No Guarantees on Miers's Confirmation

Note to Debaters: I was planning to use the upcoming week's Debate to look at the many ethics scandals currently sloshing around Washington ... until I realized that the Iraq constitution vote is on Saturday. With all the other big news, it kind of snuck up on me. So with the consent of my benevolent editor, we'll take on those scandals next week (I have a feeling they'll still be around) and debate the situation in Iraq starting later this afternoon.

But first, a little handicapping on the Harriet Miers nomination. Miers's confirmation is by no means guaranteed, and pre-hearing opinion seems pretty well split over what the outcome is likely to be.

According to a piece for the Washington Post by conservative lawyer (and Federalist Society member) John Yoo, she will be confirmed. However, he says that with the Miers nomination, the president "swung and missed."

Peggy Noonan
is similarly unimpressed. "Barring a withdrawal of her nomination, it's going to come down to Harriet Miers's ability to argue her own case before the Senate Judiciary Committee," Noonan writes in the Opinion Journal. "If the American people decide she seems like a good person -- sympathetic, wise, even-keeled, knowledgeable -- she'll be in; and if not, not."

SCOTUSblog's Tom Goldstein predicts Miers will not be confirmed.

Why such vast disagreement?

The biggest reason for this uncertainty is that the Republicans are deeply divided on the nomination. It is not just the evangelical wing of the party vs. everyone else. Baldilocks, for one, posting from "the cheap seats" of the Republican party, has come to the realization that for all the tirades about the "liberal elite," there are more than enough elites to go around in conservative circles, too. Here we see another rift in the movement -- the ivory tower conservatives vs. the "cheap seats" conservatives -- on top of the long-simmering tensions between the evangelical right and the conservative intelligentsia. Though the rumblings have been recognized for a while, the Miers nomination brought these tensions bubbling to the surface.

It seems there are some on the right who are deluding themselves into believing this division isn't occurring. Matt Goldseth in the Visions of the Annointed [sic] blog derides "Democratic complaints regarding her lack of qualifications." Yet the Democrats, on the relatively rare occasion that we've heard from them over the last week and a half, have generally said they'll reserve judgment and decide whether Miers is acceptable based on her performance at the confirmation hearings. It's the big-name conservatives who are raising the ruckus. They are the ones most bombastically railing against this nomination, saying Miers lacks the necessary qualifications to be on the court.

Blaming Democrats for things is great fun, sure, but as has often been the case for the past few years, they're barely on the radar screen on this one. (Debaters: I challenge you to convince me that the Dems "cowed Bush into" picking a "weak" nominee as is discussed in the Confirm Them blog.) In the National Review, Mark R. Levin somewhat more explicably blames the Miers nomination on John McCain and the other six Republicans who joined the Gang of 14 to prevent a showdown over appellate nominees earlier this year. The real concern is this chasm in the party, and the growing gulf between the President and his once robust base.

Case in point: Sunday's Meet the Press featured Pat Buchanan (about as far from a Democrat as you can get) arguing that the Miers nomination should be withdrawn; fellow conservative John Land argued in favor of the president's choice. Buchanan and the Los Angeles Times' Ron Brownstein, who was on separately later in the program have both fretted that this nomination sends the message to law students that they'll only have a chance at the Supreme Court if they leave no paper trail.

Top conservative opinion writers George Will, Charles Krauthammer and the Weekly Standard's Bill Kristol have lined up against Miers. (Kristol argues that conservatives who can't in good conscience support Miers would do the party a favor by voting no.) Even Ann "Facts Are for Wimps" Coulter is maligning the president over this one.

Still not enough evidence that this bloody battle is, at least for the moment, being waged almost entirely on the rightward side of the battlefield? Try this: The bloggers at's Confirm Them blog aren't so sure this one should be confirmed. Seriously! See here (expressing feeling of betrayal), here (sitting on the fence) and here (calling for withdrawal of the nomination), just for starters.

Think Miers will be confirmed? If you were on the Senate Judiciary Committee, what would you ask her? Leave a comment and let us know. We'll return to the Miers nomination when the Senate hearings begin. Check back around 4 p.m. today for the kick off of the Debate on the Iraq constitution!

