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Tuesday, October 11, 2005

The single best criticism of the Miers nomination

Life tenure is, of course, the proverbial double-edged sword. But certainly an acknowledged strategy of Presidents from both parties has been to pick Justices who are young enough to reasonably be expected to spend many years on the Supreme Court — a "force multiplier" of a sort, each such pick still casting but one vote, yet casting votes for year upon year. And at 60, Ms. Miers is almost a decade older than the newly confirmed Chief Justice.

Initial criticisms from the right about Ms. Miers' age have almost disappeared, however, as her opponents have realized that it's a criticism that can only stick if one first accepts as a premise that Ms. Miers' votes over her likely career will be to one's liking. That is a premise they've spat back out. Indeed, Ms. Miers' age and actuarial likelihood of a shorter tenure undercuts their arguments across the board and, in particular, their arguments that Justices tend to drift to the left the longer they're on the bench and the farther removed they are from their "roots." It's likewise a bit unseemly for Ms. Miers' supporters to argue that, as a more mature nominee, she's unlikely to be as impressionable and subject to persuasion from the left as some younger potential nominees. (Unseemly — but valid.)

It's not directly on point, since it was from a contest involving two particular combatants — and Ms. Miers, to her misfortune, is compared against every other potential nominee whom her critics would rather have seen get the nod (including some who certainly would have been aggressively filibustered, and at least some of those probably successfully) — but I can't help recalling this wonderful bit from the second 1984 Presidential Debate:

MODERATOR: Mr. Trewhitt, your question to President Reagan?

Reagan and Mondale during the second 1984 Presidential DebateREPORTER: Mr. President, I want to raise an issue that I think has been lurking out there for two or three weeks, and cast it specifically in national security terms. You already are the oldest President in history, and some of your staff say you were tired after your most recent encounter with Mr. Mondale. I recall, yes, that President Kennedy, who had to go for days on end with very little sleep during the Cuba missile crisis. Is there any doubt in your mind that you would be able to function in such circumstances?

REAGAN: Not at all, Mr. Trewhitt and I want you to know that also I will not make age an issue of this campaign. I am not going to exploit for political purposes my opponent's youth and inexperience. If I still have time, I might add, Mr. Trewhitt, I might add that it was Seneca or it was Cicero, I don't know which, that said if it was not for the elders correcting the mistakes of the young, there would be no state.

This was "vintage" Gipper, of course. But this quip essentially ended President Reagan's age as in issue in that election. And while the age of a potential nominee may indeed be relevant in selecting among many candidates, once that candidate has been nominated, then absent some unusual circumstance — "the nominee is on a respirator!" or "the nominee has just been diagnosed with a terminal disease!" — it ought to basically drop out of the confirmation discussion.

Posted by Beldar at 08:49 PM in Law (2006 & earlier) | Permalink


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(1) Ironman made the following comment | Oct 11, 2005 9:30:22 PM | Permalink

I raised this on an earlier thread, but Ms. Miers short tenure on the Dallas City Council leads me to wonder if she would stick out eight unpleasant years of a Hillary Clinton administration?

Is that why Harry Reid is so sanguine about this nominee?

(2) Polaris made the following comment | Oct 12, 2005 2:13:33 AM | Permalink


As I said, her seat was eliminated by the redistricting. I never got the impression that HM was really suited for the kind of political campaigning needed for a legislative job. That, of course, has little bearing on her qualifications for SCOTUS. I am no lawyer, but it is my understanding that as a litegator, she is as tough as nails.

However, I think her performance at the hearings should answer whether or not she has the temprement. While at the hearing she (justifiably) will probably say as little as possible, it is the modern version of the inquisition and how people react to it IMHO says a great deal about them. Consider it trial by fire if you like.


(3) sammler made the following comment | Oct 12, 2005 4:57:17 AM | Permalink

Bear in mind that President Bush believes in an emerging conservative majority; thus he expects that Miss Miers will be succeeded by a more conservative justice. More here and here.

(4) saveliberty made the following comment | Oct 12, 2005 5:13:31 AM | Permalink

I don't really think it's her age that has Harry Reid sanguine about her nomination.

His people really embarrassed themselves in gunning for Roberts.

I think that the best that Reid can hope for is a dark horse that he hopes will not turn out to be conservative.

