By Howard Kurtz
Washington Post Staff Writer
Tuesday, October 4, 2005 8:27 AM
An hour after Bush nominated Harriet Miers at the deeply strange hour of 8 a.m. eastern, I realized the nomination had problems.
Not on the left, but on the right.
Weekly Standard Editor Bill Kristol was on Fox, saying the conservatives he'd talked to were demoralized, and that the president had "flinched" from nominating a more qualified and hard-line conservative. Laura Ingraham was unenthusiastic. The right-leaning bloggers sounded deflated. The libs were limiting themselves to saying the White House counsel didn't have much of a record--which of course is confirmation gold.
(By the way, after a prime-time rollout for John Roberts, why would Bush have announced Miers on television at 8, which is 5 a.m. on the West Coast? Was the thinking to have clips of her dominate the cable/evening news cycle all day before today's papers could weigh in? Her schoolmarm persona has got to be a plus--she just doesn't look threatening. The cable networks soon moved on to weather reports, hurricane cleanup, etc. Everyone knew so little about Miers that the commentators soon ran out of things to say.)
What's really struck me is that, in sharp contrast to the Roberts pick, no one that I've seen is saying this is a home run or a brilliant nominee. The most positive arguments in favor of Miers seem to be 1) she may be better than we think because we don't really know her views, and 2) Bush has known her a long time and we trust him to do the right thing, if not the Right thing.
National Review's David Frum , who worked with Miers in the Bush White House, was up early with negative reaction, calling the nomination "an unforced error. Unlike the Roberts' nomination, which confirmed the previous balance on the court, the O'Connor resignation offered an opportunity to change the balance. This is the moment for which the conservative legal movement has been waiting for two decades - two decades in which a generation of conservative legal intellects of the highest ability have moved to the most distinguished heights in the legal profession. On the nation's appellate courts, in legal academia, in private practice, there are dozens and dozens of principled conservative jurists in their 40s and 50s unassailably qualified for the nation's highest court.
"Yes, Democrats might have complained. But if Democrats had gone to war against a Michael Luttig or a Sam Alito or a Michael McConnell, they would have had to fight without weapons: the personal and intellectual excellence of these candidates would have made it obvious that the Democrats' only real principle was a kind of legal Brezhnev doctrine: that the court's balance must remain forever what it was in the days when Democrats had a majority of the votes in the US Senate - in other words, what we have, we hold. Not a very attractive doctrine, and not very winnable either. . . .
"As for the diversity argument, it just seems incredible to imagine that anybody would have criticized this president of all people for his lack of devotion to that doctrine. He has appointed minorities and women to the highest offices in the land, relied on women as his closest advisers, and staffed his administration through and through with Americans of every race, sex, faith, and national origin. He had nothing to apologize for on that score. So the question must be asked, as Admiral Rickover once demanded of Jimmy Carter: Why not the best ?
"I worked with Harriet Miers. She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated . . . I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or - and more importantly - that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left."
Kristol was soon up with his own piece that pulled no punches:
"I'm disappointed, depressed and demoralized.
"I'm disappointed because I expected President Bush to nominate someone with a visible and distinguished constitutionalist track record--someone like Maura Corrigan, Alice Batchelder, Edith Jones, Priscilla Owen, or Janice Rogers Brown--to say nothing of Michael Luttig, Michael McConnell, or Samuel Alito. Harriet Miers has an impressive record as a corporate attorney and Bush administration official. She has no constitutionalist credentials that I know of.
"I'm depressed. Roberts for O'Connor was an unambiguous improvement. Roberts for Rehnquist was an appropriate replacement. But moving Roberts over to the Rehnquist seat meant everything rode on this nomination--and that the president had to be ready to fight on constitutional grounds for a strong nominee. Apparently, he wasn't. It is very hard to avoid the conclusion that President Bush flinched from a fight on constitutional philosophy. Miers is undoubtedly a decent and competent person. But her selection will unavoidably be judged as reflecting a combination of cronyism and capitulation on the part of the president.
"I'm demoralized. What does this say about the next three years of the Bush administration--leaving aside for a moment the future of the Court? Surely this is a pick from weakness."
Can anyone suggest a good therapist for Bill?
John Hinderaker of Power Line begins by looking at Democratic strategy, but he's bummed too:
"It is going to be very hard to explain publicly the rationale for a filibuster of Ms. Miers. Beyond her being (presumably) a Republican, what would the stated grounds be? She has little or no paper trail, and no track record, obviously, as a judge. So I would think the Dems will have to seize on something that comes up during her Judiciary Committee hearing.
"Regardless of what the Democrats do, many Republicans will have misgivings about this nomination. 'Stealth' nominees have not turned out well for Republicans."
His colleague Paul Mirengoff sounds more despondent: "This nominee is a two-fer -- she would not have been selected but for her gender, and she would not have been selected but for her status as a Bush crony. So instead of a 50-year old conservative experienced jurist we get a 60-year old with no judicial experience who may or may not be conservative."
Andrew Sullivan says Bush "really does believe he is above the usual sense of accountability...This guy will do what he wants. If he wants to pick a close friend and flunky, whatever her virtues, as a Supreme Court Justice, passing over dozens of other brilliant legal minds and more experienced jurists more acceptable to his base, that's what he'll do."
Ed Morrissey at Captain's Quarters : "Not only does Harriet Miers not look like the best candidate for the job, she doesn't even look like the best female candidate for the job."
Rush Limbaugh (who interviewed Cheney on the subject) is underwhelmed: "I think the pick makes President Bush look weak. I think the pick is designed to avoid more controversy; the pick is designed to appease. I can't tell you how that disappoints me."
And all this reaction was just by a little after noon.
