Some Preliminary Observations on the Miers Nomination

By DHinMI

In an email earlier today, Mimikatz made a sage observation about the Miers announcement. After several of us had partially gamed out several scenarios to explain the bizarre nomination of Harriet Miers, she observed that “these possibilities are all reasons why it is bad to come right out of the chute with any definitive position, other than ‘Hmmm…a lot of questions here. We really need a lot more information on her to make a judgment, given her lack of experience as an appellate lawyer or judge or major political office holder.” I fully agree; I think Miers is still a little too unknown for us to figure out in the less than 12 hours that’s passed since Bush announced her nomination. But I think there are some tentative observations that are worth making.

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First, I don’t think there’s enough information circulating yet to really have a clear idea of her ideological leanings. Based on the fevered rantings of the right wing, I think it’s far to early to conclude she’s a sure confirmation. (Ezra Klein has a good roundup of winger reaction.) And I’m still completely agnostic on whether the Dems should try to block her with a filibuster, try to block her by picking of Repubs to join them in voting no, or give her a free pass. If they’re going to fight the nomination, I don’t know what issues or principles they should use as the basis of their objections. And if she is approved, I’m nto sure it will be with the support of either ideological wing of the Senate. She might be approved without of the votes of 20 or so Democrats, and without the votes of 20 or so Republicans. I think the possibilities of how this will play out really haven’t be fully comprehended by any of the participants in this political dance, much less us dance judges watching from the sides.

There are, however, several things I’ll say with certitude. First, Harriet Miers looks funny. I mean, weird, like she’s a member of the women’s auxiliary of the John Birch Society, circa 1957. Or maybe a demented extra in some John Waters film set in 1962 Baltimore. Should it matter? That’s irrelevant, because it does. Expect to see a sprucing up of Ms. Miers soon, so she looks more like Karen Hughes. The Repubs can handle women who look like they’re from the suburban seventies, like The Ice Storm without the key exchange, but they know the country can’t handle someone who dresses that kitschy without even realizing it. And if you think looks don’t matter, tell me this: what was your first impression of Robert Bork? (And if she were sent over from central casting, she sure wouldn’t be named “Harriet.”)

She’s also not a qualified candidate. She doesn’t appear to have any appellate experience. Even her legal work appears to have been in the direction of representing her firm as much or more than representing the firm’s clients. She went to a middle-tier law school, she doesn’t appear to have any academic writings, and she doesn’t look to be someone who’s thought much about the law in the deeper, comparative sense that one would if you were an appellate attorney, an academic or a judge. And not having worked in a legislative body, she maybe not have much of a sense of the development and growth of statutes.

This appointment is a big “screw you, I don’t give a crap about you” by Bush to the religious right. Miers may turn out to be an Ashcroft-like adherent to Oliver Cromwellian social and legal policy, but there’s nothing in her record to make that a sure bet. And the right wing didn’t work their tails off and deliver millions of extra votes to Bush and the Republicans in 2004 so they could roll the dice and hope they didn’t just inherent another David Souter. They earned a sure thing from Bush, and he’s refused to give it to them. To make things worse for the wingers, this wasn’t the Rehnquist seat, this was the O’Connor seat, the one they needed to flip. And while Miers, as a corporate attorney, will probably be very pro-business, just like O’Connor (corporations’ best friend on the Supreme Court), it’s quite possible she will be just as squishy on social issues. (If nothing else, we know that as far back as 1989, when she ran for and won a seat to the Dallas city council, that she was willing to at least meet with and share respectful dialogue with leadership of the Dallas gay community, something that lots of Democrats were unwilling to do in 1989, and in some parts of the country, are afraid or unwilling to do even today.)

It’s also worth discussing publicly that this nomination is a sign of Bush’s weakness. If he were strong, he would have appointed someone who would satisfy his base, and ram through the nomination. Instead, he’s appointed someone who seems to have satisfied nobody. Why? I’ll speculate about two reasons. One, he’s afraid that anyone with stated views, especially since this is for O’Connor’s swing seat, might be too vulnerable. Second, and more ominously for Bush, and for the country, he may be afraid of what’s coming down the pike in the Fitzgerald investigation of the Valerie Plame outing, and is more concerned with having a justice who will protect his sorry ass than one who will protect the constitution and be a good justice.