It would be lethal to Dems if R's nominated and supported her and she went down due to Dem actions. Because then the R's would quite rightly be able to show how unreasonable they are and put in someone that the Dems would really hate.

But the R resistance to her is just icing on the cake for the Dems. If R's end her nomination, then there's absolutely no way that I can see a successful nomination of the type of conservatives her R opponents say that they want.

I am convinced that she will do a great job on SCOTUS. I didn't start out that way, but Beldar persuaded me to step away from my preconceptions and see what she adds to the Bench.

(5) Ironman made the following comment | Oct 12, 2005 9:37:14 AM | Permalink

It just concerns me that in the one venue requiring ideological battles and horse trading she chose not to battle in a new district to hold her position. And the possibility of President Hillary until 1/21/17 needs to be fully appreciated.

(6) saveliberty made the following comment | Oct 12, 2005 11:09:31 AM | Permalink

Since that doesn't affect the outcome of pending cases, that would be a good question for the hearings.

I do think that it's fair to say that the President does "get" the idea of conservative judicial appointments. I think it's also fair to say that the WH didn't do a good job in communicating this nominee.

That said, I still think that she will be a reliable conservative vote as well as a welcome change to the appellate court experience on the bench.

When Hugh Hewitt interviewed John Fund, Fund came out much differently in the interview than he did in his article. And the net results of his view are-

Much of the uproar is related to the bad communications by the WH

As the candidate did not go through the normal vetting process, the WH had better be prepared for 6 surprises

He concedes that probability is that she will be a reliable conservative vote as she's a beltway conservative

He indicates that he believes that she will be confirmed.

(7) slarrow made the following comment | Oct 12, 2005 11:44:26 AM | Permalink

Betting on age is a crap shoot, anyway. Both Roberts and Miers might very well be on the Court in 25 years; look at Justice Stevens. Likewise, health issues might crop up and cause any one of the justices to step down. Focusing on this issue is troublesome because it tries to apply the concept of probability (derived from studies of large numbers of people) to the lives of nine specific people who aren't bound to act the way statistics say they should.

On a more worrisome note, Beldar has been one of the most persistent and persuasive defenders of the Miers nomination. But he has a day job, and tonight his Astros start playing my Cardinals for the chance to go to the World Series. How will Beldar find the time to ride forth against snarling pundits when there's playoff baseball afoot? What will the Republicans do then?

(Of course, it serves the interests of the party and the nation if Beldar is back quickly to defend a reasonable pick. So, in that light, a Cards sweep helps the country! Right?)

(Gotta throw a little humor in there to break some of the tension. Besides, I expect the series to be a hard-played, nerve-wracking week, just like last year, and I expect lots of bitten fingernails and stomach butterflies. But I can hope!)

(8) Ben Wisdom made the following comment | Oct 12, 2005 1:14:46 PM | Permalink

Whatever your position on the Miers nomination, I hope you will enjoy a little comic relief that I came up with earlier this week. It's called "Swing Roe, Sweet Harriet".

Sometimes you just have to laugh.

(9) Rob made the following comment | Oct 12, 2005 3:53:17 PM | Permalink

The debate on this nominee is getting more vicious by the day

Two leaders on this issue would be radio host/lawyer/ex-supreme ct law clerk Laura Ingraham and constitutional theorist/ lawyer/media pundit Ann Coulter.

The problem with their massive anti-Miers hissy-fit is that most americans (some of whom might even call themselves pro-life) would not actually support making abortion illegal, despite their personal disgust with the practice

Roe is about more than abortion, true, and its a great issue for legal pontifications in law journals. However, that fact is effectively irrelevant. The elephant-in-the-room issue is whether abortion will or willl not remain legal

If Bush puts up a BORK-approved candidate, Roe will in effect become the sole issue - and the candidate will go down in defeat because the dems will be able to successfully take their cause to the wider public

Miers in fact may or may not overturn Roe, however any Bork approved candidate will have the written record to prove they will overturn Roe, so it will end up as WAR OF THE WORLDS, with a bad outcome for the nominee

Ms Ingraham and Ms Coulter need to get out of the law library and start dealing with the real world

Like Soccer hooligans in the United Kingdom that often care more about the bloody fistfights with opposing fans than the substantive outcome of the game, Ingraham and Coulter just want the battle regardless of the destruction it creates

(10) DC made the following comment | Oct 12, 2005 4:08:30 PM | Permalink


I can understand your arguments with respect to Ann C., but Laura I? She has been solid. This is an important issue to her, as it is to me. What I continue to hear from the pro-Miers crowd is attacks on those who dare question the nominee. Cite one example of an inappropriate comment by Laura. This is pitiful and you are driving me from agnosticism to hard opposition of this nomination.

