Miers, Bush, & the GOP renegades

Bush is now Miers, and he's staked everything on her:The rift on the right silenced some of the president's normally reliable advocates in the Senate. While fellow Texans rallied to support the Dallas lawyer, hesitancy among other Republicans impelled the president and first lady Laura Bush to speak out in defense of the nomination.

The effect was to raise their personal stakes in the Miers choice even higher. Her rejection, they implied, would not challenge merely her own qualifications but the Bushes' judgment about her worth.

Thus, with one fateful choice, the president both heightened the political bet he made and managed, for the first time, to open a major breach within his coalition of supporters. In a misguided effort to reassure them, her backers then touted her adult conversion to a fundamentalist faith -- implying that the religious right should take comfort. The criticism of the tactic caused the White House to reverse course.

Placating them won't work, anymore than it does on the left. The polls I saw showed about 65% support for Miers by conservatives. That's potential of 35% opposition to Miers isn't enough to stop her confirmation, and it might not be even enough to sway some or any of the potential 2008 Republican Presidential candiates to vote against her, though it might. If it does, then this will be the first shot across the bow of the Republican establishment in quite a while. But what would it mean? It seems a loose confederacy of insurgents. Some paleocons, some theocons, some libertarians. It would seem that the Republicans are having the same sort of split on their side that we see on ours, over ideology vs partisanship (or idealism vs pragmatism).

To really see them gain traction against the GOP establishment, the leader would need to combine this opposition with some sort of contra-Bush positionover the Iraq occupation-- that would be tough. Easier would be enlarging the already forming rift over illegal immigration; or a clamour for devisive social amendments. I don't see it happening, just the potential.

Over such issues, Bush will not compromise, but there's a forming groundswell ready to fight him over the matters in the Republican Party. But is there an '08 leader for the GOP that will go there? Brownback or Gingrich comes to mind more than any other candidate, maybe Santorum changes course? Tancredo is around as well... Though the Miers opposition shows the potency, it'll likely take '06 losses for this anti-establishment movement to emerge substantially within the Republican ranks.

Update: Will Marshall, via Ryan Liza, Life After Bush

This is intra-conservative warfare between the faith-based conservatives and the reality-based conservatives." And, by "faith," he means not faith in God, but faith in Bush. In other words, the real split over Miers is between conservatives who worship Bush and those who worship conservatism. One camp believes in the infallibility of the president. The other camp believes the evidence before them. Fred Barnes and James Dobson are faith-based conservatives. Bill Kristol and Gary Bauer are reality-based conservatives. Hugh Hewitt is faith-based. Ramesh Ponnuru is reality-based.

Ultimate Stealth

Check out Progressive Law Blogs for the latest on Miers, Fitzmas, and other legal matters.

Forget actually having a record of rulings or, like Roberts, claiming that everything you ever wrote in your entire life was the opinion of your client / superiors rather than yourself, Miers has taken the threshold of stealth nominees to an entirely new level. She didn't even answer the questions on the private questionnaire distributed to her by the Senate judiciary committee:

The Supreme Court nomination of Harriet E. Miers suffered another setback on Wednesday when the Republican and Democratic leaders of the Senate Judiciary Committee asked her to resubmit parts of her judicial questionnaire, saying various members had found her responses "inadequate,""insufficient" and "insulting."

Senators Arlen Specter of Pennsylvania, the committee chairman, and Patrick J. Leahy of Vermont, the senior Democrat, sent Ms. Miers a letter faulting what they called incomplete responses about her legal career, her work in the White House, her potential conflicts on cases involving the administration and the suspension of her license by the District of Columbia Bar.

Their letter also asked her to provide detailed accounts of private reassurances about her views given by the White House or its allies to some conservative supporters who have been anxious about her positions on abortion and other social issues.

