America in the Balance

MIER(’S) REMORSE: CRONYISM, COWARDICE

AND CAPITULATION OR JUST INCREDIBLY

BAD JUDGEMENT?

by

Ken Eliasberg

The selection of Harriet Miers to replace Sandra Day O’Connor tells us virtually nothing about Ms. Miers, but it may tell us a great deal about George W. Bush - perhaps a great deal more than many of us conservatives wanted to know. Let me make it clear (at least to those readers for whom it is not already clear) that I am a staunch supporter of George Bush. It is true that, from time to time, he tasks me, i.e. there have been a number of in-stances in which I have not agreed with his decision—because he was leaning too far over to placate the left (and getting nothing but criticism from them in return)—but, on the whole, I believe that he has done an excellent job. However, the Miers nomination does much more than disappoint me; I regard it as one of the most colossal blunders of his or any other Adminis-tration—a missed opportunity that comes along possibly only once during a President’s term in office (if he’s lucky). To many conservatives it is more than a disappointment—it is a betrayal, and, while he is still my choice, this decision has certainly pushed my envelope to the very edge.

More than simply disappointing me, I believe that this decision:

1. Will do serious damage to his prospects for securing a noteworthy place in history,
2. Has the potential to do serious damage to his Party at a time when

it is in sore need of healing and unification. A division at this

time only helps the opposition and possibly greases the skids

for Hillary Clinton (what a depressing thought), and

3. Has the potential to do serious damage to the Constitution and

thus the country by appointing someone who is so clearly

unqualified to don the mantle of a Supreme Court Justice

(and, in saying this, I am aware of how many who have gone before her were equally unfit. Heck, that’s the problem!).

I will explore each of these possibilities—indeed, probabililties, if the Miers nomnation is not withdrawn—in this and future columns. For present purposes, I’m certain you have already divined my reaction to this choice—IT IS A TERRIBLE MISTAKE!

What’s the big deal, why all the fuss? Next to national security, court appointees, in general, and Supreme Court appointees, in particular, are the most important decisions that this president will be called upon to make. Why? Because the Supreme Court is the lofty perch—the principal instrumentality, if you will—from which the left has, for some six decades (since the Warren Court, to be more precise), corrupted the Constitution and coarsened our culture

And let me make it clear that I have absolutely nothing against Ms. Miers. I am sure that she is a gracious lady, and, very possibly, a brilliant attorney. And she may well turn out to be as staunch an “originalist” as Antonin Scalia. That’s not the point. How she turns out is both speculative and problematic. The only question at this point is why should we have to speculate when certainty seemed so clearly available to us (although, based on previous Republican appointments to the Court, I realize one can never speak with certainty).

And one might reasonably argue that it is even more terrible in light of the Roberts appointment. Let me explain. Roberts was himself a sort of “stealth” candidate—a term which has come to mean little more than the fear that a nominee may have said something in the past that might endanger his confirmation (and a term which I hate for it signifies Republican cowardice). However, even though his past did not produce a wealth of information in his background as to his fluency with constitutional matters, he was so clearly qualified in every other conceivable category that might be relevant to matters of this nature. He is an obviously brilliant guy who distinguished himself at a first rate law school (Harvard), as a clerk to the man he succeeds on the Supreme Court, in Government service, as a Senior partner in one of Washington D.C.’s most prestigious law firms, and on the bench for a couple of years as an appellate judge, all of which was more than sufficient to allow him to pass confirmation muster.

By the way, this stealth-candidate criticism irks me not just for its obvious reference to the Republicans’ fear of confrontation, but just as much for its one sidedness—i.e. the Democrats didn’t seem to labor under such constraints when they nominated Ginsburg, an ultra left-wing candidate who had done much to support a radical left-wing organization (the ACLU). She was easily confirmed—perhaps because Republicans are either less mean spirited or more fearful.

So, as noted, because of his brilliance, Roberts sailed over the confirmation bar with room to spare, which was fine with me because I felt strongly that he was going to be a superb justice. However, when he was then nominated to be the Chief Justice—to replace Rehnquist and not O’connor—I was concerned. Why? Because this slot should have gone to Scalia, a tried and truly gifted justice. This struck me as a pragmatic decision, i.e. rather than fight 3 fights—one for each departing justice and one for Chief Justice, it appeared that Bush had chosen to fight just two. While this struck me as less than valorous, I could live with it—quite comfortably—as long as the choice to replace O’Connor was to be a staunch and established originalist with unparalleld qualifications (of which there were many of both genders, none of which was Miers). I could live with pragmatism if, as a consequence, the Supreme Court were to be appreciably enhanced by virtue of its being utilized. Unfortunately Miers - again, no matter how she votes—does not constitute such an enhancement.

(Forgive me if I have failed to define the term “originalist;” I have just assumed that, because of its frequent use in connection with both the Roberts and Miers nomination, my readers were familiar with the term. For those who are not, all that it means in the context of a Supreme Court Justice (or any other judge, for that matter) is one who will hue as close to the original intent of the framers of the Constitution as is reasonably possible, consonant with contemporary realities).