Whatever the motivation, it would behoove Senate Democrats to use the nomination of Bush’s personal lawyer (who cleaned up messes like his AWOL months with the Alabama Air National Guard) who’s become his White House lawyer (and was thus likely involved, at least indirectly, in any discussions about Bush and Cheney’s exposure to the Fitzgerald investigation) , to talk about the Bush scandals. And she should be “Brownie-fied.” The should take every opportunity to ask the rhetorical question, “if this woman wasn’t personally known to George W. Bush, would she ever have been considered for a seat on the highest court in America? At a time when the Bush administration is finally being exposed as a nest of cronyism, Democrats should turn Miers into yet the latest example.

There’s also the intriguing questions about her personality and personal life.  Some folks are already engaging in titillating whispering about her sexual orientation. It is extremely rare for an accomplished person to reach 60 years of age and never having been married unless they’re legally prohibited from marrying the person they love, because that person happens to be of the same sex. So I suppose it’s possible that Harriet Miers is a closeted lesbian; God knows she wouldn’t be the first closted Republican, and she won’t be the last./ I mean, if there weren’t closeted Republicans, who would staff Capitol Hill? But I’ll offer up another theory on why she’s 60 years old, successful, wealthy, and never been married: she’s weird.

Check out this, written as she ascended to the job of White House counsel: 

She has also earned a reputation as exacting, detail-oriented, and meticulous -- to a fault, her critics say.

"She can't separate the forest from the trees," says one former White House staffer…

Yet it's not at all clear how Miers will fare in a job that includes a substantial amount of policy work. As staff secretary, she held the critical and demanding job of vetting every piece of paper that landed on Bush's desk or ended up in his nightly briefing book.

By all accounts, Miers' thoroughness and her reputation as an "honest broker," eager to allow all viewpoints to be heard, stood her in good stead as staff secretary…

Her critics say the problem goes beyond what Miers does or doesn't know about policy -- and right back to a near-obsession with detail and process.

"There's a stalemate there," says one person familiar with the chief of staff's office. "The process can't move forward because you have to get every conceivable piece of background before you can move onto the next level. People are talking about a focus on process that is so intense it gets in the way of substance."

One former White House official familiar with both the counsel's office and Miers is more blunt.

"She failed in Card's office for two reasons," the official says. "First, because she can't make a decision, and second, because she can't delegate, she can't let anything go. And having failed for those two reasons, they move her to be the counsel for the president, which requires exactly those two talents."…

In 1996, at an Anti-Defamation League Jurisprudence Award ceremony, Bush introduced Miers as a "pit bull in Size 6 shoes," a tag line that has persisted through the years, in part because colorful anecdotes or descriptions about Miers are notoriously difficult to find.

"She's not a back-slapper. She's very businesslike," says Texas Supreme Court Justice Nathan Hecht, who has dated Miers over the years and has known her since he first became a lawyer at Locke Purnell in 1975.

"She's also very kind. She always remembers everybody's birthday, and has a present for them. She'll be finding a present for somebody in the middle of the night," he says. "'Can't it wait until next week?' 'No,' she'd say, 'It has to be done now.'"

What does all this mean? Well, I’m not Charles Krauthammer or Bill Frist, so I won’t make a psychiatric or psychological diagnosis of her. But in terms of behavior—the rigidity, the inability let things go, the obsessiveness of shopping for someone’s birthday present in the middle of the night because “it has to be done now,” the inability to separate forest for trees, the inability of anyone to come up with anything interesting to say about her personality or evidence of her being engaging with other people—her actions and the descriptions of her personality make her look like she’s probably more than a little prone to obsessive behavior or possibly even has Asperger’s Syndrome. While it’s probably nothing that would ever warrant a clinical diagnosis, if nothing else, she seems to be quite odd and eccentric, and not particularly prone to exhibit any empathy or great understanding.

So what’s going to happen? Heck if I know. But despite what you may be reading elsewhere, I don’t think anyone else really knows either.

Comments

[DHinMI]

A lot of these thoughts were first tossed out during email discussions with my TNH partners, who supplied most of the links. Of course, it goes without saying that the mistakes are ours, but any original insights are entirely my own...or something like that.

[DemFromCT]

heh. Unlike my posts, where my insights are entirely everyone else's. ;-)

Fascinating, and something that just needs more time to play out before we know What It All Means.

[RonK, Seattle]

Rare combo. At once a defensive nomination, and a "F*** the World" nomination.