This is pretty absurd. It shows, once again, that the White House is far more willing to tell people like Dobson the truth about Miers than they are willing to tell the public. It also raises further questions about Miers competence: she can't even properly complete a questionnaire for the most important job in her life? It also shows the hole that Democrats dug themselves into when they allowed half of their caucus to vote for a stealth nominee like Roberts. In light of that vote, the Miers nomination and her refusal can almost be seen as understandable. After all, if Democrats were not willing to stand up to the White House's refusal to hand over important Solicitor's General documents involving Roberts, not to mention all of the other stealth aspects of his nomination listed above, one could only expect that the Bush administration would respond by releasing even less information about their next nominee.

And would it kill Senator Leahy to say he was insulted by this, when a reporter made it easy for him to give such a line? From the press conference on the matter:

Q Senator Leahy, are you insulted personally by her lack of responsiveness?

SEN. LEAHY: I have seen an incomplete questionnaire. We've sent out -- I thought -- a very good questionnaire. I was satisfied with the questionnaire that went out. Democrats and Republicans on the committee -- and you know this is a committee that goes across the political spectrum -- were satisfied with it. I don't know of anybody who would tell you in that committee, that they were satisfied with the responses. So I would describe myself as unsatisfied, and I have to be satisfied before I'll vote for anybody, Republican or Democrat.

You are playing far too nice Senator. The White House is giving you the middle finger on nominees, as they make it perfectly clear that they don't think they have to tell you anything about who they want on the court. If you want more responsiveness on Miers and future nominees, then you need to take a harsher stance against stealth than simply saying you are "unsatisfied."

Recoil in Horror from the Miers Nomination

Over at Is That Legal?, Eric Mullar listened in to the White House sponsored conference call on Miers. The quotes he highlights demonstrate a complete lack of support for judicial independence and concern for the Constitution. Truly sickening stuff.

First, throw the Constitution out of the window. Eric quotes Sarah Taylor, the White House director of political affairs (emphasis in original):

Harriet Miers is "somebody who not only makes decisions based on what's in the Constitution but makes decisions that ... uh ... uh, she believes strongly in." Eric then notes (emphasis in original): Oh. So Justice Miers' own strong beliefs will inform her constitutional interpretation? Really? I thought that was what judges weren't supposed to do. Second, say hello to court packing and cronyism. Jay Sekulow said the following on the conference call:I'm involved in three three cases at the Court this Term, and believe me: I want Harriet Meirs up there voting on these critical cases." Oh. My. God. Eric notes:This, folks, is an outrage. The White House has lined up a lawyer with cases now pending before the United States Supreme Court to get on a White-House-sponsored conference call to tell conservatives that they should support the nominee so that she can vote in his pending cases! (...)

And if Harriet Miers has an inkling that the White House is lining up Sekulow to make this particular pitch, why, I would say that's disqualifying right there.

And, for good measure, throw judicial independence out the window, because Miers is just going to do whatever Bush thinks the court should do. Richard Land of the Southern Bapist convention said the following on the call:One of the things that someone as a sixth-generation Texan that I want to add to this call and that is this: The two things that are probably ... there are two virtues that are valued as highly as any virtue can be valued in the Texas culture, and those two virtues are courage and loyalty. Courage and loyalty. And this President, he knows that Harriet Miers is also a Texan, and, with a degree of understanding that would never have to be articulated, he and she both understand that if she were to get on the Court and she were to rule in ways that were contrary to the ways that the president would want her to approach her role as a justice it would be a deep personal betrayal and would be perceived as such by both by him and by her. This goes beyond any issue of stealth nominees or qualified nominees. This is the White House openly and publicly doing away with an independent judiciary and completely ignoring the Constitution itself. This is more than just cronyism--this is anti-modern feudalism where laws are made not on any pre-existing set of documents or precedents, but instead by the personal inklings and fealty ties of a small, privileged few. The White House has said that she is going to vote on her personal beliefs. The White House has said that she will vote the way Bush wants her to vote. The White House has said that they are putting her on the court to swing some important cases that are about to come before the court. These are not things that a modern, representative democracy does. This is more than enough to demand that the Miers nomination be withdrawn. This is probably enough to demand Bush's impeachment, all by itself. Utterly grotesque. Recoil in horror indeed.