The difficulties that the Miers nomination engendered were aggravated when Miers’ supporters in the White House went on to compound the felony of poor judgment with that of poor taste, by launching an offensive effort to justify her selection. In defense of this misguided choice they offered up such arguments as that (1) she is a woman (of whom there were many more qualified than Miers), (2) that she is a born again evangelical woman (need any one be reminded that we are selecting someone for the Supreme Court and not to head up the Baptist Church), and (3) Bush knows her heart (it’s not her heart that concerns me). And, furthermore, the argument ran, anyone who challenged her might very well be a sexist

As a consequence, the Miers nomination has produced a firestorm of conservative criticism—criticism which, as you probably have gathered, I feel is completely understandable and justifiable. In this and ensuing columns, I want to deal with the Mier’s selection in several different contexts.

1. Importance of the decision and the Republican Party’s history

in this regard

2. The critics
3. The nature of their criticism
4. My personal evaluation

Stay tuned! (By the way, I have to give John Fund, a reporter for the Opinion Journal (the Wall St. Journal’s online journal) credit for the phrase used in this column’s title (Meir’s Remorse); I thought it was perfectly appropriate).

What’s this stealth and no paper trail crap. Shouldn’t we be picking someone based on what they did write rather than what they did not.

Sexism and use of Laura—Silly and misguided.

I’m sure that Ms.. Miers is a lovely, gracious, and gifted woman. However, that hardly makes her the right choice—there were many in line for this position who were and are far more qualified.I want a great deal more than that before I cast my vote for a Supreme Court Justice—I WANT SOME SORT OF TRACK RECORD. In what may be the most important decision George Bush will have to make, he offers up by way of justification little more than trust me, “I know this woman’s heart.” I’m sorry, sir, that’s just not enough for me. With a plethora of incredibly talented and capable judges, with established conservative credentials, George Bush picks a virtual unknown. Indeed, it would seem that most of Ms. Miers’s most intimate associates have no idea of her most fundamental beliefs and virtually no idea of where she stands on just about any of the country’s critical issues—it’s almost like she landed yesterday on her return journey from the planet Pluto. This selection has shaken many conservatives right to their roots; they are at a loss in trying to figure out what George Bush was thinking when he made this pick. I have to tell you that, while I have been a staunch Bush,supporter, this decision has fundamentally shaken my confidence. With nothing to lose (since he cant’ run again), and everything riding on a monumentally critical decision, Bush picks a virtual unknown. He had to know that such a selection would alienate his base—he obviously didn’t care.

Why? That’s what I want to look at in this column. It would seem that he finds comfort in the fact that this woman has no “paper trail.” Why should this be a comfort to him? Apparently, because he doesn’t want a fight! Justice Roberts was referred to as a “stealth candidate,” since little was known about him (and this irked more than one conservative pundit, since they sensed in Roberts a nomination who they could at least understand and relate to, even if he were not their own first choice. Indeed, compared to Meirs, Robert’s background was extravagantly complete. I was satisfied with Roberts since I found his background exceptional and the manner in which he acquitted himself before Congress impressive. However, when Bush picked him for Chief Justice, I had concerns. First, Scalia was the logical choice, and the one I would have made. Second, I sensed that Bush made this choice—Chief Justice—because he didn’t want to fight any more battles than he had to, and, if he selected Scalia for Chief Justice, he would have had 3 nomination fights instead of 2, i.e. by picking Roberts to both be a Justice and the Chief Justice, he had a twofer with just one battle. I thought this was somewhat cowardly, but I could accept it as a pragmatic choice IF

the second nomination—i.e. the one to replace Sandra Day O’Connor—was one with solid conservative credentials (and there were many of these waiting on line, e.g. ).

ROBERTS (1) WE KNEW EVREYTHING AND (2) SCALIA SHOULD H AVE BEEN—BUSH DUCKED A FIGHT BY MAKING ROBERTS

A TWOFER. I SAID TO A FRIEND THAT’S OKAY WITH ME AS

LONG AS HIS SECOND CHOICE IS A SOLID PROVEN

CONSERVATIVE—LIKE JANICE ROGERS BROWN “T HE

PERFECT CHOICE—FEMALE, BLACK, EXCEPTIONALLY

BRIGHT, AND A CONSERVATIVE—IT JUST DOESN’T GET

ANY BETTER THAN THAT—I SO ADVISED BUSH (NOT THAT

HE PAYS ANY ATTENTION TO MY ADIVCE)

LAURA PLAYED A ROLE—I HOPE NOT. MUCH AS LIKE, ADMIRE,

AND RESPECT LAURA BUSH, I DIDN’T ELECT HER TO MAKE DE-

CISIONS OF THIS MAGNITUDE. AND WHILE I FULLY APPRECIATE THE DESIRABLILTLIY OF CONSULTING ONE’S SPOUSE—I CERTAINLY TAKE ADVANTAGE OF THIS ASSET MYSELF—NEVERTHELESS I ELECTED GEROGE TO MAKE THOSE DECISIONS AND TO DO SO INA MUCHMORE CONVENTIONAL MANNER. DO YOU REMEMBER HOW WE ALL FELT ABOUT HILLARY CLINTON’S OVER ACTIVE ROLE AS FIRST LADY?

