Strengthening Constitutional Self-Government

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Pestritto on Miers

If folks are interested in my two cents, my essay on the Miers nomination has been posted by the Claremont Institute and is available here.

Discussions - 11 Comments

R.J., your points are well taken but I wonder if Bush’s behavior is the inevitable result of an out of control Senate that has failed miserably to perform its Constitutional function of advice and consent properly understood.


I am sure you are right. Due to the dems’ complete lack willingness or ability to understand their proper role in the confirmation process, Bush (to a certain extent) felt as though he needed to nominate a stealth candidate in order to get a conservative on the Court without engaging in a knock-down drag-out fight. The only problem is, in his attempt to side-step the left’s disregard for the Constitution, he has also ignored the proper procedure as intended by the Framers.

Reminds me of the old saying, "two wrongs don’t make a right." We shouldn’t be stooping to the dems level of dancing around the Constitution. Instead, we should be fighting for what the proper confirmation procedure is. Otherwise, we could be in deep trouble if the next nominee is from a democratic president. I don’t even want to think about the type of stealth candidate Hillary Clinton could come up with.

A man who was the greatest teacher of most of the writers here liked to quote the founder of modernity to the effect that when someone commits an obvious blunder, suspect a stratagem.
I know no one here thinks W. is smart enough to be a "prince" (although you all voted for him), but just for fun, suppose he is and thus committed the obvious blunder of nominating some lady crony with no respectable credentials who, moreover, was suggested by the Dems’ leader who promptly says kind things about her. W., let us remember, has nominated and gotten confirmed well over 200 federal judges of excellent quality, sometimes by poking the Dem. leader in the eyes with recess appointments. In virtually all cases he has followed the outline he gave many times in two campaigns as to the sort of judges he would appoint. Yet he has horribly, unaccountably failed us this time. For a moment, let’s indulge the serious question what "stratagem" Bush might be is up to if he knew as much as we smart conservatives know?

dennis: The best "strategem" being floated by the White House flacks is "trust us, she’s evangelical; she’s going to be good on abortion." That’s fine, but the WWJD bracelet doesn’t help out a whole lot on the other 80 cases the Supreme Court hears each year. For those who view the SCOTUS as a single issue institution, it appears that Bush has implemented a desirable strategy. For those who recognize that there were confirmable nominees out there who on the other 80 cases and abortion, too, it is an opportunity missed which will likely cost us dearly.

Julie: It is inevitable that the ideological approach to advice and consent will lead to choosing nominees with less significant paper trails on issues that could be manipulated. But there were potential nominees--including female nominees, if that is what the POTUS desired--who did not have politically damning records. He didn’t need to pick his inexperienced crony. That’s the point. Why not Maura Corrigan? Why not Alice Batchelder? Either of them would have been confirmable. For that matter, if he was going with a male, he could have gone with Judge Luttig, who even has been praised by Specter for his views on stare decisis! The POTUS had good options, but instead of choosing someone qualified, he pulled a Michael Brown and appointed his good ol’ Texas buddy. Well, that’s not a qualification for life tenure, and that’s exactly what the framers were worried about when they put the advice and consent check in the Constitution.

Publius: Your argument would be more persuasive if we were sure that Miers’ only qualification is that she is an FOB (Friend of Bush). I don’t know that yet. Maybe you know more than I do but asserting it doesn’t prove it to me. Until I know as much as you seem to know about Miers, I think she deserves a fair hearing. Bush’s disappointments for conservatives are numerous, to be sure. But so far his nominees to the courts have been more than acceptable. I can’t believe, on that basis, that pure cronyism is what’s driving him. Why not Corrigan or Batchelder? Mightn’t he say that he knew Miers’ mind better? Mightn’t he say that he trusted her more? In the absence of more evidence, I can’t sign on to your analysis.


Nobody is saying she does not deserve a fair hearing, of course she does.

Miers’ resume is the only source of information we have to discern her qualifications for the Court, and there is nothing there to give us any reason to believe she is any different (aside from her friendship with Bush) than any other partner at a large firm. Of course, if information comes out in the confirmation hearings to suggest otherwise, then great, but considering the level of question-dodging that I am sure she will engage in, I’m not expecting much from the hearings. I doubt the founders would find the President "knowing her mind" as persuasive in justifying her confirmation to the Supreme Court.

Julie: I agree with what Albert said. I am not saying that I have any special knowledge of her qualifications. I am saying that the White House has not given us ANY relevant qualifications yet. As for Bush knowing her heart/mind, that "evidence" counts for close to nothing. That might cut it if all you care about is abortion, but do you really think that Bush has had long conversations with her about the administrative state? Or the commerce clause? No. Bush’s previous picks were good because he relied on good people to assist him, not because he is a great legal scholar who was able to divine how they would rule. As for the President’s "knowing hearts," he knew Putin’s heart, didn’t he? We see how well that worked out.

Pestritto is right: she may be fine, but the only way to find that out is by having a rigorous hearing to assure that she has some other qualification FOB status. If that’s all she has, then the Senators are well within their prerogatives to send her packing to her Texas country club.

Let the hearings begin. I’m all for that. I just think it is too soon to call this cronyism or decide that she is unqualified. It is too soon to say that Bush has betrayed the conservatives. I certainly would have liked a different pick and I value everything the thoughtful critics of the nomination have offered--but I think the rush to judgment is odd. Patience is all I want here. I don’t know and no one else can know whether or not Bush discussed the administrative state and the commerce clause with Miers. I don’t know if he "knows her heart" on these matters. Actually, I don’t care about her heart. I am more interested in her mind and I see nothing so far that indicates she has an inferior one.

Hello, everybody! What do you think about these soap operas? I mean, what film is better - Santa Barbara or Beverly Hills 90210? I appriciate your opinion even if you hate both!
Thank you very much!! :)

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