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October 11, 2005


No longer without notice. But does this mean Dems refuse her on this basis, or some other basis? And does this mean wavering repubs like Brownback and Allen suddenly vote for nuance and subtlety? Or is it merely collateral damage done to her appointment and confirmation that she agrees with Frist?

The practical consequences of how the SCOTUS feels about Senate rules is what, btw?

This seems like a corollary of the argument against her as a hack who will simply follow whatever the (Republican) political leadership wants.

Perhaps that is what has the fundamentalist right up in arms? They know that a majority of Americans don't really share their values. Miers is basically a vote for whatever the RNC wants. The RNC knows that overturning Roe v. Wade (as opposed to talking about it) is political suicide, so there's the problem ...

The practical consequences of how the SCOTUS feels about Senate rules is what, btw?

It's more a question of how she feels about the Constitution, and it's the *only* thing we know about how she feels about it, as KX points out. And it's bad. This is a very astute post. It makes all the sense in the world to use the Miers nomination to attack the NO itself. This is worth more than 5 cents, Kaygro X.

Dem: I don't know that any Democrats would reject her on this basis alone, but it should be part of their questioning. It's the only matter of constitutional import that she's known to have had a hand in. To the extent that questioning reveals that she holds only a partisan view of the Constitution, it would be basis for rejection, yes. It would certainly be an interesting opportunity to see how she deals with the inconsistancies in the legal theory behind the nuclear option. At the very least it would give us a clear picture of whether she thought the nuclear option was right because she thought the GOP could get away with it, or whether she really believed there was a constitutional basis for it.

Certainly she would be entitled to say she thinks differently about the subject when asked to approach it from a judicial perspective, as opposed to from a partisan political perspective. But we'd have to take her word for it that she is actually capable of thinking in judicial terms. That's the problem with never having served on the bench. She's never been called upon to be anything other than an advocate.

The practical effects of how the SCOTUS views the Senate don't really present themselves until the right case arises. But how does a Justice with the right "judicial temperament" consider a petition for certiorari in a case concerning, say, the powers afforded under the Constitution to the Senate exclusively? And how does a partisan, political lawyer dressed as a Justice and promoted for the purpose of extending executive power into the judiciary consider it? Judicial Watch sued the Senate in 2003 over the filibuster, making the now-familiar claim that the "advice and consent" clause prohibited judicial filibusters. They lost. Would they lose again today? Would they be granted cert? Miers' nomination alone is not enough to make me think the answer is yes, but who can guess with these people? What if the SCOTUS declared the judicial filibuster unconstitutional in order to take the heat off Senators?

TTT: I'm not entirely sure it's the fundamentalist right that's up in arms. Dobson's on board. He may be the only one from among that number, but I think the plan is to let evangelicals know she's "one of them," and hope that's enough. The most serious opposition has been from the "conservative" intelligentsia, and the Catholic right.

There's also the fact that how the SCOTUS feels about the Senate takes on a special importance at certain times. Like when the Senate is considering the nomination to the SCOTUS of someone who's played a large role in disrespecting it.

Doesn't your post hinge on the fiction that advocates believe what they argue? If so, but we're supposed to be concerned anyway because Miers has "never been called upon to be anything other than an advocate," then doesn't your post reduce to the argument that SOCTUS nominees should have prior judicial experience?

Do you think the post hinges on it? Do you think Miers could get away with that answer in the hearings, and not get the follow-up of, "Well, what is your belief on the constitutionality of the nuclear option?"

These sorts of dodges must eventually collapse under their own weight. I mean, doesn't the claim that Miers (or Roberts, or anyone else) shouldn't release their internal administration work product hinge on the claim that the president needs to be able to get the candid advice of counsel?

Well, which one is it? Is she providing her candid advice, or hiding behind the "fiction" of advocacy?

What's being overlooked, of course, is that Miers didn't have to be "a strong voice" for the nuclear option in order to do her job. Her job was the candidate search and the vetting process -- which makes one wonder if she had any role in the Michael Brown or Bernie Kerik nominations, by the way -- not as political liaison to the Senate. I think there are valid questions to be asked about why the White House counsel (or Deputy counsel) felt the need to meddle in Senate parliamentary procedure.

Now, do I prefer that SCOTUS nominees have prior judicial experience? Yes I do. No shame in that. Does my post reduce to that argument? My post makes that argument, perhaps. But if the questions is whether it reduces to the argument that SCOTUS nominees must have prior judicial experience, let's look into that.

How else might an accomplished constitutional lawyer demonstrate her abilities, besides sitting on the bench or being an advocate?

How about long tenure as a widely-published professor of constitutional law at a school of some reputation?

Even service as Attorney General or Solicitor General, while they can be considered advocacy positions, at least impart a daily education in constitutional law that a short-timer even in the White House Counsel's office just doesn't get.

I'm confused about Miers. She is not qualified and it is hard to believe Bush intended her as a real nominee. If she is rejected, it will make it harder politically to reject whoever's next. It will also take pressure off him to nominate a woman next time. If he wanted to get an extreme conservative white man on the court, then putting up a soft-central woman to get rejected seems like a good opener (and if she slips through somehow, great for him anyway).