OTHER THAN THE WAR ON TERROR THIS IS THE MOST IMPORTANT DECSION THAT BUSH WILL BE CALLED UPON TO MAKE, AND, IN MY OPINION, HE HAS MADE A TERRIBLE CHOICE AND

IN GENERAL, I LIKE GEORGE BUSH, BUT,IN MY OPINION, THIS DECISION WILL BAR HIS PATH TO EVER BEING CONSIDERED A GREAT PRESIDENT.

QUITE SIMPLY, HE FOLDED UNDER PRESSURE, AND THERE WAS NO NEED TO DO SO

THERE ARE SOMETHINGS WORTH FIGHTING FOR AND THIS MAY BE ONE OF THE MOST IMPORTANT ONES

BESIDES A GOOD FIGHT IS JUST WHAT WAS NEEDED TO GALVANIZE THE CONSERVATIVE BASE AND EXPOSE THE HYPOCRISY OF THE LEFT.

DEM UNDOUBTEDLY VERY HAPPY. I , HOWEVER, AND MANY OF MY CONSERVATIVE COLLEAGUES, ARE NOT.

judgeand, in time, may do Pesident Bush honor. However, that is not why she was nominated. She was selected because George Bush did not have the courage to risk a fight on the Senate floor, and dedicated Republicans have to ask the question, if you are not willing to risk a fight when you control both Houses of Congress, when will you risk a fight? And, possibly more important, what issue, other than National Security, is more significant—and thus more worthy of a fight—than the Supreme Court (the major instrumentality through which liberals have run the gauntlet of American politics). And, besides, as Peggy Noonan has pointed out, you don’t have to pick a fight; it’s already there. While, I don’t always agree with Pat Buchanan, I fully agree with his assessment of this selection. Buchanan observes, in a column titled, BUSH BACKS AWAY FROM GREATNESS:

In my opinion, Bush, in making this selection, either used incredibly bad judgement or demonstrated incredible cowardice in just going across the hall to pick an old crony, and, in doing so, not only overlook an entire field of competent and qualified judges, but, more to the point, needlessly antagonize his base. This may not effect him at all (other than the manner in which history deals with him) since he cannot run again. But it may well have a very negative effect on the base and the ability to get them out in 2008, thereby possiblyl aiding Hillary’s cause.

WHAT IS THIS STEALTH CANDIDATE CRAP—NO PAPER TRAIL—I WANT A PAPER TRAIL, AND I WANT A FIGHT

FRIEND—NO MORE GWB

THIS IS MORE THAN A DISAPPOINTMENT, IT IS A BETRAYAL

OF HIMSELF

OF HIS PARTY, AND

OF HIS COUNTRY

SEXISM MY ASS—MY CANDIDATE WAS A WOMAN—JANICE ROGERS BROWN—SO HOW AM I A SEXIST BECAUSE I REJECT MIER. ACTUALLY, I DON’T REJECT MEIER—I AM AFRAID, IN THIS CASE, I AM REJECTING BUSH

EITHER NO JUDGEMENT OR NO COURAGE OR NEITHER

ASA

BY THE WAY, I BORROWED THE MEIR’S REMORSE EXPRESSION FROM JOHN FUND, WHO HAS WRITTEN EXTENSIVELY AND WELL ON THIS SUBJECT

In the next 2 or 3 columns I want to not only analyse and evaluate this particular decision—an incredibly imprudent decision in my opinion—but more to the point, to point out why many, many loyal and dedicated Republicans are disappointed in the selection of Ms. Miers.

What’s the big deal? Next to national security, Supreme Court appointees are the most important decision that this president will be called upon to make. Why? Because the Supreme Court is the lofty perch—the principal instrumentality, if you will “by which the left has for some six decades (since the Warren Court, to be more precise) corrupted the Constitution and coarsened our culture.

Again, in my opinion, Bush’s nomination of Ms. Meirs,even if she turns out to be an “originalist,” is possibly the most ill-advised decision that I have seen a President in Bush’s position make in my lifetime. It is quite possible pthat Bush has not only substantially damaged the prospect of his being viewed by history as a great president, but, in addition, he has divided, and thereby damaged, his party. Perhaps more important than either his position or that of the Republican Party, is the damage that may result to the country as a result of this selection—just be sheer dint of the stupidity of this appointment (again, regardless of the realized possibility of Ms. Meir’s being an originalist. Also, again, the point of this colum and those that follow is not to take Ms. Meir’s to task. I don’t doubt for a minute that she is a good and decent woman possessed of significant

And, as oft noted, she has no paper trail (a super stealth candidate, if you will; no one knows what she believes),