Miers Nomination: Charge Up the Freon and Keep on Chillin'

There's been enough hot air unleashed over President Bush's nomination of Harriet Miers to the United States Supreme Court to melt the polar ice caps. For the sake of mother earth, it's time to turn down the thermostat and keep on chillin'.

It's been a week of wild rumors and speculation in the Washington punditocracy. Some even falsely suggesting that Miers had cut off courtesy visits with Senators and that she might possibly ask President Bush to withdraw her name.

Perhaps it's time, past time, that we review President Bush's nomination of Harriet Miers in the context of his record of judicial nominations and other acts as President:

President Bush promised judicial nominees for the Supreme Court "In the mold of Scalia and Thomas."

Let's take a look back at Clarence Thomas before he ascended to the high court.

Ken Masugi, who worked with Thomas at the Equal Employment Opportunity Commission sees a parallel to Miers in record, accomplishments and judicial experience. Masugi reminds us that Thomas was:

Called a lightweight scholar, an affirmative action appointee, and even a dangerous thinker for proposing that the Declaration of Independence gave meaning to the Constitution. Those were conservative criticisms. Thomas supporter George Will referred to his "half-baked" natural law theories.

And Thomas was not a lifelong conservative:

From "Judging Thomas" by Ken Foskett: Like many blacks of his generation, Thomas was drawn to the Black Power Movement. He devoured books by black nationalists like Malcolm X, and donned army fatigues, black boots, and a beret. "When he came looking like that, he looked like he was ready for war," Thomas's friend recalls. He protested the Vietnam War, even marching on the Pentagon.

The Hedgehog reports that Thomas's legal career was undistinguished to say the least:

I don't think Justice Thomas's pre-SCOTUS career would be described even as that of a "fine lawyer." It looks like a fairly undistinguished legal career with lots of political positions and bureaucratic administration thrown in (albeit at high levels). It's not clear to me that Thomas had "years of practice" in constitutional law, or that he had an "intense interest" in the subject.

Thomas had been on the federal bench for less than a year when President Bush (41) appointed him to fill the seat of the retiring Thurgood Marshall. The rest, as they say, is history.

How Does Miers Measure Up to Other Supremes?

Click on the box above and test your knowledge.

President Bush's Record on Nominations

President Bush has appointed a series of known and respected conservatives, Priscilla Owen , Janice Rogers Brown , Thomas B. Griffith, William H. Pryor Jr., Richard Allan Griffin, David McKeague. And that's just those confirmed since May.

Are conservatives happy with those nominees, now sitting judges?

The President also appointed Bolton to the UN OVER the heads of filibustering Democrats.

Are conservatives happy Bolton is at the UN?

The Bush Record: Conservatives Happy?

Are conservatives happy with the President's stand on Iraq and the war? No backing down or compromise there.

And how about those tax cuts? Are conservatives happy with those?

Sure, there are areas where many of us may disagree with President Bush: immigration, federal spending, farm bill, steel quotas, lack of any veto etc.

Remember that President Bush was barely elected in 2000 and in his first two years the nation was evenly split with Democrats controlling the Senate a portion of that time. Only in the last three years have we slowly, almost painfully, increased our margins in both the House and the Senate in 2002 and 2004. In 2004 we re-elected President Bush with increased vote totals from women, black, hispanic and Jewish voters.

We Made a Choice Last November:

We had TWO choices on November 4, 2004: Bush or Kerry.

Would conservative be happier with President Kerry's judicial nominees?

Would conservatives be happier with President Kerry's foreign policy? Global test anyone?

And what about federal spending under Kerry? How about illegal immigrants receiving expanded rights at the expense of citizens?

When one of the current crop of carping conservatives gets elected President, then he or she can do it their way. And the rest of us will be free to complain.

But if you voted for Bush, and respect his accomplishments and have faith in his leadership, then you should support your man. If you don't support him, you support the Democrats by default.

Keep up the civil war and start getting used to House Speaker Nancy Pelosi" and this headline: "Pro-Choice liberal nominated by President Hillary for Supreme Court seat."

Eyes on the Prize: A New Supreme Court

Nearly every conservative would agree that the goal in appointing justices to the federal bench, and most importantly to the Supreme Court is to install persons who would steer the court back to it's traditional roots in interpreting the law and the constitution, not making law, nor usurping state powers.