Got a tip for an Iraq-related op-ed or blog post you think I should highlight in the upcoming Debate? E-mail me at

By Emily Messner |  October 12, 2005; 5:08 AM ET  | Category:  Looking Ahead
Previous: Bush Nominees: "No Crony Left Behind" | Next: The Facts: The Iraq Constitution


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i'd like to know why she thinks bush is the most brilliant person she's ever met.

Posted by: frieda406 | October 12, 2005 11:33 AM

i'd like to know why she thinks bush is the most brilliant person she's ever met.

Posted by: frieda406 | October 12, 2005 11:34 AM

"i'd like to know why she thinks bush is the most brilliant person she's ever met."

She obviously doesn't get out much.

Or she's delusional.

Or both.

Posted by: Derek | October 12, 2005 11:57 AM

Matters of substance seem to have been lost in the debate and I'm concerned about the possibility that GWB is correct in his confidence in her.

I would ask her this: "How old, plus or minus a billion years, is the planet earth?"

Science tells us, of course, it's on the order of 4.5 billion years. If she's part of the evangelical read-the-bible-literally crowd she would have a hard time answering this. If she doesn't give a straight answer, I would ask her--do you think it's closer to a five thousand or to five billion?

Posted by: Ralph666 | October 12, 2005 01:01 PM

I agree with Ralph that "how old is the earth?" is a good litmus test question for whether or not someone is a crazy bible thumper, but I don't think it's an appropriate question for a potential judge. The questions posed to nominees should get at their views on the role of judges and of their ideas about the constitution, not about personal policy views. A good justice needs to divorce personal politics and leanings from decision-making, even if most of our current Court isn't able to do this. I actually beleive Roberts will, although it's impossible to say for sure of course. For example, it makes no difference if an individual thinks that abortions are good or bad--that is a policy question for legislatures. What matters is whether or not a nominee believes that the Constitution prohibits states from criminalizing abortion. Personal pro-life or pro-choice politics has nothing to do with the legal/constitutional question. Similarly, "how old is the earth" will tell you a lot about a nominee's personal religious outlook, but it doesn't affect the interaction between the constitution, congress, and the states. Most readers will probably think my argument is naive since justices' personal politics certainly seem to play a major role in their judicial desicion-making, but what I am arguing is that we need to find principled individuals whose personal politics will not interfere with their judging. I think the best way to do that is look for candidates with careers devoted to the law itself rather to politics. Top appellate judges, professors, and practitioners can all fit the bill, but they should show evidence of high-level legal thought through their writing, and less evidence of partisan political involvement. Not because judges shouldn't be allowed to have personal politics, but because those who have been publicly active in politics are more likely to be more committed to policy goals than to making fair legal/constitutional interpretations.

Posted by: Sonny | October 12, 2005 01:30 PM

Is it a little paranoid to suggest that maybe the administration is playing "bait and switch" with us on the Miers nomination? The scenario: She withdraws and the real candidate -- a 100 percent openly avowed conservative -- is named.

Posted by: naomi | October 12, 2005 01:38 PM

I've seen that theory here and there around the blogosphere, but I don't see how such a strategy would be helpful to the president. If he planned to nominate a conservative who would spark a big fight, why not just do it up front? How does it benefit him to get accused of cronyism first? Anyone?

Posted by: Emily Messner | October 12, 2005 01:49 PM

'If your strict interpretation of the Constitution instructed you to vote for a defendant but your religeous interpretations favored the plainiff, how would you vote?'
Assuming a truthfull answer of course!

Posted by: Dave S | October 12, 2005 02:23 PM

Regarding this week's topic: George Bush doesn't care about Iraq people.

Posted by: Bob P. | October 12, 2005 02:27 PM

If there's any bait and switch here, I think it is with Miers' beliefs. Liberals are being baited by the hope that she must be somewhat of a moderate - Harry Reid apparently suggested her to Bush, the crazy conservatives are throwing a tantrum about her, etc. So she must be OK, right? But I think the switch is that she'll be a Clarence Thomas in ruling based on her ideology and her mood, with scant regard for the law.

And what's more, she's Bush's bitch.

So, I don't think the bait and switch involves her and some other candidate. I think the bait and switch involves what we're being led to believe she is like and what she'll really turn out to be like.


