Tuesday, October 18, 2005


David Frum is on-target locked and loaded and will remain so. This is not going to go away, no matter how much the administration tries to bob and weave.

No repackaging by the administration should help Harriet Miers' case now, though their political savvy should not be misunderestimated. Fortunately, Frum is making points to which both liberals and conservatives -- all Americans -- should be paying attention:

And John Fund's rather shocking story in today's Wall Street Journal may portend a coming reversal in Senate Democrats' early acceptance of the Miers nomination....

2) If Fund is right, the White House was acting in such a way as to persuade a group of religious leaders that they were being given more information on a nomination than would be given to the US Senate. Congress - and yes Republicans in Congress - already feel that the White House treats them with contempt. Now congressional-executive relations have been damaged even further, with potentially lethal consequences for everything that remains of the president's legislative agenda.

3) The stunt also threatens Republican relations with religious conservatives. The assurances offered to the Arlington Group were almost certainly empty. Newsweek is reporting that the White House has also recruited New Hampshire politico Tom Rath to threaten to oppose the presidential bids of any senator who opposes Harriet Miers. But Rath is as responsible as anyone for putting David Souter on the court. What on earth did they say to him? And if those assurances were contradictory, why should anybody believe either?

There is so much in the above to unpackage, but let us start with Sunday's weeklies, wherein the rebranding of Miers was declared.

Mike Allen reported in this week's TIME that the push to confirm Miers will shift:

In other words, stop debating her religion and personality and start focusing on her résumé as a pioneering female lawyer of the Southwest.

Howard Fineman and Richard Wolffe in Newsweek say that longtime Bush ally Tom Rath is pushing would-be presidential candidates with his New Hampshire connections. Further, Bush allies have been issued new talking points on Miers: nix the faith talk (perhaps the signal has been sent loudly enough?) and push the bona fides:

The Bush White House would agree, but view the nature of the stakes differently: they can't afford to see their already beleaguered boss, his job-approval numbers dragging on the pavement, humiliated by his own party. So they are releasing Harriet 2.0, focusing on an inch-by-inch ground game. The president has conservative allies of his own, chief among them a Jedi of Beltway combat, Newt Gingrich. New talking points were issued to them late last week, focusing on Miers's rather thin list of qualifications—bar-association presidencies, corporate legal work and a term as a member of the Dallas City Council. The talking points were notable for their absence of even a passing reference to her religion.

Over two long weeks, the adminsitration has proffered a virtual jambalaya of reasons to support Miers. Flash back to the Washington Post of October 5:

A day after tapping White House counsel Harriet Miers for associate justice, Bush appeared in the Rose Garden to reject charges of cronyism, criticism of her scant constitutional background and suspicion of her judicial philosophy. He presented her as the most qualified candidate in the country and called on the Senate to confirm her by Thanksgiving. Their friendship, he added, should be seen as a plus, not a minus.

"I picked the best person I could find," Bush said at his first full-fledged White House news conference since May. "People know we're close. But you got to understand, because of our closeness, I know the character of the person. It's one thing to say a person can read the law -- and that's important -- and understand the law. But what also matters . . . is the intangibles. To me, a person's strength of character counts a lot."

So, here we have Miers cast as the best person Bush could find and this was at his first "full-fledged" news conference in five months -- five months with a war going on and major hurricanes in the Gulf!

On that same day, George F. Will launched a barrage into the weak waterline of the "most qualified" argument.

The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.

The next day, October 6, the Washington Post lead page A-01 with a contentious argument between the loyal and the rebellious in the GOP.

White House adviser Ed Gillespie suggested that some of the unease about Miers "has a whiff of sexism and a whiff of elitism." Irate participants erupted and demanded that he take it back. Gillespie later said he did not mean to accuse anyone in the room but "was talking more broadly" about criticism of Miers.

(How this mess moved apace over the early days of October!)

This same charge was echoed by Laura Bush almost a week later, Washington Post. When the bona fides rightly were called into question and party loyalty crumbled, insults were plied -- the Sex Card was played.

Charles Krauthammer on October 7 joined the fray distinctly anti-Miers:

There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? ...

