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President Nominates Harriet Miers as Supreme Court Justice

Dave Sidhu - October 03, 2005

This morning, President Bush nominated White House counsel Harriet E. Miers to replace Sandra Day O'Connor as associate justice of the Supreme Court of the Unites States.

Miers is an interesting choice for several reasons, including her lack of experience as a judge (John Roberts served as an judge on the DC Circuit for two years) and the absence of experience in the Supreme Court community (Chief Justice Roberts argued almost 40 cases before the Court, and has been described as the best appellate advocate in the nation). In other words, some are not impressed.

The question becomes, why Miers?

Law professor David Bernstein offers these remarks:

Miers and Roberts... both seem more likely than other potential candidates to uphold the Administration on issues related to the War on Terror (e.g., Padilla and whether a citizen arrested in the U.S. can be tried in military court). Conservative political activists want someone who will interpret the Constitution in line with conservative judicial principles. But just as FDR's primary goal in appointing Justices was to appoint Justices that would uphold the centerpiece of his presidency, the New Deal, which coincidentally resulted in his appointing individuals who were liberal on other things, perhaps Bush sees his legacy primarily in terms of the War on Terror, and appointing Justices who will acquiesce in exercises of executive authority is his priority, even if it isn't the priority of either his base or the nation as a whole. Such Justices may be coincidentally conservative on other issues, just as FDR's nominees moved the USSC generally to the Left.
UPDATE: I drafted this entry shortly after learning of the nomination. With the benefit of additional time -- and at the urging of David -- I'd like to share some thoughts on this selection.

Despite the fact that Miers is the President's pick and is his close friend, it would not surprise me if Miers was not confirmed as an associate justice. Indeed, if I was a senator (Republican or Democrat), I would not vote to confirm this candidate.

That Miers does not have judicial experience is not a disqualifying factor, as other notable justices have served on the bench without any prior work as a judge (e.g., Rehnquist, Brandeis, Frankfurter). However, in almost all of these cases, the justices had significant legal experience or expertise (e.g., Rehnquist headed DOJ's Office of Legal Policy and Frankfurter was a professor at Harvard Law). Miers does not have demonstrable experience that I believe is an adequate substitute for being a judge or that proves she has seriously examined a number of legal, particularly constitutional, matters.

She has served as the President's counsel and his personal lawyer, however Miers has not been insulated from the President to the extent that it may be reasonably said that she is a public servant (like Roberts or Rehnquist), rather than a servant of one man (like Fortas). Hence the calls that this nomination is an example of cronyism.

To be sure, Roberts worked in Republican administrations and said at his confirmation hearings that he was a government lawyer advocating the government's -- not his -- positions. However, Roberts has distinguished himself in other regards since his service in the government, such as an appellate litigator for Hogan & Hartson. Justice John Paul Stevens noted yesterday that Roberts had argued 39 cases before the Court, "a number that exceeds the combined experience of the rest of us. We know him well, and he has already earned our respect and admiration." From where is Miers to earn a similarly acceptable level of "respect and admiration" from his prospective colleagues or from the broader legal community that is to read -- and will be bound by -- her opinions?

It appears as if Miers, on her own, does not have the impeccable background that the public should expect of a Supreme Court justice, let alone a federal court judge. This suggestion becomes even more pronounced when Miers is compared to Roberts and to the alternative candidates, such as Luttig, Alito, Garza, McConnell, or even Ted Olsen.

In short, no judicial experience and close ties to the President are not, in themselves, a problem; the difficulty, as I see it, is the absence of anything else that would lead us to believe that Miers has the qualifications and legal intellect necessary to be one of the nine members of the High Court. Accordingly, as Senator Shumer may say, the burden is on Miers to prove she is worthy of this seat (not the burden of the senators to disqualify her). The burden, to me, seems very large, and I believe insurmountably large given what we know about Miers.

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Posted by Dave Sidhu at October 3, 2005 07:17 AM

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Cronyism at its finest

From South Asian Ramesh Ponnuru of the National Review: "It's an inspiring testament to the diversity of the president's cronies. Wearing heels is not an impediment to being a presidential crony in this administration!"

LOL!!!

The Bush legacy will not be about the War on Terror. Rather, it will be about the War on Iraq and the ousting of Saddam Hussein. In the immediate aftermath of 9/11, Bush vowed to get the terrorists wherever they may be. Remember the phrase : It's either you are with us; or you are against us?

He incessantly ranted on TV on how he wanted to get the perpetrators of this horrible tragedy. US intelligence quickly ascertained that the attacks were not orchestrated by Saddam, but by the other monster Osama bin Laden. This must have profoundly disappointed Bush because he simply did not want to waste time in Afghanistan. Iraq was his target, was where his heart was/is. Iraq is his obsession!

