Strengthening Constitutional Self-Government

No Left Turns

The Un-Candidate for the High Court

Poor Sen. Cornyn (R-TX): He had the duty this week to pen a Wall St. Journal op-ed arguing for Harriet Miers’s appointment to the Supreme Court. Forget Charles Krauthammer, forget George Will, forget Bill Kristol and all the other "must read" op-eds against Miers. Just read Cornyn’s argument for Texas’ favorite daughter to know why this nomination is a blunder. Setting aside the straw-men arguments he knocks down, his reasons in favor of her appointment contain their own refutation. They can be summed up as follows: Miers deserves to be a S Ct justice precisely because the nomination was so un-expected, so counter-intuitive, so un-[fill in the blank].

The short response to all of this un-reasoning is the simple fact that President Bush never made any of Cornyn’s arguments when he discussed the qualities of potential candidates for the Court. Now for the long response: When did Bush praise the lack of "judicial experience" as refreshing for the high court? When did he extol being a "legal practitioner" as an "asset" for the Supremes? When did Bush say he couldn’t wait to appoint men and women who had spent their careers "representing real people in courtrooms across America"? How often did Bush highlight "the burdens of modern litigation," "frivolous lawsuits," and "tort reform" as pressing concerns in his consideration of whom to appoint to the federal bench? Can anyone recall when Bush remarked even casually that he would jump at the chance to appoint someone who knew not "the Beltway"?

Folks like Cornyn argue that we should not "rush to judgment" simply because we don’t know Miers. But Bush has told us repeatedly the kind of judges he wanted on the Court. And so the American people had every reason to expect a certain kind of judge be nominated. Two names come to mind; need I say more?

It’s been said that you don’t really know what your expectations are until they are disappointed. Up till now, pundits have noted how often Bush has exceeded expectations on a number of political issues. But with this nomination, having vetted numerous qualified candidates for the gig of a lifetime, the president has disappointed expectations of his own making.

Discussions - 7 Comments

Lucas, I’ve just been working on a blog, defending Miers, in somewhat the same vein as Cornyn. I think there is a lot to this. When I was defending Thomas I could never give the full-strength argument for him--it would be used by his enemies.

So we’re back again to the question of whether or not you trust Bush. On this, my instincts tell me to trust him because he has been so good on judicial appointments and because he knows--more than anyone--the disasterous legacy of appointing a Souter. Bush has disappointed us a number of times on important policy questions so I think it is a fair argument we’re having about whether or not we can trust him. But the evidence is just not there for her conservative critics to suggest that she will be a disaster--only that she will not be as good as some other candidate they liked better. So the level of hysteria over this question continues to annoy me. Ken has a good point about not wanting to tip your hat to the other side. That’s exactly what I was thinking when I read Cornyn’s piece. He was in an unenviable position to have to write that. A position, perhaps, made less enviable by the ire of conservatives who no longer trust Bush.

What Bush should take away from this--although it will be hard for him to forgive it--is how dramatically he has lost the trust of so many of those who would have been happy to support him on faith had he kept faith on those many other smaller matters.

From 2000 until now, through all that America and the other nations of the world have endured in the form of terrorism and catastrophe, I have trusted President Bush and his leading. And I’ve prayed for him as well. In reading about the controversy regarding Mrs. Miers’ nomination, I’m amazed that so many who supported the President these past five-plus years are suddenly willing to repeat the same epithets as the fringe leftists - that Bush is not all that smart - or are claiming that the President "owes us for putting him into the Oval Office." Bush said that he would nominate justices like Scalia and Thomas. I believe he’s done that with the new Chief Justice. Through all of the Iraq war, the President has been unwavering in his stance. Why would we think that he would waver in his stance on judicial nominations? We may not know Mrs. Miers as well as we might like, or as well as know about other potential nominees. But I will continue to trust the President. He has earned that much and more in these past five years.

I think Miers might well turn out to be a decent or even more-than-decent Justice, but I’m still upset by Bush’s decision because of the "opportunity-cost" argument.

She is 60, given her background unlikely to be an intellectual leader on the Court, and he could have appointed someone like Judge Michael McConnell--a younger person of clear legal brilliance and sound principles.

So why in heaven’s name did he stick us with one of his aides? And politically speaking, why mightn’t he have seized this opportunity to name a well-qualified Hispanic jurist such as Judge Garza or even Judge Estrada? (now THAT would have been an interesting nomination fight).

Julie writes: "What Bush should take away from this--although it will be hard for him to forgive it--is how dramatically he has lost the trust of so many of those who would have been happy to support him on faith had he kept faith on those many other smaller matters. "

Concerning the last part, I think you are beginning to see what we have been talking about. Immigration, spending, health care giveaways, Affirmative-racism, Specter, etc. etc. To a conservative, these are not "small matters". Bush has proved to be a nothing less than a big spending liberal on so many huge and important matters. So why have conservatives like myself been willing to support him these last 2 or 3 years. The war of course is important, but the court/legal system was HUGE on our minds. Now, with this nomination, Bush has revealed he simply does not really understand or care to support one of his core constituencies. Concerning whether he can humble him self and "forgive" us for actually noticing that snubbed our concerns once again, does this really matter? I for one, will not be voting for a single Republican that supports/confirms this nomination, and I encourage every principled conservative to do the same. In all likelihood, I will be completely sitting out the 2006 and 2008 elections - unless the Republicans find the good sense and defeat this nomination. The coalition is busted, broken, no longer. Simply put, conservatives interests are not represented by the Republicans. Sheep no longer...

It is becoming increasingly clear -- just read -- that Miers does not stand against the liberal zeigteist in any serious way, except perhaps in her personal faith and her *personal* opposition to abortion. I’ll trust the president on those points, and even on Miers presumed support for executive war power. Those things ain’t nearly enough. Whether he knows it or not, Bush has just given the conservative movement a big, fat raspberry. As of last Monday, he lost his status as a conservative leader and as the leader of the Republican party.


I had the privilege to work with the late John Ashbrook as the Central Ohio Coordinator for his ill-fated Senate campaign in 1981-82.

John never shied away from a fight, even when the issues were as thorny as abortion.

I recall attending one meeting with him and a small group of supporters where a woman, one of his strongest supporters, asked him to tone down his opposition to abortion. John answered "that’s not who I am."

However, in the matter of Miers, if John had the same personal assurances and long relationship that President Bush has with Ms. Miers I think he would be pleased to support her nomination.

John also had another saying as it applied to campaigning: "When you throw mud, you lose ground." While many of our fellow conservatives are not exactly throwing mud, I do wonder if perhaps we’re not eroding the ground a bit with some of this over the top criticism.

Recently reliving those good old days with Ashbrook, I posted the following photo of John with a group of College Republicans from Ohio Wesleyan University the night of Reagan’s presidential victory in 1980:

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