[DemFromCT]

here's how the Note described it this am:

One senior Democratic source on Capitol Hill confirms to ABC News that Democratic Leader Harry Reid signaled to Bush that Miers would be acceptable.

Remember: Any pick would have set off political landmines, and in the end Miers seems as "safe" a pick for confirmation — without a bloody fight — as anyone else, perhaps the "safest" pick.

We bet in the end this means no filibuster (threat) — or any Democratic Senators coming out to oppose her right away. It also flies in the face of the Notion that the President would have to pick someone to "satisfy" the base.

But/and with even less a paper trail than John Roberts, if she insists on not discussing her views (as seems very likely), it is possible that a right-left coalition in the Senate and among the interest groups could oppose her. But we seriously doubt that. She might lose a few votes on each extreme, and some outside groups (and bloggers) will scream about a pig-in-poke, but the White House has bet (as it rarely does) on a win based on taking the center (and having it hold).

After another round of assurances that this time the process to replace a Supreme Court justice would be a "war" and "Armageddon," the White House has a reasonable chance of avoiding that — again.

And/but it also seems to bring into doubt one (and perhaps two) of the President's campaign promises on the Court. First, it is hard to argue that Miers is, based on her career, in the mold of Scalia and Thomas. How the White House has tried to convince the right of that — and how they will now — will be interesting to Note. But, of course, the Administration did just that — to our amazement — on Roberts. Senator Brownback, over to you.

Second, even some senior Republicans have said in the last week that they found it unlikely that Miers could be painted as the kind of "intellectual giant" that the President has said he would look for.

The biggest political question right now is how groups on the right (not directly affiliated with the White House operation) — especially those who demanded a nominee determined to overturn Roe — will react.

Has anything changed since then?

[Coldblue Steele]

But despite what you may be reading elsewhere, I don’t think anyone else really knows either.

Truer words were never spoken.

[A Greeny Dem from CT]

Love all the speculation about the pick; that Bush has protection of his hiney in mind (as the Plame story unravels) is especially compelling. There's always the chance, too, that a pick from the innermost circle is signalling a mounting insecurity in Junior.

[DemFromCT]

this is fun, even if meaningless:

Well, the initial reaction from the AOL crowd isn't overwhelming on the Miers pick, and the issue of Bush's judgement is now something to think about, especially in the aftermath of the "Brownie, you're doing a heck of a job" mistake.

[Mimikatz]

After thinking all day about this, it is still a bizarre pick. I just think that Bush went, in the end, with someone he was comfortable with and trusted. That indicates he is feeling pretty bereft at this point, or he would have swaggered out there and appointed Priscilla Owen or someone like that.

This truly mediocre pick is pretty demeaning to the Court from someone who promised to bring back dignity to the government. Clinton picked a towering figure in women's rights in Ruth Bader Ginzburg. Maybe Bush can't tell the difference between a co-author of the first major casebook on sex-based discrimination and the first woman president of the Texas State Bar. Maybe Bush really doesn't care about anything but protecting his own hide.

And what is it about Bush and these adoring single women? Does Condi know about Harriet? Did we slip into another dimension a month or so ago and no one told me? DH is right. Weird. Her and the pick itself. And the whole place we now find ourselves in. Just weird.

What should the Dems do? Draw a contrast with Clinton's picks. Challenge Bush on her resume. Compare her to Roberts. Demand to know her views because there is so little to go on. And above all talk about cronyism, and how of all places it is clearly wrong for the Supreme Court, especially with so many GOP figures facing criminal prosecution.

[YK]

It sounds like Miers' "meticulous, detail-oriented" style becomes a handicap when she gets into unfamiliar territory (I'm extrapolating from the comments about her work in Andy Card's office). That could be a bad sign, if she goes to the Supreme Court without having much relevant experience.

And did you know that Harriet Miers and Laura Bush went to the same school (Southern Methodist University) at about the same time (circa 1967)? Wikipedia is amazing.

[Mimikatz]

Here is someone who said it much better than I--Alexander Hamilton, from Federalist No. 76, courtesy of Eugene Volokh:

"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."

[rj]

Clearly Hamilton never knew Bush.