(11) slarrow made the following comment | Oct 12, 2005 5:14:39 PM | Permalink

I don't know if it'll help, DC, but the Hedgehog has an observation about Laura Ingraham sneering over Miers claiming not to have thought about Roe v. Wade when her former boss Clarence Thomas used the same approach. (It's in the middle of a longer piece comparing the Thomas nomination to the Miers nomination.)

And for what it's worth, some of the reaction I've seen has driven me from agnosticism to defense of this nomination--the anti-anti-Miers side, as Hewitt puts it. All this stuff is working both ways.

(12) Rob made the following comment | Oct 12, 2005 5:49:47 PM | Permalink

"Having Harriett Miers merely vote the right way is not enough" is but one of numerous examples of Laura Ingraham's dismissive and elitist comments -the implication being that Ms Miers via a lack of intellectual firepower either never had, does not have or is incapable of having a worthy "judicial philosphy" and that only the high and almighty judicial philospher kings can weigh in on such issues

Perhaps Ms Miers was actually busy working in the real world.

The burden is on Ms Ingraham to demonstrate how a provably "will overturn Roe" candidate can be successfully nominated when its very clear most of the public will not stand for abortion being made illegal

(13) coffeedrinker made the following comment | Oct 12, 2005 7:23:04 PM | Permalink

Now David Frum has a petition (frum.nationalreview.com/petition) to have Harriet Miers' nomination withdrawn, a supposed "grassroots" campaign", I guess.

Sooner or later, David Frum will be camped outside of the President's ranch or outside the White House until Harriet Miers is withdrawn as a potential nominee or rejected by the Senate (or perhaps, until he can get a one-on-one meeting with the President so that he can get the answer to the question "why didn't you pick my favorite? I voted for you!!!!!")

(14) MikeKS made the following comment | Oct 13, 2005 1:14:14 AM | Permalink

So is it safe here? :)

I am a supporter of Miers, post on Hedgehog and ConfirmThem.com, and nice to find a place where others seem to be.

Just to give some background, my INITIAL immediate reaction the morning of the nomination was one of being upset. The initial "sudden" reports I had were that she was a liberal. My intiial reaction was inappropriate. I should have read more about her andt he more I did, the more I liked her.

I am really getting upset at the Frum's of the world. Frum is acting like Sheehan, and many on NRO (K-Lo, who I usually love) are starting to act like depressed children on Christmas morning after not getting the gift they wanted.

I think there are some reasonable questions to ask Miers, but the outright hostitlity to Bush on this is really upsetting me. Some are now disparaging his friendship with her, as if that is somehow bad.

I admit I am a Bush loyalist, and even though sometimes I have questions (I did over Roberts, but thought he should be confirmed as he was simply brilliant, and I loved his passionate arguments in the Oregon case), I tend to support Bush's stances...and understand him when I don't.

The massive ship jumping really upsets me. I love Laura, Rush, others, and I just shake my head (more at Laura than Rush, as I think Rush wants to support her but feels like he should be part of the anti-Miers clan) at their opposition.

Unless I am given clear and convincing evidence that somehow Bush lied about what he knew about her philosophy, or that somehow Miers has lied to him, or that somehow Bush isn't actually going to appoint someone who would hold up the viewpoints in all the other judges he has appointed, I believe this nominee should be supported.

(15) Walt made the following comment | Oct 13, 2005 10:03:50 AM | Permalink

DC ...

Re Laura Ingraham: I, for one, do not take my conservative marching orders from a woman who dated Robert Torricelli.

(16) Don Surber made the following comment | Oct 15, 2005 7:30:19 PM | Permalink

Age, schmage. You're gonna love this. Check out
Page 25 gives you the chart. A white male at 50 (Roberts) can expect another 28.8 years.
A wite female at 60 (Miers) can expect another 23.8 years.
Age=herring, red

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