October 4, 2005

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Political Tabula Rasa

So Bush has nominated Harriet Miers as an Associate Justice of the United States Supreme Court, to replace Sandra Day O'Connor. It's a strange pick, and one that no one seems to be wild about. The reaction from everyone seems to just be head scratching.

But she didn't come from the judiciary!

First, there's the complaint about her lack of judicial experience. She has not served as a judge. Everyone's up in arms because they can't go through her old opinions and decide whether or not they'll like her. But this is a very modern concern that is out of touch with the history of the court. Until the 70's, it was very common for Supreme Court justices to come from the legislature, executive administration, or even academia. In fact, since 1933, ten of 34 nominees have come from the executive branch.

It's only in the last thirty years that appellate judges have been seen as the only options. In fact, guess which justice was the last to be nominated without first having served as a judge? Rehnquist. And some extremely notable justices have in the past come from elsewhere, including Felix Frankfurter (great name), Louis Brandeis, Earl Warren, Hugo Black, and William Douglas.

Having now experienced about two months of law school, it seems to me a very short leap from practicing law (at least, as a general counsel, or some other unspecialized practice) to judging. All law students and lawyers read and interpret statutes and common law opinions, particularly precedential cases. Based on those precedents, they decide how current issues will play out. That's the same as judging. I could see an argument if she had been highly specialized as a bankruptcy attorney or something for the last twenty years, or Bush's press secretary, but she was his counsel, a.k.a. top staff lawyer. All she did was read precedent and make recommendations on how current decisions would play out. At least as regards this complaint, I think she's not necessarily unqualified.

But it's an example of extreme cronyism!

The next thing about which everyone is complaining, both the right and the left, is how much the nomination stinks of cronyism. Harriet Miers was Bush's personal attorney for years, and has followed him up the ladder. And yeah, the whole thing does stink. Tim Boyd proposed a Slant article about how the next Bush pick would be something ridiculous like his longtime housekeeper Consuela (and he'd get to nominate the first hispanic). It certainly would have been difficult for him to pick anyone closer to him than Miers besides, perhaps, Gonzales.

The fact that is so obviously cronyistical (I anticipate 'crony' being adopted to many new parts of speech over the next month, and I just wanted to get that ball rolling) makes the nomination assailable from both sides. Conservatives aren't happy. People recognize this for what it is. If Democrats were to mount a strong attack and start to get the public at all vocal about it, it is highly possible that conservatives would also start to reject the pick.

But she isn't even a conservative!

We don't really know what she is, philosophically. She was a democrat until fifteen or so years ago. She has, in the past, professed support for gays and lesbians to have full civil rights, and has been in support of increased funding/aid for AIDS related stuff. She voted for property tax increases while on the Dallas City Council. She supports the establishment and development of an international criminal court. She thinks sexual orientation should not be a bar to adoption. And she donated money to the Al Gore Presidential campaign and several other Democrats' political campaigns in 1987 and 1988.

Nevertheless, it seems that she is generally moderate. Most of her private practice involved pro-business work. My impression is that she was quite moderate, and then sided with the Republicans when it looked like she had something to gain by aligning herself with her client, Bush.

And if we really need proof that she can't be all that bad, just look how pissed off the conservative talking heads are about the nomination. Rush Limbaugh is pissed, Michelle Malkin is pissed, David Frum, who knows her well, isn't happy, Instapundit is unhappy...

When those people are unhappy with a political situation, it usually means we should be happy about it.

But this nomination just reflects Bush's current political weakness!

Yeah, this move does reflect his weakness. He couldn't nominate an extreme conservative, knowing it would a huge fight for confirmation that he can't afford right now with his lowest approval rating yet, Katrina crap, our military occupation of Iraq going poorly, scandals in the Republican party, etc.

"I do see this as a response to a weakened political situation, a willingness to do what it takes to maximize his influence," said longtime Bush watcher Bruce Buchanan, a political scientist at the University of Texas.

What should the Dems do?

This is the really interesting point. I think the Republicans are currently weak enough, the Democrats currently strong enough, the public fed up enough, and the candidate weak enough that the Democrats could defeat this nomination. But do we want to?

First of all, by the small amount of information we have, she seems much more moderate than anyone else we thought he might nominate. She actually seems like not too bad of a pick for liberals, all things considered. Everything I've heard about her makes her seem like a less-intelligent but similarly-opinioned Sandy O. If we did get her rejected, who would be the next nomination? Almost surely someone worse for liberals.

So what's the advantage to us quashing the nom? Well, mainly that it would severely weaken Bush. If the public wasn't behind the nomination (and I think such a zeitgeist could be made), and the Democrats were unified against it, a lot of Republicans would have to start to defect like they had to with the social security plan. They have to be reelected some time. If we managed to kill the nomination, I think it would mean not only that Bush would lose his power, but that all of the current field of Republican candidates that are seen as part of Bush's posse (Frist, Santorum, etc) would also lose a lot of power, and, likely, their chance at the Presidency.

This would mean we'd have a more moderate Republican candidate up against a strengthened Democratic party. If we still lose, then we would have lost anyway, but then it's a more moderate Republican that would win.

But again, the next nominee would probably be someone we'd be less happy with, and we'd almost certainly have to give them an easy nominaton so as to not just look like obstructionists.

What to do, what to do? I say, based on what we know so far, confirm her. She doesn't seem so bad. But we'll see what else comes out about her.

Posted at October 4, 2005 5:02 PM | Comments (2)

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