In response to conservative opposition to Harriet Miers’ nomination, the Miers’ defenders have mounted a series of unworthy and, quite frankly, ridiculous attacks. First, Ed Gillespie appeared before a conservative gathering in Washington and suggested that the criticisms of Miers smelled of sexism and elitism. Gillespies’ comment, however, smelled of desperation--given that the short list preferred by conservatives included the likes of Judges Maura Corrigan (University of Detroit Law School), Alice Batchelder (Akron University School of Law), Edith Jones (University of Texas), Priscilla Owen (Baylor Law School), and Janice Rogers Brown (UCLA Law School). The comments were roundly ridiculed, but that didn’t stop Brit Hume from suggesting that David Frum, Bill Kristol, Charles Krauthammer, Laura Ingraham, and George Will are all school snobs who suffer from Ivy League blinders—notwithstanding their support for the aforementioned non-Ivy-League prospective nominees.
Having failed in this first attempt, Miers’ defenders appear to be starting a whisper campaign against prominent—and notably more qualified—judges who were oft-mentioned as being on the short list. On Fox News Sunday, when Bill Kristol suggested that Judges Edith Jones or Alice Batchelder would have been better picks, Hume interrupted:
Bill, I can tell you this about Alice Batchelder. She was very, very closely vetted. And you know what they found? They found all kinds of evidence of activism in her record. And they were quite surprised and not pleased to find that.
When Kristol questioned this new smear tactic, Brit incredulously suggested that this is something he found on his own. But, as Brit’s first statement makes clear, the only way he could have gotten this information about White House opinion is by hearing it from the White House (unless of course he is simply reporting second hand reports—which would mean that he was engaging in rather loose reporting practices).
What then is to be made of this attack on Judge Batchelder? Despite the allegation of "all kinds of evidence of activism," neither Hume nor any other Miers’ defender has produced a single case. By contrast, at least one NRO writer has listed several specific cases demonstrating the fact that Batchelder has a record of ruling according to the dictates of the law, even when the law is contrary to her own policy preferences. As a former clerk to Judge Batchelder, I can attest that she is the very picture of judicial restraint—someone who has a solid record of not prejudging cases. And you don’t need to take my word for it: you can simply look at her 20 years of well-reasoned opinions.
Now that Miers’ defenders are playing a game of confirmation "catch-up," they would do well to realize that they are not going to win over any conservatives by making spurious accusations about sexism, elitism, and activism--or by smearing the reputation of well-respected jurists.