Monday, October 24, 2005

Harriet's mire

Harriet Miers is being publicly flayed for no good reason.

On a human level, this is close to the doomed nominations of John Tower and Lani Guinier for the sort of cruelty heaped on an unobjectionable personality. I stopped taking Miers seriously when I read the Dear George letters, but I also consider this unfair. Fairly serious people have e-mailed worse things. Besides, is it measured to think someone is an idiot for kissing up to her boss on his birthday?

While I was knocked out by the nominee's birthday card word choice, people have generally framed Miers's nomination as broader evidence of cronyism.

If Al Gonzalez had been nominated, there would have been rumblings on this issue, but it wouldn't have been the same. People would have taken Gonzalez seriously, even though the bulk of his experiences -- Texas real estate lawyer -- isn't much different than Miers's. Gonzalez wrote 21 opinions as a Texas Supreme Court justice; most federal judges write four or five times as many opinions in a year. By any objective criteria, Gonzalez would have been no more qualified than Miers.

She's a crony and so is Gonzalez. You know who else was a crony? Abe Fortas. And when Franklin Roosevelt nominated Frank Murphy to the Supreme Court, Murphy was a crony. I'm not going to praise cronyism, but it's not a disqualification in itself. It's one of those things like being fat or having bad breath -- crippling if out of control, but generally correctable.

What's actually going on is sexist as hell, along with being cruel and stupid. If she were a man, there would not be the same kind of uproar about her closeness to the president and the ability to hear cases with detachment. There would, appropriately, be serious questions on that front, but they wouldn't be as dire.

She's being portrayed as a hack, idiot, vacuous, inexperienced, unserious, illiterate, possibly corrupt, ass-kissing, ugly, lesbian, asexual, liar, inconsistent, religious zealot -- you name it. It's a dishonest debate. Little to none of it involves her fitness as a justice. As an article in today's Times points out, Lewis Powell came to the Supreme Court with a resume similar to Miers's.

Powell was confirmed with only one vote against him.

I cautiously like Harriet Miers for the same reason that I cautiously like John Roberts. I think that career litigators come to the Supreme Court with a different way of thinking than career judges. They're more used to looking at issues from multiple angles, and on any given case could be arguing the opposite site. Reliant on the parties' filings with the court, a judge isn't as accustomed to the open-ended spread of a practicing lawyer. By temperament and training, a Miers or Roberts will be less rigid than a Scalia or Ginsburg.

There is still a huge problem.

If the first elephant in the confirmation room is rampant sexism, the second is her involvement in the investigation of the Valerie Plame leak.

Talking Points Memo raised this question. I haven't seen it anywhere else. TPM makes the following understated observation:
Given her role at the White House at the time, Miers would seem uniquely placed to give some read on just what [Bush] knew and when he knew. Indeed, what she knew and when she knew it.
If Harriet Miers is worth her salt as a lawyer, she has been closely involved in the leak investigation from the day she became White House counsel. John Dean was immersed in Watergate. Even assuming that Bush has clean hands in the Plame leak, Miers should have been doing everything she could to shield him, counsel him and build a record on his behalf. If she's a good lawyer, she knows more about the Valerie Plame leak than anyone in the White House.

On the other hand, if she hasn't been involved, it's further evidence of a dysfunctional White House, and an indictment of her competence. This wouldn't be surprising, either, given the short-term, self-righteous attitude of the administration. As a simpleton, Bush might say something like, "I didn't know anything about the leakers, so there just wasn't any reason for Harriet to get involved." This would be very stupid, and if Miers accepted such a statement at face value, she is a bad lawyer and unworthy of the Supreme Court.

Unless there is a simple, credible explanation for why Miers knows nothing about the Plame investigation, she will be another personnel casualty of the Fitzgerald investigation.


double entendre said...

typical crimenotes. incidentally, if the administration would like us to believe that Miers is not a crony and that we shouldn't worry "about her closeness to the president and (her) ability to hear cases with detachment" then maybe it, and most importantly, the President, should stop trying to sell her nomination to us on the basis of the President "knowing her judicial philosophy."

Granted, it is the Senate and not the public who is charged with consenting to her nomination, as it should be, but if the nominee is confirmed, it appears likely to be out of fear of the alternative for some, such as yourself, and of some politically necessitated sense of duty to this administration for others rather than an actual examination of the nominee's judicial philosophy.

Now, I'm sure some of the current Miers bashing is, in fact, sexist; but certainly not all. And most would agree that cronies can prove themselves to be capable, too, as many have before (which Miers has yet to prove, although I shall reserve my judgment until after confirmation hearings), but I'm not sure if the most egregious form of sexism is the administration's strategy of selling a nominee on the basis that The President promises that she thinks like he does. One might suppose that the administration would not have chosen a similar tactic for an otherwise identical male nominee whether out of its own latent sexism or its collective belief in America's.

CrimeNotes said...

Define judicial philosophy.

I'm less concerned with judicial philosophy, more interested in how contexts and experiences shape someone's overall judgment. It's all guesswork.

double entendre said...

not much insight into that yet, either and, without evidence of how context and experience may shape one's judegment, as there certainly was with Roberts, it seems reasonable that, for those that must form an opinion, if not a final one, now, aptitude is all there is to go on.

CrimeNotes said...

Yeah, but I didn't say she should be confirmed, I said that she isn't as outrageous as everyone (Democrat and Republican) has been saying. I was arguing that resumewise, she's not a joke, and that her biggest problem may be her actions as White House counsel. Was my post that unclear?

double entendre said...

Not at all; but without any other evidence of either the nominee's judicial philosophy or "how contexts and experiences shape someone's overall judgment," all that commentators and interested parties have to debate and examine is the her resume, which, without any insights on the above, is "a joke." In the conext of other information, her's would not be, as Fortas' and Murphy's weren't and as Gonzalez's isn't. Absent any relevant context, however, it certainly seems to be.