The Right Coast

October 04, 2005
More on the secret Miers
By Tom Smith

This little tidbit from the middle of the A section of the NYT today:

In each call and in a series of teleconferences throughout the day, representatives of the White House promised their conservative supporters that as White House counsel, Ms. Miers had played a central role in picking the many exemplars of conservatism among Mr. Bush's previous nominees. . . . Some of the efforts evidently bore fruit. By day's end, Mr. Dobson, one of the most influential evangelical conservatives, welcomed the nomination. "Some of what I know I am not at liberty to talk about," he said in an interview, explaining his decision to speak out in support of Ms. Miers. He declined to discuss his conversations with the White House.

What I think this means is that the WH is telling evangelical leaders that Miers is one of them, perhaps relaying what they heard from her pastor in Texas. She's been "under the water," or whatever the appropriate code would be. Or maybe she had some heart to heart with somebody and she said Jesus told her to vote to overturn Roe if she got the chance.

Even if Miers is a religiously conservative evangelical Christian, that does not reassure me much. True, if she were an Episcopalian, I would be that much more nervous, but in the end I don't think her religious commitments mean all that much as far as how she would decide cases.

The more I think about this nomination, the worse it seems. But then, I am so frequently wrong, perhaps that bodes well. Worst to me is that it is redolent of weakness. It is the sort of decision a President who feels weak would make. It is also completely conflicted. When Ms. Miers put her hat in the ring, who in the WH was supposed to say, "but, Mr. President, she's not qualified"? Anybody who torpedoed her would have to work with her in the future, which would not be fun. So the people closest to the process are immediately in a position of not being able to give candid advice -- a reason not to pick close cronies in the first place. Relatedly, the WH counsel's office traditionally is the place judicial candidates are vetted. So this is like your marriage counsellor telling you you should get divorced and marry her, or something. Total conflict of interest. Bush needs a lawyer or something to advise him on how to make decisions consistently with his duties of office. Oh that's right! His lawyer's the one getting nominated! Well, I'm sure her sense of law and propriety will dramatically improve once she is making unreviewable law for the whole country. Also, it looks like a weak president captured by his staff. Maybe this is too cynical, but I fear, utterly lovely in every conceivable respect though she may be, Ms. Miers may have sensed that when W was at his most embattled was the perfect time to cash in her big chip with the guy. And with threats from the Dems on one side, and your staff using that to help themselves on the other, what are you supposed to do? And don't imagine there was a soul in the WH saying, uh, maybe we should pick someone who is, like, really qualified? I don't know if there is a species in which the babies eat the parents, some spiders maybe, but if so, they should be called creepycrawly Whitehousestaffiensis. This has that look to me. It also looks very much like a deal with the Senate Democrats, a pick off their list of acceptable candidates, which makes one wonder why Bush and Rove thought that was necessary, unless they think things are going really badly, which maybe they are. Miers and Rove probably get along famously. How very nice for them.

I have been a critic of the Yale-Harvard-Supreme Court Clerk- etc. etc. mystique before, and I do think being overly impressed by liberal establishment credentials plays into the hands of the dark side. But really. I can't help but think W's not being a lawyer makes him a bit clueless about what a Supreme Court Justice should be. It's a very demanding job, both intellectually and morally. You put someone not up to the job up there and bad things happen. Bad things happen to prose -- read a Souter opinion (if you dare); bad things happen to philosophy (Kennedy) and bad things happen to law (O'Connor).

I fear that a year or two from now, we will be reading treakly pieces in the NYT about how Justice Miers grew in office, and law review articles will begin to appear on "The Emerging Jurisprudence of Justice Miers," the moderate, pragmatic, yet essentially conservative (in the true sense) (i.e., liberal), and deeply Christian, in the original sense of the word (i.e., liberal).

Well, it's not like W said he was going to appoint conservatives to the Court.