Thus, going into Afghanistan became only perfunctory duty. It would have instantly outraged the civilized world if he had gone straight into Iraq when Osama was hiding out in the rubbles of Afghanistan. Prescient and smart people had quickly predicted that Iraq was next, long, long before it became clear to most. As you now know, they were absolutely dead on.

Bush repeatedly preached the Republican mantra of Weapons of Mass Desrtuction (WMD). Wise people did buy it; but fools did. The inspectors were in Iraq looking for those weapons, but Bush was in a hurry. The inspectors pleaded for more time. Bush saw no need for that.

Yes, he would want to be associated with the War on Terror, but his true legacy will be the War on Iraq.

His nominees to the Supreme Court, therefore, will naturally be individuals who are apt to support his agenda and the Republican game plan.

Please Google (PNAC), Project for the new American Century. You will find the chilling Republican Manifesto on imperializing the world, starting in the Middle East, and on augmenting US military superiority, the Military Industrial Complex and the war machinery. Scroll down to page 51 of this 90-page document and you will see Iraq prominently mentioned there.

Therefore, it stands to reason that his nominees to the High court will be those who are apt uphold the Republican agenda, conservative views and right-wing traditions. It does not surprise this scribe the least!

Justice Miers has been quoted as saying,
"President Bush is the most brilliant man I know." Let's hope this is just cronyism and not what she actually believes to be true.

Well.. Pleasant suprise from Bush..She is not at Conservative...
I think Conservatives will oppose her..However this is really really good choice..And I bet most of Democrates will support her.

I don't trust Bush at all. She HAS to be ultra-conservative, why would he pick anyone other than that? I suspect that the conservative uproar, is a deliberate deception. Sorry not to sound totally paranoid..lol

He wakes up to a new world every day.

The thought of a person who has never served as a judge sitting on the Supreme Court is mind-boggling.

Appointing Miers as a Supreme Court Justice might be cronyism and all that, but I would like to make one point regarding the general trend of most of the comments here. The fact that Miers has no experience as a judge should not automatically make her a bad choice. Rehnquist also had no prior experience as a judge before becoming a supreme court justics, and although he undoubtedly had a conservative agenda, the 'Rehnquist court' will go down as a fine and overall quite liberal period in american judicial history.
Ofcourse, I still dont support Miers and feel the democrats should be very wary of her. I think Bush has come up with a very clever way of pushing the conservative agenda forward. He has a female candidate, who he probably knows is very conservative at heart (after he has known her for 10-12 years) and yet has no paper trail of judgements that loudly proclaim her conservative agenda.
Sid

Well, what can you expect from a guy like Bush? It is wrong on our part to expect that he will appoint sane person to fill the vacancy.

Dave: After perusing just a bit of the initial web introductions from DNSI ( a must see for anyone who doubts the legitimacy of the position put forward here!), David Bernstein, and another fascinating link given through the connections you've established in your initial blogs (such as the "Volokh Conspiracy" link through Berstein), well....I am left with a question for your question about "what the readers think about Miers nomination?"--and that is, "what do you think about this double-whammy for the Bush's Supreme Court???"

That is quite a resume' you yourself have brought to the table, and from the very slightest of inflections given between-the-lines-of-yours-words (am being mostly sincere!), I can only conclude that the implication given herein may be that the lack of any significant history by either Roberts or Miers would indicate a Bush/Republican "mold-ability-factor" is in play--is this at least partially correct?

I saw Roberts as being a very beneficial nominee initially--in that he "seems" to represent a significant lack of controversy for the embattled Bush administration--due to Roberts apparent integrity.

As I read Ron Saywack's rather "chilling" reference to the PNAC as a Republican Manifesto for veiled imperialistic activities (have not read it yet so I'm still hoping it is at least "veiled," and not overt in the obvious nature of such intentions), followed by Matt Welsh's reference to "Justice" Miers quote about Bush's brilliance (uuuugggghhhh!), well....the second reference scares me as much, if not more, than the possible objectives of a Republican Manifesto of an imperialistic nature!

In light of your work as co-founder and co-director of such a reputable pursuit as is given by DNSI--again, what do you think?

Considering some of the powerful deep-pocket organizations funding some of your endeavors--so noble in their endeavors regarding human rights and free speech--do any of these funding sources, such as The Ford Foundation, Lilly, or Harvard itself, exert undue influences regarding the direction and depth of the most controversial issues you and your teams investigate?

Very glad to have the company of the brilliant minds, coupled with the integrity of the courageous hearts, that the Intentblog continues to draw to itself, and build upon, from "all corners, and the far reaches of human inquiry." Dave (also!)