Posted by: Derek | October 12, 2005 02:52 PM

Oh, and my thoughts re the Iraqi constitution?

I believe it should be written in nice, neat cursive (with a fountain pen or quill) on aged parchment.

There, I've said it. I know I'm going out on a limb here.


Posted by: Derek | October 12, 2005 02:56 PM

I would ask her to what extent she believes that citizens and communities should be protected from the negative externalities of corporations, and under what circumstances she believes citizens and communities should be entitled to punitive damages in response to the malfeasance of corporations.

Posted by: james | October 12, 2005 03:40 PM

I don't count a single Democrat vote against the candidate: The "Gang of 14" already signed off on her, Senator Reid positively glowed. Barring a surprise revelation from her past (a possibility -- reportedly she was not vetted by White House staff), a public meltdown by Miers in the hearings, or (a shocking thought!) a conservative filibuster, she joins the Court this autumn.

Posted by: Paul Mollica | October 12, 2005 04:01 PM

Bush is neither smart, thoughtful, nor ideological. He is ignorant, arrogant, and pragmatic. That is what makes him so dangerous. Take it from this Texan who has met him, there is not a "conviction" in his body. This decision is specifically picking a crony that he knows well and is friends with the family. As an attorney, it also seems to work out real well that: 1. All of her conversations during the past years at the White House will be "priviledged" and 2. She will have look at for the President's best interest in potentially dozens of cases that may come before the court dealing with this administration. Recuse herself? Can you say Scalia.

Posted by: worn out in Texas | October 12, 2005 04:09 PM

Bush plain and simply said that her religion is what should convince all the unconvinced that she will be "on their side." What more need be said to believe that this is NOT an okay choice?

Posted by: barbara | October 12, 2005 04:19 PM

Two big ifs: If Miers makes it to the hearings, and if there is not a scandal that disqualifies her, she will be confirmed. The Senate hearings are not as rigorous vetting of constitutional theorists as some believe. In fact, the senators often show a minimal understanding of legal theory and for any lawyer who survived the socratic grilling of first year law school, the hearings do not pose that much of an intellectual challenge (even if they are a personal and political challenge). When the hearings have gotten tough, it is inquiry into the personal (Thomas) or beating down simplistic ideologues (Bork), not because of the fine points of constitutional debate. By all accounts, Miers is a capable lawyer who presents well. She will easily exceed the lowered expectations the conservative backlash has created, and her performance will be judged a success.

Posted by: Bryce | October 12, 2005 04:23 PM

Reading comments from Democrats is hilarious!

As for cronyism, it makes sense to appoint your cronies to administration positions (they all do it, none more so than Clinton) because you need someone you can trust AND from the public's perspective administrations only last 4 or 8 years. The Supreme Court is supposed to be independent of the executive branch and therefore cronyism should be off limits.

As for her alleged conservatism, I don't want some bible beater voting to overturn Roe vs. Wade because she thinks abortion is murder. I want a thoughtful conservative to overturn Roe vs. Wade by launching a devastating attack on the horrendously dubious legal foundation embedded in the original Roe (and Doe) cases. Roberts has the intellect to do that. Miers does not.

Posted by: Jeff | October 12, 2005 04:25 PM

I agree with Jeff in everything except the assertion that it takes a powerful intellect to attack the legal foundation of Roe. As I pointed out earlier, I beleive in a distinction between policy and constitutionality. In fact, I think I am in an exceedingly small minority that is actually pro-choice as a policy matter but think Roe was wrongly decided as a constitutional question. If even a "social liberal" like me can see that there is no basis in the Constitution for the "right to privacy" it shouldn't be too hard to to make the right arguments. The truly hard part is distinguishing a case on any rationale basis, which is a problem if we beleive in stare decisis. At this point stare decisis is a strong factor in leaving Roe alone. But then again, wrong but old doesn't guarantee survival, as the court showed us with Plessy/Brown.

Posted by: Sonny | October 12, 2005 04:40 PM


"I want a thoughtful conservative to overturn Roe vs. Wade by launching a devastating attack on the horrendously dubious legal foundation embedded in the original Roe (and Doe) cases."

