Neutral on the Miers nomination

Not that I needed to announce it, as I think it’s been pretty obvious by my writings here at the blog, but I am officially neutral on the Miers nomination. I’m announcing it because I want to explain why, and also argue against some of the arguments that have been used against her (if that makes sense!).

When I first heard about the nomination, I was disappointed – I think most of us were hoping for a Janice Rogers Brown nomination, or perhaps Michael Luttig, either of whom have a clear record we could go on in terms of judicial qualifications. As time went on though, even though I was disappointed, I got to thinking about the fact that the President has had over 200 nominations to the lower courts approved by the Senate, and some of them were quite controversial (like JRB, who enjoys widespread support amongst conservatives). Conservatives were mostly pleased with the nomination (and eventual confirmation) of then Judge John Roberts to Chief Justice of the USSC, in part, because his judicial qualifications were impressive and because he seems like he’ll be a judicial conservative.

Melanie Kilpatrick over at the WSJ had an op/ed this weekend that made similar points, some of which I’ll post here:

Mr. Bush was elected in part on his pledge to remake the federal judiciary, and he’s demonstrably followed through on that promise. That includes the appointment of John Roberts as chief justice of the United States, 43 appointees to the appeals courts and nearly 200 judges on the federal district courts. There are 871 judges in the federal judiciary, including 50 current vacancies. By the end of his second term, Mr. Bush will have appointed one-third or more. Ms. Miers has served on the committee that advises the president on judicial picks and, as White House counsel, has been chairman of that committee for the past year.

This reshaping of the judiciary hasn’t been easy, and Mr. Bush has had to fight to keep his word. During his first two years in office, a Democratic-controlled Senate refused to act on 47% of his appeals-court nominees, or 15 out of 32 names. He renominated them on Jan. 7, 2003, immediately after the new, GOP-controlled, Senate was seated.

The Democrats’ next tactic was the filibuster. No Senate had ever filibustered a president’s appeals-court choice before, but 10 of Mr. Bush’s best-qualified nominees met that fate in the last Congress. They included three women, an African-American, an Hispanic and an Arab-American. All had enough bipartisan support to be confirmed but were denied a vote by a liberal minority of Senators.

Mr. Bush didn’t back down on his nominees. He gave recess appointments to two–Charles Pickering of the Fifth Circuit and William Pryor of the 11th–who had been subjected to particularly vicious smears by Democrats. Judge Pickering had been accused of harboring racist views, even though he had the support of many African-Americans in his home state of Mississippi. Judge Pryor, Alabama’s attorney general, was skewered for his traditional Catholic beliefs even though he had pledged to uphold Roe v. Wade. Mr. Bush’s recess appointments came against the advice of some who favored compromise with the Democrats.

His highest-profile pick was Miguel Estrada, a Honduran immigrant who is often classed with Mr. Roberts as one of the brightest lawyers of his generation. After 28 months of waiting for a vote–and seven attempts in the Senate to break his filibuster–Mr. Estrada decided to withdraw and get on with his life. The White House had been prepared to keep on fighting.

Mr. Bush understood the political stakes here, and put Democrats’ obstruction of his judicial nominees at the front and center of last year’s re-election campaign. When he was rewarded with re-election, one of the first acts of his second term was to renominate every filibustered nominee who wished to carry on the fight. As a result, Priscilla Owen and Janice Rogers Brown, among others, were finally seated on the appeals bench this spring. Judge Owen had been waiting for four years; Judge Brown’s nomination had languished for two.

They were confirmed as the result of a deal under which 14 senators–seven Democrats and seven Republicans–agreed not to filibuster except under vaguely defined “extraordinary circumstances.” Conservatives angry that Mr. Bush didn’t nominate Michael Luttig or Edith Jones or Sam Alito to the Supreme Court ought to direct at least part of their ire toward John McCain and Lindsey Graham. These Weekly Standard favorites refused to pull the trigger on the “nuclear option,” which would have banned the filibuster and made it easier for the president to nominate someone with a well-known record as a judicial conservative.

The key part of her argument, to me, is when she mentions how many nominees have been approved and the tough fight Bush and conservative Senate Republicans had to endure to get some of them approved. The records on the most controversial nominees were very clear, and liberal Senators (and ‘moderate’ Republicans) expressed ‘concerns’ over their qualifications to serve on the bench, and in the case of Pickering – as Kirkpatrick noted, it was so bad that Pickering and Pryor were recess appointments, rather than be confirmed the traditional way.

Because Miers has no real paper trail with which to examine her judicial qualifications, any number of conservatives have opposed her nomination and quite vocally so. It’s a fair argument for them to say that because there is no paper trail, they can’t and won’t support this nominee. Even those who are neutral or even pro-Miers share that concern.

