone else will do after 20 years on the court. Yes, there may have been safer choices than others. Bush may well have believed Miers to be the safest, best, choice. Or, he may have thought, based on advice we are not privy to, that she was the best he could get through the Senate. Or, he may have thought by appointing her he'd get a solid-if-not-stellar justice on the court and at the same time be able to get more of his domestic agenda enacted. Any of these motivations are adequate justification for selecting a nominee. It's more than a tad presumptuous to know what thoughts animated the President in the selection of Miers.

Was Bork the best choice when he was nominated? He did not get through and the fight over his nomination has influenced all of the following nominations for the worse. We may have been better served had the President nominated someone without such a stellar academic record -- a record that gave the Democrats reason to fight over the nomination! If a solid conservative, but one not as outspoken as Bork, had been nominated, would Bush - 41 have nominated Souter?

I've hired a lot of people over the years and I know the premium I place on knowing someone through direct observation. The President has known Miers for some ten years. During that time it is likely that he has learned a lot about her and the way she thinks about the proper role of the Court. At the end of the day, he may have chosen to go with, what to him, was a known quantity rather than go with someone who, from his point of view, was far riskier. That would have been a very rational thing to do and would fall well within proper exercise of the President's discretion. Those who claim that there is no rational basis for selecting Miers must be mind readers. Just because WE don't see the President's reasoning does not mean he did not have rational reasons.

Nor is it fair for us to demand that he PROVE she was the proper selection. Such a test cannot be met -- by anyone on behalf of any candidate. Loyalty does not demand we, who supported the President's election, must agree with every decision he makes. But loyalty does demand that we have some rational basis for believing the man made an unconscionable error before baying at the moon! And, no, the fact she has no judicial experience and is not known for her musings on the Constitution, are NOT rational reasons for opposing her. The woman was at the TOP of her profession. She has the mental horsepower for the job. The only real question is whether her heart is in the right place. The President seems to think so and I am not aware of ANYTHING that indicates that he is wrong.

(9) Beldar made the following comment | Oct 6, 2005 11:09:16 PM | Permalink

Sean, the Supreme Court Justices do cast votes. They cast them on every certiorari petition. They cast them on every direct appeal. They cast them on every case decided by the Court. It's what they do. Majority vote wins; tie vote, the decision below is affirmed by an equally divided Court. Advocates, even the Justices themselves, count votes as they frame their strategies in a way not very dissimilar from the way party whips do in the legislature.

I do argue that she's qualified. I've been arguing that all week.

Cronyism means hiring or promoting someone who's unworthy of it on any basis other than friendship and personal relationship. Not everyone who's a friend is incompetent, at least among my friends. You're making the same mistake as Prof. Barnett did with his Hamilton/Federalist Papers spiel, and it's based on a fundamental misconception plus a fondness for a word with pejorative connotations.

(10) Rob made the following comment | Oct 7, 2005 12:07:35 AM | Permalink


you previously challenged Beldar to "GUARANTEE Miers won't turn to the left"

Now your conceding that even Judge Robert's is not guaranteed. Gee no kidding, considering he did undergrad at Harvard and Harvard Law - just like Judge Souter. Keep in mind Roberts once breathed in all that socialist/left wing air for at least 7 yrs. They don't call Harvard's locale the PEOPLES REPUBLIC OF CAMBRIDGE for nothing.

I would be curious for YOU to explain to readers in here how YOU could personally guarantee that Janice Rogers Brown or any other candidate would not actually turn to the left at some point.

(11) Ryan Booth made the following comment | Oct 7, 2005 5:56:35 AM | Permalink

I think it's interesting that so many conservatives are now doing what the liberals have consistently done -- misunderestimate President Bush.

Almost all the criticism I see of the Miers pick assumes that he's an idiot, if not for picking an "unknown quantity" then for "alienating his base."

Nobody seems to think that he is smart enough to know that these picks will be his legacy. I have seen time and time again, though, that the President (specifically on the big issues like the war) does make decisions with the long-term implications at the forefront. That's why I trust him with this decision.

(12) Ryan Booth made the following comment | Oct 7, 2005 6:01:22 AM | Permalink

The President is also obviously aware that if Miers and Roberts don't vote the conservative line this year on the court, that GOP turnout in 2006 will plummet and his legacy will consist of costing his party seats -- just like Clinton did.

So again, he isn't that stupid.

(13) Agee made the following comment | Oct 7, 2005 8:44:35 AM | Permalink

Thank you Beldar for your insights and calm responses.