It will be argued that this criticism is elitist. But this is not about the Ivy League. The issue is not the venue of Miers's constitutional scholarship, experience and engagement. The issue is their nonexistence.

Moreover, the Supreme Court is an elite institution. It is not one of the "popular" branches of government.

Thus passed the first week of this ill-conceived nomination for the intelligentsia of the conservative movement. But things also got religious.

During that week of criticism James Dobson alluded to some inside information about Harriet Miers -- information that convinced the pro-life conservative to back the nominee.

Yet, the hypocrisy of the Bush administration floating information to the religious right to bolster support for a nominee after frowning on similar questions about John Roberts did not go unnoticed -- by the GOP.

Rich Lowry of the National Review wrote on Tuesday, October 11:

The nomination of Harriet Miers to the Supreme Court is foundering, but President Bush is confident that she will be confirmed. Bush thus displays a touching faith in the power of hypocrisy, double standards, and contradictions to see his nominee through. The case for Miers is an unholy mess, an opportunistic collection of whatever rhetorical flotsam happens to be at hand.

The White House and its allies have long argued that it is wrong to bring a judicial nominee's faith into the discussion about his merits, and any attempt to do so amounts to religious bigotry. When it was suggested that John Roberts's Catholic faith might be an area for inquiry in his confirmation, White House allies recoiled in horror.

Now the White House tells conservatives that Miers will vote the right way because she's a born-again Christian.

Dobson has tried to back off this political and social insider trading and talks of Miers accomplishments have been and will continue to be shoved into the newscycle.

Religion, however, has a pesky habit of remaining front-and-center once it is invoked -- especially when people are taking notes.

Yesterday in the Opinion Journal, John Fund dug up the following:

According to the notes of the call, Mr. Dobson introduced them by saying, "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."

What followed, according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. 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."

Matters are worse today. None other than Senator Arlen Specter -- the distinguished chair of the Senate's judiciary committee -- has found himself in a he-said she-said with Miers. CNN:

After their meeting, Specter told reporters that Miers said she believed the 1965 case of Griswold v. Connecticut -- a landmark ruling establishing the right to privacy -- was "rightly decided."

But when the White House took exception to Specter's comments, the Pennsylvania Republican released a statement saying Miers later called him to tell him he had "misunderstood" her answer. (Full story)

Specter said Miers, in the later phone call, told him she had not taken a position on either Griswold or the right to privacy, the legal underpinning for the 1973 Roe v. Wade decision legalizing abortion.

This is enough to make your head spin, but let us jump back to David Frum's excerpt that lead off this entry. Frum is, after all, the spearhead of a vaunted vanguard doing the Constitution's work on this nominee.

Bush and his cronies have presented their fellow crony as the best candidate that could be found, in a search she was conducting. They have nodded and winked that she is going to vote one way on something of tremendous importance to society and constitutional law. Then there was this mess with Specter.

Frum noted that there is little reason to believe that the administration was honest with their proxies and the religious right. What is certain is Specter has left enough room to bring this subject up with Miers -- and he will.

A poorly defined nominee may invite even more contentious hearings than a well defined one. Arlen Specter said he'd call Dobson to testify, and this latest round of "yes but no" does not resolve the underlying questions.

The religious move has proved unprofitable to the administration and confusing to the public.

Now we shall see proudly displayed the curriculum vitae of this nominee. We are fortunate, our constitution is fortunate, that the Bush administration will make this mistake. The dubious résumé of Harriet Miers has already come under attack from George F. Will, among others. The administration is marching their loyalists into a battlefield already prepped against them.

Miers should not even be allowed the honor of a Supreme Court confirmation hearing. There is too much at risk if she is allowed to get that far. Political pressure from Bush and his allies may push her to a vote, may even push her to a confirmation. She does not have the curriculum vitae for such an honor. There are many deserving citizens that are required, by the spirit of the Constitution and the sacrifices of our forebearers, to be ahead of Miers for this honor, privilege and duty.

One ought to be careful not to besmear Miers too much. She is a successful lawyer and an important ally to the president of the United States. No doubt, she'd make a fine circuit court nominee.


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