Yeah, this is somehow both an insulting and an insecure pick, and reveals as well as anything that the boy king fundamentally just doesn't understand, or really care about, his job. (And that goes for his posse as well.) So yeah, whatever the fate of the nomination itself, the hearings on this one seem tailor-made for dramatizing some key themes. And no, we can't know yet how she'll perform if she does get confirmed; but the obsession with detail, the inability to make decisions, and the difficulty delegating make it a good bet she'd be a dream to clerk for.

Two gratuitous personal notes: 1) So is Justice Hecht intimately familiar with her late-night shopping habits? Or just reporting second-hand? 2)How does Bush know all these women's shoe sizes?

[rj]

DemFromCT, I actually found the silly AOL poll kinda interesting, just given what it suggests about how the probably-less-involved are feeling in general (the "choice of Cheney" numbers pretty much match the "choice of Miers" numbers).

And as for the definitely-more-involved, Viguerie's breathing fire (from Aravosis via Atrios):
http://americablog.blogspot.com/2005/10/i-think-conservatives-are-going-to-try.html

Wonder if Kansas is finally getting fed up with the shell game...wonder if we'll end up facing a nutjob after all?

[jonnybutter]

'Publius' over at Legal Fiction has a pretty good post on all this...

The really interesting question – and the one above my pay scale – is why social conservatives have developed (psychologically speaking) such hatred for the federal judiciary that they are willing to overlook even the criminal negligence that is Iraq for the hope that Bush will nominate Justices and judges they like. That’s not to say that a Court nomination isn’t important, but compared to losing a war, it’s small potatoes. But for whatever reason, they sure do hate them some judges. And for years and years, they’ve dreamed of having an opportunity to hoist one of their own on the Court to shift the balance their way. And with O’Connor stepping down, their long wait had ended. At long last, the moment had come – and Bush failed them.

...ultimately arguing - I think convincingly - that his base won't abandon Bush in the end. He cites the obvious reason - that they have nowhere else to go - but also invokes the getting-to-be-proverbial 'battered spouse syndrome' metaphor in what I don't think is a glib way; amid heavy competition, the Christo-Federalist Society vision of the way the Fed. Judiciary ought to be is really the most fantastic (in the literal sense), delusional part of 'movement' conservatism. It's almost as if the fundies NEED the cycle of wooing-and-betrayal over and over. I really wonder how it would sit with them if they actually got everything they wanted (and their 'philosophy' was put to the test in the real world) - probably not very well (after some initial crowing). Like all terrorists and demogogues, their very reason for being depends crucially on never 'winning'.

Of course the anger you hear from the Right at the moment is genuine, but...I bet they'll get over it, at least to some extent.

[Meteor Blades]

What I am hoping for, counting on, demanding in my teensy little voice, is what Mimikatz has laid out: Tough questions and tough follow-ups to inadequate answers to those questions. And tough votes if the inadequate answers remain inadequate. I really truly absolutely utterly despise the idea being put forth by some people already and probably more people later that the Dems should roll over on the nomination because Bush will likely nominate Owen or somebody else more to the liking of reactionaries. I guess I'd rather have somebody with a mind of her own on the Court, even if aggressively conservative, than another Clarence Thomas who cribs opinions from Scalia or Roberts.

Besides the questions that Mimikatz suggests, I hope somebody puts the elephant in the room - whether or not we've got indictments by then: Did you, Ms. Miers, have discussions about legal problems with anyone at the White House concerning Valerie Plame Wilson?

Moreover, I hope somebody follows Paul Rosenberg's suggestion and asks:

Are you a meddler, Ms. Miers? Would you bring Big Brother into the bedrooms, living rooms, and hospital rooms of ordinary Americans, meddling and intruding into the most personal and difficult decisions that American citizens make about their lives and their families?

Or, more specifically, to cut through all the lawyerly gobble-de-gook, and customary evasions, let me put it like this:

You told David Frum that George W. Bush, was the most brilliant man you had ever met. Last March, President Bush flew back from Texas to sign a law passed by Congress, intended to force-feed Terri Schiavo against her husband's wishes, to let her die, as he said she would have wanted to do. Is that an example of Bush's brilliance?

[Tim]

Maybe it's a payoff. She was a secretary in the White House and then Counsel, she may know things that Bush cannot have revealed.

[Melanie]

I think Tim has it right: she knows where the bodies are buried. But today we have the right calling for her head so this is going to get interesting.