President Bush has remained remarkably consistent in that regard. And it also bears reminding that Harriet Miers has been at his right hand throughout the selection and confirmation process for judges. A commenter at Hugh Hewitt had this insight that is well worth sharing:

Miers was, I am sure, involved in many discussions about what it was that W wanted in a nominee. She knows that he wants an Originialist, that he wants someone in the mold of Scalia and Thomas. She also knows that the court is his legacy.

As a woman of faith and obvious integrity, do people honestly believe you would accept the nomination while knowing in her heart that she would shatter all of her president's plans?

I doubt it. If she was going to be a Souter, don't people realize that if she had any integrity she would say, "Thank you Mr. President, but I am not what you are looking for."

As I recall, Bush 1 made the mistake of picking someone else's compadre, not his own. W knows what he is doing.

A reader and frequent commenter at Mike's America had this inital thought on Miers as posted at Right Wing News: "I'd like to think this nomination was part of a Grand Plan, I really would. We'll see soon enough."

There have been a great many complaints that Miers was not a brilliant constitutional scholar, nor a longtime movement conservative. But consider Socrates qualifications for judges:

Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.-- Socrates

Wouldn't it fit that "Grand Plan" to have a justice on the Supreme Court who was NOT part of the judicial establishment that has brought us to where the court is today?

There's no law that says a justice on the court need be a lawyer, let alone a constitutional scholar. And if you go back and take the Miers quiz again, you'll notice that many current and former justices lacked that background.

Lastly, and especially since conservatives are the focus of this commentary, I'm reminded of the following quote from William F. Buckley, Jr. that I heard him speak many years ago and have long remembered:

"I'd rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University." William F. Buckley, Jr.

The Damage if Miers Withdraws

Many conservatives continue to howl vociferously that the Miers nomination should be withdrawn, prior to a hearing before the Senate Judiciary Committee, slated to begin on November 7.

Speaking of William F. Buckley, Jr., the online version of his famous conservative publication National Review has been a hotbed of anti-Miers suspicion. In it's free wheeling "The Corner" section, Rich Lowry posted the following on October 21: "The likeliest result is that everyone forgets about Harriet Miers within a month, and we all unite around the new nominee."

He's right that we may forget about Miers and move on. But move on to where?

After Robert Bork was defeated by Senate Democrats in his bid to join the Supreme Court in 1987, President Reagan nominated Federal Judge Douglas Ginsburg to take his place. It was later learned that Ginsburg admitted to smoking Marijuana earlier in his life and his nomination was withdrawn. At that point, the presidency was so politically weakened that a "unity" nominee, Anthony Kennedy was selected.

Want the Justice Kennedy History to Repeat Itself?

It's perhaps more true that this whole conservative dustup will be forgotten shortly after Miers is confirmed, and votes on the court as President Bush expects her too, in the mold of Scalia or Thomas. Should she later be the deciding vote to overturn Roe versus Wade and return the power to decide that issue to the states, the Holy Grail of conservatism, those currently opposing her will, as Ricky Ricardo used to say to Lucy :"have some 'splainin' to do."

Many of those who would withdraw this nomination before it even came to a hearing before the Judiciary Committee were among those calling loudest for President Bush's previous nominees to receive an "up or down vote."Should we know turn that notion on it's head simply because we have an entrenched view of who or what a Supreme Court justice should be?

Sources, Inspirations and Fellow Believers:

Flopping Aces had links to Ken Masugi insight on Clarence Thomas and Hugh Hewit. Thanks as always.

The Mary Hunter at Bacon Bits sparked the rant which formed the backbone of the above post.

Carol Platt Liebau has been on the front lines of this discussion at Confirm Them where I recently suggested they change the name of the site to: "Confirm Them only if I agree with them 100% otherwise toss the Republicans to the wolves."

Beldar,a Texas lawyer, has also represented a reasoned perspective on the issue and carried the message to friends at National Reviews: "The Corner."

I don't want to leave out the Dean Emeritus of the Boston University School of Law, Ronald A. Cass: "Stop Whining Right Choices and the Courts." And of course the excellent analysis from The American Thinker: "Don't Misunderestimate Miers and Melanie Kirkpatrick "Give Her a Break" editorial in the Wall Street Journal.