America in the Balance

MIERS REVISITED: WHAT WAS ALL THE

FUSS ABOUT?

by

Ken Eliasberg

As previously indicated, many Republican columnists and commentators were, to say the least, deeply disappointed in the nomination of Harriet Miers And these are men and women who are typically quite restrained in voicing criticism of this president and very measured on those occasions when they feel compelled to do so. In the case of Ms. Miers, however, both restraint and measure were set aside in the torrent of criticism of this nomination. I intend to share many of their comments with you, but before doing so, it might be worth while to indicate why we’re still talking about Harriet Miers? Why? Because this imbroglio was never really about Harriet Miers. It was always about the Supreme Court, the importance of making the right decision with regard to who is placed on this august body, and a potentially horrendous missed opportunity to alter the course of human events.

Before examining the critics and their criticism, it would be helpful to frame this discussion with a brief look at the disappointments that Republicans have had to historically endure with respect to such appointments. Actually, we need look no further than the current court to set the table for further review. Prior to this round of nominations, seven out of the nine justices on the court were Republican appointees—O’Connor, Souter, Kennedy, Stevens, Scalia, Rehnquist, and Thomas—although one would never guess from a review of the court’s decisions over the past half dozen or so years. The court’s decisions have, more often than not, tilted to the left.

And similar findings would result from a review of the court’s decisions over the last 4 decades. Indeed, shortly after President Eisenhower, left office, he was asked if he had made any mistakes during his 2 terms in office. He responded, yes, and they’re both on the Supreme Court. He was referring to Justices Brennan and Warren, the latter being the Chief Justice, the former Governor of California, and the leader of one of the most liberal Supreme Courts in our history. From this one might conclude that either:

1. Republicans are lax in the manner in which they go about

selecting prospective Supreme Court justices, or

2. They do a very poor job of vetting their nominees, or

3. That the views one holds while ascending to power might

change drastically once power is both secured and

guaranteed for life.

This last possibility seems unlikely since the change appears to have only worked one way—right to left. That is, there are very few instances in which a liberal appointee has moved to the right, but there are a number of instances in which the reverse has occurred, leading inescapably to the conclusion that Republicans don’t seem to attach the appropriate degree of importance to Supreme Court appointments, else they would do much better due diligence with respect to potential nominees. This would seem particularly odd since, in my opinion, this is the most important decision that a president is going to have to make (other than national security, of course).

With this touch of history in mind, let’s take a look at some of the criticism that was directed at Ms. Miers, by, as I’ve said, a very respected and respectable assortment of political pundits. The critics fell into one of the following 4 camps:

1. Miers must go.
2. Although Miers may not have been my first choice, we’ll

suspend judgement, pending the outcome of her

performance in front of the Senate and the Senate’s

decision on her nomination

3. We’ll go along with the President, whether we’re happy

or not, and

4. Not only are we unhappy with Miers, we’re unhappy with

Bush

At the outset let me make it clear that I fall into the first category—Miers had to go—but I’m definitely not a member of the 4^th category. Bush stays - I don’t believe in throwing the baby out with the bath water. Now onto the critics and the criticism.

Let’s first set the stage for the torrent of criticism by providing some indication of what were our expectations (and/or fears); thereafter, we can discuss how far short of these expectations the Miers nomination fell. An early warning was sounded by Bill Kristol as the Roberts’s confirmation seemed all but certain. Kristol, Editor of the Weekly Standard and son of Irving Kristol, one of the founders of the Neo-conservative movement, expressed concerns about the other shoe falling. Writing in the online version of his magazine (The Weekly Standard), in a column entitled “Snatching Defeat from the Jaws of Victory? [an almost prescient observation] Will Bush nominate a conservative for the O’Connor seat?” Kristol made these comments:

“So now everything rides on Bush’s nerve. Is he willing to fill the O’Connor seat with a conservative, and can he then make an effective case for that nominee to the Senate and the country. Bush will have three huge advantages in such an effort—a 55-seat GOP Senate majority, popular support for a more restrained and conservative court, and a plethora of well-qualified conservative candidates (consider Michael Luttig, Michael McConnell, Edith Jones, Priscilla Owen, Maura Corrigan, and Miguel Estrada, for starters). And there are in fact attractive arguments to be made for each of these candidates that go beyond the generic ones and that would make prospects for confirmation good. So there is no good reason for Bush to flinch. But he could.”

Well, he did. At that time Kristol was worried about Alberto Gonzales, whose name had been floated and apparently endorsed by Senator Cornyn of Texas (and who most conservatives found unappealing) As to the possibility of Bush considering Gonzales, Kristol had this to say: “If so, we conservative constitutionalists are in real trouble. More important, so is Bush.” At the time, Miers name had not yet been put on the table. As we shall see next week, Kristol (and many others) were even less impressed with her than they were with Gonzales (whose basic appeal was that he would be the first Hispanic Justice on the Court—frankly Miguel Estrada would be a much more appealing candidate and could probably have won if Bush were ready to go to the mat for him). More to follow.-