What I guess I'm confused about is why she was on the Democrats' "no filibuster" list, if that is true. In fact, with the weak support she has from Republicans, she seems like a great case to filibuster -- it seems unlikely Republicans will muster the support to go nuclear on her behalf, where they certainly would for a hard-conservative nominee who might follow her. I'd like to see the Democrats take advantage of her to set filibuster precedent.

Kagro, looking forward to hearing your predictions on wetlands development case court just took. Seems like a good test case of Roberts' conservative credentials (pro-development anti-environment) being pitted against his touted respect for the law above ideology.

I've been looking at the psychology of the situation. A little Fristing if you will:


I think Harriet will be a reflection of who's she's been around. Bush is pugilistic, so Harriet would be pugilistic.....at to others.

If she wasn't a cameleon, there's no way she could survive in close proximity to Bush, particularly as a woman.

Like an old greyhaired numbskull, I didn't finish my thought....

Therefore, I think the Dems should vote for Harriet. I think at worst she'll become an O'Connor. At best, she may well rebel and be a liberal dream.

It's quite possible if you understand the psychology of folks like Harriet. I think the right wing senses this (since they're a walking bunch of neurotics) and is why they oppose her.

Sorry for a two part post.

I don't know, but I've got a different take on this. To me, it sounds like Ken Mehlman is trying to boost Harriet Miers' conservative credentials, by saying she was a driving force behind the Nuclear Option. But the evidence is mostly anecdotal, just like the rest of the article, describing how Miers is pro-choice, anti-gay, etc. I think Mehlman is probably exaggerating, to reassure the Republican base that Miers isn't a completely blank slate. (Either way, though, this does open the way to ask Miers some questions about the Nuclear Option.)

Oops, I meant "pro-life," not "pro-choice."

"Is she providing her candid advice, or hiding behind the 'fiction' of advocacy?"

These options aren't mutually exclusive. I see advocacy as an exercise in backwards planning. The client desires a particular result, and the lawyer constructs the best arguments to achieve that result. The lawyer's personal opinions are just irrelevant. Still, whether there's work product protection will affect how the arguments are communicated to the client. Without the protection, the lawyer has an incentive to omit, say, politically inconvenient counter-arguments (i.e. be less candid) that might otherwise be useful to the client in determining how to proceed. With the protection, the client gets a fuller picture. But in no case does "candid advice" mean "personal belief."

Not that it matters, but I think adequate credentials should be a threshold issue for a SCOTUS nominee. Miers would be an embarrassment to the Court. And I'd also be against a politically perfect liberal with similar lackluster credentials.

Just to make something Kagro already said more explicit, we have no idea what Miers' judicial temperament would be like. Almost literally no clue. That's a separate problem from her lack of familiarity with constitutional law.

I think you've carried the ball a little too far, RatIV. In "no case?"

Certainly candid advice may be entirely and completely given without including any personal belief. But candid advice, when freely given, can often be colored by personal belief. Especially when one has been hired by an employer who places a premium on being surrounded by a like-minded support staff.

Frankly, though, it could hardly matter less whether her position on the nuclear option was her own or someone else's. Whether she believed in it or advocated for it, it's so poorly reasoned, it would be an embarrassment to have to defend under questioning.

it could hardly matter less whether her position on the nuclear option was her own or someone else's.

Indeed, Miers herself is the mcguffin. It's about anything BUT her, really. I'd say the Unconstitutional Option is a good piece of horseshit to bring up right about now. Even Jim Bunning knows that the GOP losing control of the Senate within half a term is a definite possibility.

This is a brilliant line of attack because it does more than one thing at once; it pushes at the whole rotten structure (and besides, what else is there to do?). The NO is not a settled controversy and oughtn't be thought of as one. The idea is just as preposterous and appalling as it ever was, as KX took pains to reiterate. Bringing this up is a perfect way to snub and embarrass the Senate lock-steppers and the WH. Bush nominates a cipher, so treat her as one. As I never tire of telling my political dem friends lately (*they* probably tire of it): there's a difference between being rightous and self-rightous. Rightous is good. Standing up to power-grubbing radicals' attempt to subvert the constitution is rightous.

The NO is not a settled controversy, although I imagine there are some non-Gang GOP senators who'd probably rather talk about something else right now. My my.

"Whether she believed in it or advocated for it, it's so poorly reasoned, it would be an embarrassment to have to defend under questioning."

True. You've certainly made this obvious. I wonder, though, if she might be able to dodge all questions on this issue by citing the political question doctrine.

She could certainly try. I mean, I wouldn't bet against the use of any dodge she can think of.

Of course, I'd probably tell her that the political question dodge is one she has yet to earn the right to use, seeing as how she's not a judge and all.

I'd probably add that if she was right that it was a political question and therefore nonjusticiable, she need have no fear of prejudicing herself by answering here and now.

But then, I have just taken a look around me and realized that I'm not actually a Senator.

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