Conservatives Split Over Harriet Miers

Many prominent Republicans are expressing concern about the nomination of Harriet Miers to the Supreme Court and others have remained silent.

Conservatives Split Over Bush Nominee (AP)

Some of President Bush’s conservative supporters are unconvinced by his defense of Supreme Court nominee Harriet Miers, creating dissension in a Republican Party that until now has reverently approved Bush’s judicial candidates. Conservatives in some cases are expressing outright opposition, some are in wait-and-see mode and some are silent, all bad signs for a Bush administration used to having the full backing of all wings of the GOP when it takes on the Senate’s minority Democrats over judicial selection.

“I’m getting reports on both sides,” said Paul Weyrich, a conservative leader from the Free Congress Foundation. “Some people are quite enthused about her and other people are very upset. The grass-roots are not happy, I can tell you that.”

Miers, meanwhile, is trying to build up support by visiting senators at the Capitol on Wednesday, scheduling stops with GOP Sen. John Cornyn and top Judiciary Committee Democrat Patrick Leahy.

Bush defended the 60-year-old nominee at a Rose Garden news conference Tuesday, repeatedly implying that conservatives should trust his judgment in picking Miers to succeed the retiring Sandra Day O’Connor. While insisting that he doesn’t recall ever talking to Miers about abortion, he pointedly said, “I know her heart.” Bush, who emphasized that he’s a proud conservative, said he hoped his supporters were listening. “I’m interested in someone who shares my philosophy and will share it 20 years from now,” he said.


[O]ne of the Senate’s senior conservatives, Orrin Hatch, R-Utah, was one of the first senators to announce his support for Miers. “A lot of my fellow conservatives are concerned, but they don’t know her as I do,” said Hatch, a former chairman of the Senate Judiciary Committee. “She’s going to basically do what the president thinks she should, and that is be a strict constructionist” when it comes to deciding constitutional issues.

But many Senate conservatives are withholding judgment, and House Republican leaders have said little to nothing about Miers. Kansas Sen. Sam Brownback, a Judiciary Committee Republican and a possible GOP 2008 candidate, even invoked a favorite target of conservatives when talking about Miers. “There’s precious little to go on and a deep concern that this would be a Souter-type candidate,” Brownback said, referring to Supreme Court Justice David Souter, a little-known judge nominated for the court by the first President Bush who later turned out to be liberal on the bench. “The circumstances seem to be very similar,” said Brownback, who will meet with Miers on Thursday. “Not much track record, people vouching for her, yet indications of a different thought pattern earlier in life.”


Senate Democrats, meanwhile, are mostly holding their fire. “With so much at stake, we shouldn’t rush to judgment about this or any other nominee, but even at this early stage of the confirmation process, I will say that I am impressed by what I know about Harriet Miers,” said Senate Democratic leader Harry Reid, who has not indicated how he will vote on Miers.

Among prominent conservative bloggers, Hugh Hewitt is almost alone in defending the Miers choice. Steve Bainbridge and Rammesh Ponnuru offer stern rejoinders. Bainbridge puts some metaphors into a blender and observes,

The problem is that people like Hewitt and Kmiec want us to take on faith the proposition that Harriet Miers will “shun legislating from the bench.” Yet, neither Hugh nor [Doug] Kmiec marshall any evidence from Miers’ record to support that proposition. Hugh’s repeated card – and its the only one he has to play, in my view – is to ask us to trust Bush.

George Will, granted never a strong ally of the Bush family, has a blistering column out this morning asking, Can This Nomination Be Justified? and arguing that “trust Bush” is not a strategy conservatives should rely upon.

Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption — perhaps rebuttable but certainly in need of rebutting — should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court’s tasks. The president’s “argument” for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections.

Furthermore, there is no reason to believe that Miers’s nomination resulted from the president’s careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers’s name probably would not have appeared in any of the 10,000 places on those lists.

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked — to ensure a considered response from him, he had been told in advance that he would be asked — whether McCain-Feingold’s core purposes are unconstitutional. He unhesitatingly said, “I agree.” Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, “I do.”

President Bush meanwhile, says “trust me.”

Defends Supreme Court Pick — President Reassures Conservatives on A Range of Issues (WaPo, A01)

Seeking to quell a revolt within his own party, President Bush offered a robust defense of his new Supreme Court nominee as well as his own conservative credentials yesterday in the face of Republican complaints that he has drifted from his ideological moorings in recent weeks.

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.”

I trust Bush as to the content of Miers’ character. I’ve taken it as a given that she’s a decent human being and that she’s likely at least a small-c conservative politically. But the president is not a Movement Conservative. He parrots lines about “legislating from the bench” but I’m not sure he truly cares about the judiciary, except insofar that it’s an obstacle to his policy preferences. So, for the time being, I will following the advice of the late President Ronald Reagan: Trust but verify.

There is a certain delicious irony here. Enough of the president’s usual allies are concerned that the nominee could be defeated if the Democrats unite against Miers. Yet, while that would be a short term political victory, it is almost inconceivable that a follow-on nominee would be more to their liking than Miers. So, they will have to fight to get her confirmed or risk having her followed by a much more likely conservative that they would be hard-pressed to defeat.


Josh Marshall, coming from the other side of the aisle, agrees:

In the case of John Roberts the president served up a nominee who was pretty clearly a down-the-line conservative but also, in the sense of value-neutral credentials and qualifications, certainly qualified for the job. With Miers, you have someone with what might be real moderate tendencies, but also someone who on pretty much every count seems unqualified for the position.

So what to do?

Certainly one thing to do is sit back and relish the brewing fight between the principled wingnuts and the confirmed Bush toadies. At the same time, it must be occurring to at least some Dems that, at least in ideological terms, they could likely do far worse than Miers. In any case, set that all aside and focus on the fact that Miers has been involved — often deeply involved — in pretty much everything that the White House has been trying to keep secret for going on five years. That should make for interesting questioning.

Indeed. Yet another reason this was a poor choice.


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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Anderson says:

    I’m not sure he truly cares about the judiciary, except insofar that it’s an obstacle to his policy preferences.

    Always happy to record the times when JJ and I are in 100% agreement.

  2. Dodd says:

    I must say, the endorsement from my old Con Law prof (Kmiec) is a pretty powerful antidote to my own concerns about Miers. Prof. Kmiec is no slouch in such matters and, perhaps more importantly for ill-at-ease conservatives, is a committed and principled strict constructionist.

    I tend to doubt Bush’s game here is so deep that he’s chosen a conscious strategy of getting liberals to use up all their powder defeating one of his nominees (as they are clearly slavering to do, no matter the justification) and thus pave the way for a younger, more obviously qualified but also more obviously conservative nominee they’d be hard-pressed politically to deny after defeating one. But, hey, if that’s his game, who better to play sacrificial lamb than someone who’s intensely loyal to him?

  3. Bithead says:

    I keep seeing the word ‘unqualified’ tossed around like it was cannon.

    Dare I ask, on what basis is she unqualified?

  4. Borlos says:

    Has Frank Luntz circulated a memo yet on how we should pitch the Miers candidacy? I am assuming, if we just continue to harp on about what “good character” she has, she’ll sail through.

    “Character” is a nice, vacuous word that people associate with judges. As long as we repeat it enough, liberal opposition will undoubtedly succum to our will.