Public Split On Miers

Even though the leadership of the Democratic and Republican parties are probably going to give Miers a pass, the public is almost evenly split on her nomination:The poll, taken Monday and Tuesday, indicated many people are concerned about Miers' lack of judicial experience.

Asked to rate Bush's nomination of Miers, 44 percent of those polled described it as excellent or good, while 41 percent said it was fair or poor and 15 percent had no opinion.

Among respondents who described themselves as conservative, 58 percent said the Miers pick was excellent or good, and 29 percent thought it was only fair or poor. By contrast, 77 percent of conservatives in a July poll thought the Roberts nomination was excellent or good, and just 13 percent found it fair or poor.

The sampling error for the polling data from conservative respondents was plus or minus 6 percentage points.

Among those who consider themselves moderates and liberals, the difference in support between Miers and Roberts was statistically insignificant.

44-41 is very marginal. Roberts never approached these numbers. Right now, even with the leadership of both parties on board, the possibility of a progressive Democratic - Christian right alliance to stop Miers remains at least somehwat in play.

My question is, would stopping Miers be a good idea? She might be the best we can get. It is also possible that our more pressing, short-term goals would be to whip the Democrats on the judciary committee into shape so that they ask better questions, demand more straight answers, and demand that the White House release more documents in the future. This would help ensure that all future nominees over the next three years are forced to meet a much higher standard that the super-stealth cronyism displayed by Bush so far. However, when it comes to stopping Miers, I remain agnostic.

Thus, I leave the question to you. Take the poll on the front page.

Thoughts On Miers

I'll have more later tonight. Here is what I have for now:
  • First things first: check out what progressive law bloggers are saying. Talk Left has a wide variety of information. Balkinizaiton focuses on how little we know about Miers. Is That Legal? has information on Miers wholeheartedly supporting judicial "activism"Douglas Berman asks questions about Miers work with Exodus Ministry.

  • Lordy, lordy--our failure on Roberts is going to bite us in the ass now. This is why Democrats had to do a better job of fighting Roberts not on ideological grounds, but purely on the grounds that a stealth candidate is unacceptable. Now, it is literally impossible to fight an even stealthier candidate. We will have absolutely no way to know much of anything about Miers until she starts making rulings. And half of all Democrats Senators now have almost no way of fighting Roberts because they already sanctioned stealth candidates through Roberts.

  • The MSM spin thus far has been gold. Absolute gold. One of the main elements of the narrative that I have seen has focused upon how this is another example of Bush's "cronyism." Did I really hear Wold Blitzer say that? Amazing. I guess it is easy to close the triangle when both the left and the right are pointing out the obvious.

  • While the media narrative in the first 48 hours is going better than last time, as Georgia10 notes, the hearings have the opportunity of being pure political gold to finally have public discussion of the many Bush scandals that have either never received play in the MSM, or have mentioned and then pushed aside. We can't blow this one.

  • That Harry Reid apparently suggested Miers to Bush cuts both ways. On the one hand, it means that there will not be a large-scale fight over Miers, unless it comes from a strange alliance of conservative Republicans and progressive Democrats. On the other hand, it makes Democrats look strong and Bush weak. After all, he went with one of the people the Democratic leadership suggested, rather than trying to ram through whoever they wanted.

  • That conservatives are upset with this pick also cuts both ways. On the one hand, it makes them look like unreasonable zealots who want nothing short of theocracy, not to mention possibly further straining the relationship between the Republican leadership and their base. On the other hand, it makes Miers look instantly mainstream. In fact, although I know it is a longshot, I wonder if acting displeased with Miers was actually a planned Republican Noise Machine talking point, instantly making her look like a unity pick of some sort.

  • We could probably stop Miers if we wanted to--and I am talking in an up and down vote, not via the filibuster--but I am not expecting much from Democrats and advocacy groups on this one. Incidentally, I also do not believe that this will cause a long-term rift between the theocon base and the Republican leadership. In a couple of months they will probably fall back into line.
You can use this as an open thread on Miers.

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