However, I find a bit off the mark the arguments along the lines of “Bush has let us down so much in the past, and this is the last straw.” Sure, he’s let conservatives down on any number of issues, including immigration and spending, and making way too many compromises with Democrats (in the spirit of bi-partisanship that sadly has rarely been returned). But has he really let us down on judicial nominees? I think Kilpatrick makes the best argument above that he has not.

The charges of cronyism fill the air, considering the appointment of Michael Brown to FEMA (for example) so the criticism of this appearing to be a crony pick is a valid one, even though I’m not so sure that this was a pick to ‘reward’ Ms. Miers for her years of service to the President. The President knows full well the positions of Senate Democrats (and those ‘moderate’ Republicans) when it comes to judicial nominees and they’ve made it clear that any nominee that even remotely appears to be conservative is going to be heavily scrutinized and in some cases savagely vilified (as Pickering was).

Could he have nominated an obvious judicial conservative? Sure. Would that obvious judicial conservative have been confirmed – for the nation’s highest court? Probably not. There’s no way to know for sure – we don’t even know for sure that Roberts’ is a judicial conservative. We think he could be one, though. As noted earlier, some nominees to the lower courts were so controversial to the usual suspects in the Senate that the President had no choice but to appoint them during Congressional recess. So the idea that Bush could nominate and have confirmed – someone who was very clearly a judicial conservative – to the highest court in the land – is an idea with which I disagree. Some are making the argument that even with the possibility that JRB or someone like her would not be confirmed, the President should have still taken a strong stand and nominated her or another judge with similar credentials. That way it would ‘prove’ to his base that he was fulfilling his promises to them that he would nominate judges/justices who would strictly adhere to the Constitution and not legislate from the bench. My question to that is: “In terms of the judiciary, just what is it he has to prove that he hasn’t already?” Again, he’s disappointed us on some other issues, but he’s stayed true to his promises regarding nominations to the judiciary.

The biggest bulk of the blame for the President not being able to nominate an obvious judicial conservative to the USSC sits on the shoulders of the Gang of 14, and Kilpatrick points out why. To quote her again:

They were confirmed as the result of a deal under which 14 senators–seven Democrats and seven Republicans–agreed not to filibuster except under vaguely defined “extraordinary circumstances.” Conservatives angry that Mr. Bush didn’t nominate Michael Luttig or Edith Jones or Sam Alito to the Supreme Court ought to direct at least part of their ire toward John McCain and Lindsey Graham. These Weekly Standard favorites refused to pull the trigger on the “nuclear option,” which would have banned the filibuster and made it easier for the president to nominate someone with a well-known record as a judicial conservative.

I’m not sure what, if anything, we’ll learn from the confirmation hearings but I’m willing to wait to find out. Some are saying “we can’t wait, we must push for withdrawal now.” I’m against that, because I think the process here should work. Not only that, but the President is not going to withdraw this nomination, no matter how many signatures are on any petition. If conservatives don’t want this woman confirmed, they should continue to put pressure on their Senators to vote against the nomination should it go to the Senate for a vote.

The reason I’m posting this is not to argue in favor of Miers – as I stated in my opening sentence, I’m neutral in this battle, at least for now. My argument is more with the arguments against Miers in terms of what I find valid about them and what I believe aren’t very valid arguments. The President may not have demonstrated 100% trustworthiness on some other issues (as I mentioned above, like immigration and spending) but Kilpatrick makes very clear – and I agree – that on judicial nominations, the President has a clear record of appointing judicial conservatives to the lower courts. This has been my thought all along this whole process, which is one of the reasons why I haven’t been as worried about this nomination as some of my fellow conservatives have.

All that said, I think the administration has done a poor job in defending this pick, especially in terms of defining her as “first woman, this, first woman that” considering that it’s not about the best woman for the job but the best *person* for it. Also, by and large most of the conservatives arguing against this nomination are not using the sexist argument, so I think Ed Gillespie’s suggestion that there is a sexist element to the opposition is way off the mark. There *have* been some arguments I’ve seen during my travels to political message boards and blog comments sections that have used the sexist argument against Miers, but by and large I have not seen a single well known pundit use that argument against Miers. How could they, considering most of them (like me – who is not a well known pundit, btw would have very much liked to see a JRB nomination!

Whenever you hear a politician say “trust me” on anything, the right response is to say “yeah right” – we shouldn’t blindly put our trust in anything a politician promises, even when that politician is on our side of the aisle. At the same time, if that politician has a clear track record on certain issues – in this case, nominating judicial conservatives to the bench – my approach is to be cautiously optimistic, while realizing that I may not get what I want. It’d be one thing if the President continued to promise to nominate judicial conservatives to the bench over and over again but didn’t deliver. But he has delivered on his promises regarding the judiciary over and over again. I urge conservatives to reconsider the “we’ve been betrayed on this nomination” part of their argument against Miers because it doesn’t pass the scrutiny test (at least it doesn’t to me). Betrayal is a serious accusation, and one that I think is undeserved on the issue of judicial nominations by this President.

(Cross-posted at California Conservative)