A couple of liberal reactions and we'll get to the MSM. Kos gives his qualified OK:
"Several Democrats, including Reid, have already come out praising Miers, which ultimately will only fuel the right-wing meltdown on the decision.
"I reserve the right to change my mind, but Miers' biggest sin, at this early juncture, is her allegiance to Bush. That her appointment is an act of cronyism is without a doubt, but if that's the price of admission to another Souter or moderate justice, I'm willing to pay it."
Ryan Lizza calls Miers a "pro-business pick" on the New Republic's blog but notes: "economic conservatives pleased by her corporate law background may find it distressing that in 1990 Miers voted for a 7 percent property tax increase during her short tenure on the Dallas City Council."
Now for the morning papers, starting with the New York Times ,which suggests timidity:
"There is still much to learn about Harriet E. Miers, but in naming her to the Supreme Court, President Bush revealed something about himself: that he has no appetite, at a time when he and his party are besieged by problems, for an all-out ideological fight.
"Many of his most passionate supporters on the right had hoped and expected that he would make an unambiguously conservative choice to fulfill their goal of clearly altering the court's balance, even at the cost of a bitter confirmation battle. By instead settling on a loyalist with no experience as a judge and little substantive record on abortion, affirmative action, religion and other socially divisive issues, Mr. Bush shied away from a direct confrontation with liberals and in effect asked his base on the right to trust him on this one...
"In selecting Ms. Miers, Mr. Bush stepped deeper into a political thicket that had already scratched up his well-tended image of competence, the criticism that he is prone to stocking the government with cronies rather than people selected solely for their qualifications."
The Los Angeles Times mentions Miers in the same vein as . . . Michael Brown?
"Although past presidents often named close friends and associates to the court before the 1970s, Bush is the first president to do so since President Lyndon B. Johnson made two ill-fated nominations from his inner circle, including Abe Fortas. "For Bush, the perception of possible cronyism is especially risky because it comes at a time when he has been accused of putting under-qualified political associates in top positions throughout the government -- especially at the Federal Emergency Management Agency, where former director Michael Brown quit after coming under fire for his handling of the response to Hurricane Katrina. "The cronyism charge was one of the first lines of attack seized by critics of Miers -- both on the right and the left -- who were frustrated by the appointment of a person whose views and record are little known."
The Boston Globe : "President Bush yesterday once again backed away from an open confrontation over the future of the Supreme Court, choosing a nominee whose lack of a record on divisive social issues guarantees that activists on both sides of the fierce battle over judicial nominations will be frustrated and angry -- with the White House, and not necessarily with each other."
The Philadelphia Inquirer : "In choosing Harriet Miers, his longtime legal aide, to be the next Supreme Court justice, President Bush confounded partisans on both sides of the liberal-conservative divide in American politics who had been expecting a well-known and predictable conservative."
USA Today comes up with the out-of-sync headline, "Early reaction fairly positive on Bush's choice of Miers." From Harry Reid, maybe.
Slate's Emily Bazelon : "She may turn out to have a great legal mind. She may be a thoughtful, incisive Supreme Court justice. But there's no reason to think so now. The problem isn't that Miers hasn't been a federal judge or a Supreme Court lawyer. It's that she isn't those things and she also doesn't bring with her the breadth of experience that the other justices lack. Can anyone really imagine that she'd be the nominee if she weren't a woman and the president's friend and loyal adviser? Cronyism and affirmative action: It's a nasty mix."
Adds John Dickerson : "Showboating senators who might want to derail the president's nominee should tread very carefully. The caricature of Miers that is emerging is so pathetic, her inadequacies so exaggerated, her inarticulateness so certain, that by the time she speaks in the committee room, she's almost certain to seem appealing."
Ah, the old expectations game.
And let's not forget Pat Buchanan : "Her qualifications for the Supreme Court are non-existent . . . Were she not a friend of Bush, and female, she would never have even been considered."
Headline from yesterday morning the NYT would most like to have back: "Justices Likely to Reconvene With No Word on Nominee."
On the DeLay front, National Review declares: "The charges are absurd and should be thrown out of court.
"One needn't be a DeLay flack to see this. We have had criticisms of DeLay ourselves -- his support of the Medicare-drug benefit, his relationship with disgraced lobbyist Jack Abramoff, and his recent comments about the "pared down" budget all come to mind. But this indictment is outrageous and should not be allowed to succeed as a tactic. While the political fallout of this indictment will take time to sort through, this case makes one thing clear: Campaign-finance regulation makes prosecution a continuation of politics by other means."
Ho-hum: DeLay indicted again .
Meanwhile, NYU journalism man Jay Rosen has a few thoughts on Judith Miller:
"By choosing confrontation when she didn't have to, and by going to jail in circumstances that allowed for other, subtler options (good enough for her peers but not for her) Judy Miller has made a great newspaper's history for it. The case was taken all the way to the Supreme Court, after all. Her confinement ended because she suddenly made a practical decision to quit standing on principle. And that too--confusion between the epic and the expedient--now attaches itself to the reputation of the Times.
"Indeed, Miller's confounding case has so handcuffed the editorial capacity of the Times that it couldn't manage the simple act of reporting the news that she had been freed at about 4 pm Thursday...
"Civil disobedience succeeds when there is clarity in purpose, cogency in argument, and transparency in action. None of which has been apparent in Judy Miller's epic."
Arianna has some publishing lowdown: "Sources tell me that Judy Miller is telling friends that she has made a $1.2 million book deal with Simon & Schuster."
Another round of layoffs at U.S. News, about 10 people, most notably the magazine's chief political correspondent, Roger Simon . This is a guy who almost single-handedly kept U.S. News in the game the last couple of years with his tireless and creative political coverage, and it's a shame.