Misc Commentary On The Harriet Miers Nomination

18 Oct, 2005 by John Hawkins

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— Is it inevitable that Harriet Miers will be confirmed if she makes it to the Senate? Not at all. In fact, with the furor over the Miers nomination still going strong and three weeks (or more) left until her confirmation hearings, Time says, “congressional Republicans are now sweating the Miers vote count and tell TIME that it could be as low as 52.” If the count could be as low as 52 today, how bad will it look after 3 more weeks?

But, is 52 a reach? Going by this excerpt from John Fund’s column in the WSJ yesterday, it doesn’t sound like it:

“Should hearings begin on Nov. 7 as is now tentatively planned, they would likely turn into a spectacle. Mr. Specter has said he plans to press Ms. Miers “very hard” on whether Roe v. Wade is settled law. “She will have hearings like no nominee has ever had to sit through,” Chuck Todd, editor of the political tip sheet Hotline, told radio host John Batchelor. “One slipup on camera and she is toast.”

Should she survive the hearings, liberal groups may demand that Democrats filibuster her. Republican senators, already hesitant to back Ms. Miers after heavy blowback from their conservative base, would likely lack the will to trigger the so-called nuclear option. “The nomination is in real trouble,” one GOP senator told me. “Not one senator wants to go through the agony of those hearings, even those who want to vote for her.” Even if Ms. Miers avoids a filibuster, it’s possible Democrats would join with dissident Republicans to defeat her outright.”

— Speaking of John Fund’s column, it might have some serious repercussions for the nomination. According to Fund, Nathan Hecht & Ed Kinkeade were introduced by Dobson like so: “Karl Rove suggested that we talk with these gentlemen because they can confirm specific reasons why Harriet Miers might be a better candidate than some of us think.”

Here are the key, Roe v. Wade related, comments from Hecht and Kinkeade:

Then an unidentified voice asked the two men, “Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?”

“Absolutely,” said Judge Kinkeade.

“I agree with that,” said Justice Hecht. “I concur.”

Given that neither Hecht or Kinkeade are publicly claiming Miers would overturn Roe v. Wade, there are some different possibilities here. Maybe Hecht and Kinkeade were just telling people like James Dobson what they wanted to hear. Another possibility is that Miers has told both of them that she would like to overturn Roe v. Wade and, therefore, they were both correct when they said they “absolutely” believe she’d vote to reverse Roe. If that’s the case, then Judge Hecht, who has publicly said he doesn’t know which way Miers will go on Roe v. Wade, is being deliberately misleading.

The only way to really get to the truth of the matter would be to subpoena Rove, Hecht, Kinkeade, and some of the people on the conference call including Dobson, to ask them questions under oath. Will the Judiciary Committee do that? Maybe. Roe v. Wade is a high priority issue for them and if they conclude backroom deals have been cut on the nomination, then the Senate Judiciary Committee may decide they want to get the details. Boy, that would be a circus, wouldn’t it?

— If Ronald Reagan had the courage to try to shove through Robert Bork with 55 Democrats in the Senate, why doesn’t George Bush have the guts to try to shove through a more credible nominee? Heck, even if Bush had lost a fight for a McConnell or Brown — and I don’t believe that would have happened — he could have come back with Miers then. Granted, conservatives still wouldn’t have been happy with her, but at least he would have had an excuse for nominating her.

— Back in July, David Frum predicted that Harriet Miers was a dark horse candidate for the Supreme Court. Today, there are some pro-Miers pundits pointing to that post as if it’s an endorsement of her candidacy, when clearly it’s not. There’s nothing that David Frum has said since the Miers nomination was made public that’s inconsistent in the least with his original post. As a matter of fact, there were plenty of bloggers, myself included, who knew Miers was a candidate and that she would cause a huge hubbub if she were nominated. That’s why she was 2nd, only to Alberto Gonzales, as the least desired SCOTUS nominee in “A Special Blogger Poll On The Supreme Court” that I conducted shortly before her nomination was announced.

— Just so I can say I had it in writing when this is all over:

A) I don’t have a big problem with Bush selecting friends, as long as they’re minimally qualified, for Cabinet positions. Those are people who need to be loyal to him personally and picking people he trusts for those positions is understandable.

B) Conservatives who are opposing Bush on this nomination are sending Bush a message. If he shows that he hears that message and the Miers nomination is withdrawn, then he deserves credit for that and a 2nd chance to prove his intentions were good.

C) There is nothing unprincipled or dishonorable about defending the Miers nomination from the right.

D) I don’t think Harriet Miers is unaccomplished, a moron, or an awful person. What she is, is an almost indescribably bad choice for the Supreme Court in almost every way that really matters, which is why so many conservatives have spoken out against her.

E) I am against Roe v. Wade, think there is no such thing as a constitutional right to privacy or a constitutional right to an abortion, and do not think being publicly against Roe v. Wade should disqualify a candidate from sitting on the Supreme Court.

F) I unconditionally oppose judicial filibusters & support the “Ginsberg rule” in the case of Harriet Miers and for all future nominees.

— How embarrassing is this comment from Charles Schumer about his meeting with Miers?

“I didn’t learn answers to so many important questions,” said Schumer, who described Miers as much less informative than Chief Justice John Roberts was during similar meetings after Roberts’ nomination to the high court in July. “On many, she wouldn’t give answers, and on many others, she deferred, saying, ‘I need to sort of bone up on this a little more.’

…Schumer suggested that Miers, who has never been a judge, needs to brush up on constitutional law: “Clearly, she needs some time to learn about these cases and then give the American people her views.”

We have a Senator asking a nominee to the Supreme Court, the SUPREME COURT, questions and she’s telling him she needs to “bone up” on constitutional law so she can answer them. It’s hard to know whether to laugh or cry after reading this sort of thing.

— What if John Paul Stevens, Ruth Bader Ginsburg, or both were to retire within the next year or so? It’s more of a possibility than many people may think: Stevens is 85 and Ginsburg is a 72 year-old woman who was diagnosed with colon cancer in 1999. It would hardly be a surprise at this point if either of them decided to retire.

Now here’s the big question: who could we expect to see fill the next open seat on the Supreme Court given the precedent of the Miers nomination? Would it be Alberto Gonzales, whoever Bush’s personal attorney is at the time, or some other candidate recommended by Harry Reid? After all, if the best Bush can do this time, with 55 GOP Senators and a fired up a GOP base, is a bottom of the barrel candidate like Harriet Miers, then why should we expect a much better candidate next time? Heck, if Bush did select an Edith Hollan Jones or Emilio Garza to fill the next available slot on the Supreme Court, wouldn’t it in effect be an admission on Bush’s part that he could have chosen a much better candidate this time, but instead decided to reward a crony?

That’s why it seems to me that if you’re saying, “OK,” to Miers this time, you’re giving the thumbs up to a nominee like Alberto Gonzales next time. Is that really what conservatives fought so long and hard for? To put dubiously conservative Bush cronies on the bench instead of deserving originalist nominees?