Is your desire to overturn the ruling a pro-life choice or a legal argument against a flawed ruling?

Either way... a "devasting attack" that resulted in removing the right of any woman to have a safe and private procedure performed by an experienced doctor would be a devastating retreat into the dark ages for all women.

No man has an argument against a woman's right to choose that will ever be more powerful than her right to make a decision about what's right for her own life. And as long as women keep educating their daughters about their rights, personal responsibility and that it IS her right to choose, you "pro-life" men will never succeed in relegating another woman to the desperation of a coat hangar or a knitting needle.

Posted by: Jenny from AZ | October 13, 2005 12:29 PM

Terribly sorry to point this out in such a public forum, but the correct phrase would be, "With all the other big news, it sort of sneaked up on me." There is no such word as "snuck". A small matter perhaps, but isn't it unfortunate we didn't place a higher priority on such things as grammar in the 2000 Presidential election!

Posted by: Nate | October 13, 2005 01:07 PM

Since Republicans (Bush notably) have refused to actually call for the overturning of Roe, we don't actually have much of a debate about this (abortion is an area that is reduced to bumper sticker slogans and then, in polite company, not discussed). So for years arm chair lawyers have been referring to how poorly decided Roe was without ever really being called to task for it. So I want to hear it: beyond the simplistic argument that the word privacy does not appear in the constitution, what is the devestating attack against Roe and the dozens of other decisions that have marked out a clear line between the autonomy of the individual and the whims of a majority? How do you read the Constitution/Bill of Rights without seeing a clear counter-majoritiarian impulse in favor of individual rights? And what is more basic to the concept of individual freedom from statist interference than the privacy to decide issues of sexuality and reproduction?

Why do Republicans see interference in the free market as an issue of liberty, but not interference in the sexual preferences or reproductive choices of individuals?

I want to know the intellectual position for overturning Roe that does not start with a premise that a fetus is a human life and abortion is a murder of a human life. I want to know why privacy/autonomy/liberty is so bad, and why they don't see it when they read the Constitution.

Posted by: Bryce | October 13, 2005 04:32 PM


"There is no such word as "snuck"."

Terribly sorry to point this out in such a public forum, but you're wrong. Maybe next time before you make a post like that, you might want to check a little-known book called the Oxford Shorter English Dictionary. In it, you would have found that "snuck" is an acceptable verb form of "sneak". Though "sneaked" is the commonly used verb, "snuck" is noted as being an acceptable, though chiefly the American usage. You'll find "sneak" and all its verbs in said dictionary somewhere between "shlub" and "snot". Frankly, I would trust the Oxford Shorter English Dictionary over your knowledge of grammar.

Oh, and while I'm on the matter, you said that this issue of "snuck" was:

"a small matter perhaps, but isn't it unfortunate we didn't place a higher priority on such things as grammar in the 2000 Presidential election!"

What are you talking about? I thought the problems of the 2000 election were caused by things like pregnant and hanging chads, butterfly ballots and Supreme Court justices. Pray tell, what role did grammar play in all this?


Posted by: Derek | October 14, 2005 02:15 PM

While I am flattered to be immortalized alongside the usual boogeymen such as Will, Buchanan, Krauthammer and others, I was somewhat troubled to see the decreasing standards of journalistic professionalism manifested through Messner's blog in a blatantly backward representation of my views...and as a libertarian, I admit taking some offense at being labeled as a member of the 'right'! :-)

In hastily snipping one sentence from my blog to support a premise of a divided "right wing" that blames Democrats for the Miers controversy, Messner overlooked the whole POINT of the post.

Not only did I specify my personal disapproval on grounds of cronyism, unanswered details of the Texas Lotto scandal, and general lack of qualifications...I specifically stated that many conservatives and GOP shared the same concern.

In fact, I wrote 3 seperate articles on te Miers confirmation proceedings including one with a prophetic prediction seemingly fulfilled in the nomination of Alito.

Representing the Washington Post, I guess I expected a bit more journalistic professionalism and would encourage a bit more care and integrity. Actually reading the articles referred to, and representing them correctly would be a good start.

Posted by: Matthew Goldseth | December 15, 2005 01:26 PM

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