I think the reaction would have been no different, if President Bush had picked his personal chef (not saying being a chef is bad or anything) for supreme court. It is ridiculous to react with such negativity without giving the lady a chance to speak on her own behalf. Why not wait at least until the confirmation hearing?

Some people say he selected her because she is his friend. She actually works for him. That means he knows the quality of work she does. Unless someone agrees with those that believe the President has no brain.

(14) James B. Shearer made the following comment | Oct 7, 2005 1:26:05 PM | Permalink

Beldar, you appear to be arguing that only results matter so we can't judge the pick yet. I don't agree, I think a pick with a 90% chance of working out is a good pick and a pick with a 10% chance of working out is a bad pick even if the 90% pick turns out poorly and the 10% pick turns out well.

(15) Chuck made the following comment | Oct 7, 2005 10:29:22 PM | Permalink

Beldar, Roberts was indeed a spectacularly qualified nominee, brilliant, glib, persuasive, all that. But we STILL do not know if he is a Scalia/Thomas-style textualist or originalist. We STILL do not know if his 'judicial humility' will be the crutch he, like his mentor Reinquist, uses to justify holding SCOTUS precedent in higher regard than the Constitution they swore to uphold: "Well, sure, Plessey was wrong on the merits but super-duper-precedent blah blah can't overturn now blah blah"

So count me out of the "rewriting" where Roberts was a good pick: he was a *well-qualified* pick, but not, repeat NOT, a fulfullment of W's campaign promise: Thomas/Scalia, not slightly-to-the-left-of-Reinquist, nor not-quite-as-bad-as-O'Connor, nor definitely-better-than-Kennedy. At least, Roberts is not YET a fulfillment of that promise. He was a cipher, and still IS a cipher. Only it's too late to do anything about that -- and his supreme qualifications, philosophy aside, rendered him practically immune from attack from the Right.

And, now: Miers. ALSO a cipher. Sure, she's qualified, even if not so much as some other contenders. I even like the idea of a regular scum-sucking shark on SCOTUS to balance the pointy-headed academics with their three-prong tests and concurrences in part II-A(3)para 4, but not II-A(3)para 5. But she has even LESS of a record from which for us to discern her judicial philosophy than Roberts.

So we're left with "Trust me."

I'm sorry, but after "Putin's soul" and BCFR-is-unConstitutional-but-I'll-sign-anyway, I don't have too much faith in W's personal or Constitutional judgement. Only that his judgement is arguably at least marginally better than Kerry's. This is why it was a good thing there was a White House committee to vet nominees and recommend names to the Prez, and is SUPPOSED TO SAY "Watchu talkin' 'bout, Willis?" when W tosses the name of his personal lawyer into the hat. Except for the minor wrinkle that his personal lawyer was running that committee...

You're right that we won't KNOW the ultimate consequences of these nominations for 10 or 15 years; O'Connor/Souter/Kennedy picks are the gifts that keep on giving. But SOME hint, SOMETHING in writing, SOME form of reassurance is NOT too much to ask, when so much rides on the decision. And ALL W and his flacks give us in the way of reassurance is "Trust me" and "you critics are a bunch of elistist misogynist bigots".

Sorry. No sale.

(16) Jeremy Pierce made the following comment | Oct 9, 2005 1:30:35 PM | Permalink

If Bush had really wanted to get the base mad for saying bad things about Gonzales, why did he nominate Miers rather than Gonzales? I would assume nominating the guy they were complaining about would have gotten them mad more easily and with more poetic justice. Novak and Noonan aren't idiots, but they sure weren't thinking very hard when they said this.

By the way, I'm still trying to figure out why the president has any obligation beyond appointing people who will do what he said they will do. In particular, that doesn't involve an obligation of proving to us now that his nominees will do that. All he agreed to do was appoint that sort of person. He never agreed to appoint people and then give us immediate and clear proof that they would do it. What he said is that they would be people who would do it. This seems to me to be an error in confusing epistemology and metaphysics. What matters is whether it is that way, and that's all his obligation is. What we happen to know about it right now is simply irrelevant, and those complaining that he betrayed his base are going to look like complete morons when it turns out he did no such thing. They'll respond that we didn't know if he had betrayed his base, but that doesn't amount to its being the case that he betrayed his base, which is what people are saying despite having zero support for such a claim.

(17) Xrlq made the following comment | Oct 10, 2005 10:58:44 AM | Permalink

Up until now I've considered Novak's theory too moonbatty to warrant even a fisking, but after reading today's Washington Times article I think it bears noting that if Bush did intend this appointment to anger his base, it's not working very well.

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