Corection!

In my post above, the second line of the fourth paragraph... should read: Wise people did not buy it; but fools did." Thank you.

Hi David,

Did you have a chance to read PNAC yet? David, you have stated above that you hope that these are only "veiled imperialistic activities."

My friend, once have read this document, you will unequivocally understand that this is a real Republican globalization ambition, and that there is absolutely nothing veiled about it. This document was kept a secret for several years until the cat was let out of the bag by an astute British print journalist.

Neil MacKay of the the London Sunday Herald broke the story on April 01, 2003.

He wrote: "A Secret blueprint for US global domination reveals that President Bush and his Cabinet were planning a premeditaed attack on Iraq to secure regime change even before he took power in January, 2001."

There were 25 prominent Republican insiders who were signatories to this blueprint which included Jeb Bush, Paul Wolfowitz, Donald Rumsfeld, Dan Quale, and Dick Cheney. These men were bitterly disappointed when Bill Clinton ousted Bush Senior in the 1992 presidential elections, and the PNAC wheels were put in motion shortly thereafter. It was duly signed in 1997.

They stress the importance of the recognition of US military preeminence in the world today, and the need to seize this imperialistic moment and not to squander it. In order to effect American world domination, it states, US military strength must be tremendously augmented.

Further, in order to begin the the process of US world domination, there would have to be another Pearl Harbor, which apparently, 9/11 was.

Professor Ray Taliaferro, a radio talk-show host at KGO, San Francisco often talks about PNAC. If you want to find PNAC easily, just Google Dr. Taliaferro's website at (raytal.com). On his homepage, just click on PNAC, and you can read it for youself. It is no longer a secret.

Best regards,

Ron Saywack.

Hi Ron: I just started to digest that "monster"; a bit at a time I can see--it is "too real" to take in all at once.

I referenced your acknowledgement of this article as 'veiled' on purpose--because I knew you were right without even going though, and I wanted to dull the pain of my own anguish by dismissing the truth of what is there by dampening it!

I will take it a bit at a time--but, now I can use what is in there to motivate myself to continue moving towards a simpler, possibly more rural and/or small-to-mid-sized-town-like community.

Made some progress in that direction through the increasingly "controlled fabric" of the military's objective to control both inner(cyber) and outer space--as PNAC so clearly delineated, and in no uncertain terms.

My father was just referenced in a new book called "Dew of Death," and this is just a tip-of-the-iceberg piece touching on cover-ups with chemical and biological warfare activities.

My dad was a chemical warfare scientist at Dugway, UT, until he turned "whistleblower" and sued the Army. The fed. judge that ruled on his case said it was the finest case he'd seen in 24 years on "the bench." He awarded my dad and his atty. twice what they were asking for.

What is amazing is watching the Army's antics and delay tactics with the 10th Circuit Court of Appeals.

The Army is absolutely unconcerned about taking responsibility for any of what has so far been exposed. Even the Court of Appeals has, in effect, warned the Army to settle it--they just laugh and get back to smearing and taunting!

My dad is consulting tomorrow with a senior CNN producer about some chemical techno-jargon in these difficult-to-discern areas.

It leads one to think that there is still "accountability" within the power-structure until one looks at the hard cold reality of what is in that PNAC.

Then, "accountability" just seems like a superficial distraction to keep "the masses" from getting even a whiff of how sophisticated and dedicated is the military-industrial complex that another poster, Art, so "Artfully" reminded us of with excerpts from Eisenhower's simultaneous warning about same, and plea for sanity to prevail as we moved into the 60's and onward with our war machines.

My granddad published, edited, and reported for a highly-respected Southwestern newspaper from 1924-1969. A week before "Pearl Harbor," he did a front-page piece where he publically accused FDR (a friend of his also!) of not only knowing what was coming, but taking steps to instigate the attack; otherwise, America and England would not "buy the war package."

I'm moving further and further away from the stink of conspiracies, and how paranoid "their potential reality" can make an individual, and/or collective of people, but make no mistake about my "veiled comment here"; what you alluded to regarding (at least I sensed you did!) "9/11" is something that hit me that very day.

As I listen to the news reports of our "government's" most recent $50 billion contribution to this years additional war costs--well Ron, it would appear that the PNAC people are then actually ahead of their push for ever-increasing yearly contributions to their stated intentions.

Of course, for "our" safety and the assurance of protections from those who would thwart the peace process are the primary objectives, N'est Pas!!!! Dave

The Dunce from Crawford appears to have done it again. He has once again missed the boat, and foolishly mistepping.

Well, instead of opting for a minority or another woman, he is going with a suave, debonair white boy. That's fine, except that Bush promises to be quite different the Oval Office.

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