[Kagro X]

I think he just likes her. This just doesn't ring true for the Bush "administration," this idea of blackmailing your way from staff secretary to the SCOTUS. If Bush wanted someone else, and she insisted that it had to be her because she knew where the bodies were buried, he'd bury her body.

Mimikatz, that's a nice find. And how cute, too! "Ashamed!" Tee hee! I don't know what's more quaint, this "shame" stuff, or the Geneva Conventions.

[TenThousandThings]

I have a bad feeling about this. Not about whether she would be a competent justice. I don't know what to think about that at this point. My first instinct is no, unless she is now on Zoloft or some such (she sounds like someone who would benefit from that). But I do think that the wingnuts and the ratings-driven media will not be able to resist ripping this woman to shreds with questions and innuendo about her personal life--think "crazy" instead of incompetent or inexperienced, and even uglier things about her never-married status.

[TenThousandThings]

Oh, and if Reid did in fact suggest to Bush that Miers would be a good choice, then he would have to come out and say what he did yesterday. Better to get that out of the way now. So he isn't stuck with a behind-the-scenes "but you said she would be okay" back-and-forth with the president about Miers--this way it's all out in the open. Plus, he can always change his mind later, and get big media play for doing so.

[emptywheel]

rj

Yeah, it's pretty clear Texas was not part of the country (future country) when Hamilton wrote those words.

Meanwhile, Atrios shows us that the real questions to ask might concern the famous August 6 2001 PDB.

[Mimikatz]

Overnight thoughts, although I may have said this already:

The pick shows once again that Bush isn't serious about governing and doesn't really understand how government works and its importance. It's all a game to him and Rove, and an extendion of themselves, like medieval kngship or something.

But the Dems do pretend to be the party that not only IS serious about government but knows how to do it. So get serious about Miers. I understand very well how cloistered and insular supreme courts can get. But "someone with real-world experience" doesn't mean "anyone" with real-world experience qualifies. What a Supreme Court does is not decide cases in a factual sense, but resolve issues of law that can't be resolved any other way. It is an intellectually rigorous enterprise, because the judges are constructing the legal framework for lower courts and political bodies to follow. I just see no evidence she has the kind of mind that takes. So the Dems need to make this about qualifications and cronyism, the things Hamilton talked about.

And if she is confirmed, the most important thing is whose wing she ends up under.

[greyhair]

Sure sounds pretty obsessive. And this would be a perfect complement to someone as narcissitic as Bush. But here's why I think she was nominated:

http://greyhairsblog.blogspot.com/2005/10/buds.html

Bush only takes care of Bush.

[orchid314]

Loved most of your post, DHinMI, but have to take exception with your description of Miers as inordinately strange because she's never been married, had children or been in a long-term relationship (that we know about). I thought the left was supposed to be accepting of people who don't have a cookie-cutter profile, rather than subtly undermining them because they don't fit the mainstream definition of success? If anything, I think Miers' less traditional path might be one of the few things that would qualify her for the bench, as it might have given her empathy for those who are outside the mainstream. That's a complete guess on my part, but why should her personal life (or lack thereof) automatically be seen as a liability?

Second, her obsessive behavior at work. There are tons, and I mean tons, of corporate drones out there who are workaholics and hitch their star to their boss's wagon in order to climb up the career ladder, as apparently Miers has done. It might be pathological, but if so, it's as widespread as overeating, and probably a compensation for being one of the first women in a position of power in the Texas legal community.

God knows, I'm not advocating Miers should be named to SCOTUS. She's patently unqualified based on her professional record. But to show that, we don't need to bring her personal life into it, or treat it with a wink-wink, nudge-nudge kind of derision.

[DHinMI]

Orchid, you should reread because I didn't say she was wierd because she's unmarried, I speculated that she's unmarried because she's wierd. And I said nothing about children; that was your addition, not mine.

And how many corporate drones do you know who remember everyone's birthday, and insist on getting their presents, even in the middle of the night, because it has to be done right then, and not at any other time?

There's nothing on the left that says you can't point out someone's strange, eccentric and possibly even bizarre behavior.

[rj]

I second Meteor Blades' additions to the good-question list, and (as always) pretty much everything Mimikatz has said. (Frum's reference to Miers being a "natural follower" -- which he excised from his post yesterday -- definitely highlights the importance of "whose wing she ends up under.")

The one area that's hitting me harder today is the Gitmo factor; I've been concerned about Roberts cutting Dear Leader too much slack, but this one...oy.