Tuesday, October 25, 2005

Miered: The Trouble with Harriet

Perhaps, ultimately, the trouble with Harriet is that she and Bush are too close, the issue is too personal and each of them just forgot in their own way that this is not a private matter, but one of great and lasting public importance.

I’m certain Ms Miers is a fine person, a deeply religious person and fun at parties. But she’s transparently not qualified to be on the Supreme Court, or at least not in the top tier of people who could be considered qualified.

Thus the flap over her inexplicably incomplete questionnaire, so bad she was asked to do it over, is not merely nit-picking. Stephen Bainbridge, UCLA Law Professor, observes that “Harriet Miers' response to the Senate Judiciary questionnaire is the single most important and consequential (both for herself and the country) piece of legal writing she has done to date.” Even if it weren’t filled with typos in it’s mere 3 ½ pages of substantive answers (can you imagine not proofing the punctuation on part of a job application for the most important job you'll ever hold?) , or guilty of stupid errors that would be unacceptable for even a first year law student, this fact alone tells us that she’s not Supreme Court material. Make a list of the all the people who have written legal documents of greater importance and consequence than this, and maybe, if all of them are just too busy, maybe we can consider Miers.

Of course, picking a Supreme Court Justice isn’t just about competence. But competence does matter. Supreme Court Justices should be constitutional law experts. They should.

They should also not be in the thrall of an ideology that causes them to warp the Constitution. How do we know if an ideology is Constitution warping? Take this test. (Harriet may be excused. She’s apparently not so good at tests.) Which of the following is true about our Core Democratic Principles? A) You get to believe as you wish and live your life accordingly and I get to believe as I wish and live my life accordingly, so long as we don’t harm each other. B) I get to believe as I believe and you get to believe as I believe, so long as you don’t harm me. If you said “B”, or equivalent, you are in the thrall of a Constitution warping ideology. “A” describes Liberty, Freedom constrained by personal integrity, and sits at the very core of a Constitutional Democracy. “B” describes Theocracy. So it’s of no small consequence that the Bush White House is using a version of “B” is their primary (heck, only) line of defense of the nomination. In an effort to shore up the base and whip the Republicans back in line, Bush & Co are defending her by trying to sell her to the fundamentalists as really one of theirs (wink, wink).

It’s tempting to use that as an excuse to accuse Bush of indulging his theocratic leanings in the Miers appointment. But that would be a mistake. That Bush nominated her and that she, a part of the Bush White House, accepted, speaks more I think to the insularity of the Bush White House. It tells us that no significant voices were present to point out the obvious problems with the nomination. The "Good Christian" defense seems more of an afterthought, the sort of thing they assumed would just be assumed.

One of the tidbits floating about the blogosphere, expressed variously is: As White House counsel “Miers was in charge of screening judicial nominees,” according to one conservative anti-Miers blog. NPR has it that “Miers was one of those in charge of vetting potential Supreme Court nominees.” The National Review Online claims that “Until the day before yesterday, Bush was being advised on legal philosophy by . . . Harriet Miers, whose judgment is presumably better honed than his. We can say with some confidence that over the last year or so that she has been White House counsel, Miers has served the president well in this role (the Roberts nomination alone being a good sign).” And in a transcript of what purports to be a RNC conference call, Ken Mehlman is reported to have said “Harriet Miers has served with distinction at a time when she was the top legal advisor to the president on some critically important issues whether the issues were whether to renominate Janice Rogers Brown and Priscilla Owens and Bill Pryor.” (Emphases added.) Whatever her role in vetting nominations for the bench, it’s hard to imagine this not interfering with her own nomination and contributing to the lack of critical thought concerning it. And just like with the choice of Cheney to run as VP, when he was in charge of vetting VP candidates, it’s hard to imagine that Bush’s discomfiture with outsiders did not play a role in her selection.

I’m guessing that two other factors also contributed to this situation. Firstly is the siege mentality that doubtlessly encompasses the White House. The Iraq war is going poorly, and finally the people are noticing. A once pliant media is actually asking questions. The plan to dismantle Social Security is DOA. The inadequate federal response to Katrina revealed the lack of core competency in emergency preparedness that was supposed to be Bush’s strong suit. Indictments loom for top aides, one step away from each Bush and Cheney. I have no doubt that all of this made the possibility of critical thinking about the Miers nomination seem hostile and threatening, even unthinkable. It also made choosing someone from within the ranks seem that much more appealing.

The second factor is the nature of the Roberts nomination. Not a member of the Bush inner circle, and possessing qualities Bush was not likely capable of appreciating - competence, intelligence - the Roberts nomination has all the feel of a deal. Since Bush would likely fare no better than Miers in being able to name his favorite Supreme Court Justice, it is unlikely that Roberts was Bush’s idea or first choice. Since, at the time of the O’Connor resignation, the writing was on the wall for Rehnquist (at least to retire soon), it seems likely (ok, possible) that the Miers nomination was offered to Bush in exchange for the Roberts nomination. Pure, baseless speculation, I know. But it would explain the disparity in the qualifications of the two. And it would consistent with the schizophrenic nature of the Bush White House heeding the often contradictory voices telling them to place profits before people (Cheney) and those putting loyalty before all (Bush). Maybe Bush’s handlers have to throw him a bone every once in a while. Maybe he’s starting to think that he is President. It’s tempting to fantasize that after Cheney et al got their corporate shill in the form of Roberts that they decided to let Bush flounder on his own with Miers.

And since we’re indulging, it’s hard not to notice the parallels between Bush and Miers, both mediocrities that rose to the level of their incompetence, both nominally fundamentalist Christians of uncertain piety. Did Bush nominate himself in drag? Or is there something to this Oedipal Complex theorizing that swirls about the blogosphere. Was the Roberts nomination to appease the Father and the Miers nomination a surrogate for his mother? Before we get too deep in speculating on that which cannot be known, whether Miers is doppleganger, surrogate mother or trusted friend appears to be a distinction without a difference. Bush does not seem to capable of backing down on this one.

Perhaps, ultimately, the trouble with Harriet is that she and Bush are too close, the issue is too personal and each of them just forgot in their own way that this is not a private matter, but one of great and lasting public importance.

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