The president's Argument

George F. Will writes…

“The president's argument for Harriet Miers ' nomination to the Supreme Court amounts to: ‘Trust me.’”

Conservative radio show hosts from Laura Ingraham to Bill Bennett tell of their disappointment. The hypocrisy of it all is striking.

For years Conservatives have been saying that what they want is someone who will interpret the Constitution according to the intent of the Founders. They claimed that politics was not an issue. When the Democrats began filibustering judicial appointments they said that the Constitution requires only a majority vote to confirm a President’s nominee. Therefore a filibuster was unconstitutional. “Give us an up or down vote!” they cried. “We have a Constitutional right to that.”

Now they have a perfect opportunity to get what they wanted in Harriet Miers. Are they happy? Not at all.

But is President Bush’s choice so unprecedented? Hardly! Speaking of the President, the Constitution says he “by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law…” Thus the only requirement for a judge is that he must be appointed by the President with the consent of the Senate.

It is not at all unusual for a President to appoint someone who is not a judge, but who is otherwise qualified.

But Conservatives are not happy. The problem seems to be that they want a confirmation fight. They believe that George Bush has appointed Harriet Miers simply to avoid a fight. To justify their claim they cite poll results showing that the President’s approval rating has fallen. So they reason that he has appointed Harriet Miers from a weakened position, thinking that by avoiding a fight he will prevent further erosion to his poll numbers.

Question: Has George Bush been one to form policy based on poll results? Answer: No. He is not another Bill Clinton. He has frequently shown himself to be a man of principles.

So why would he appoint Harriet Miers? For comparison, let’s look at the qualifications for John Roberts …

From 1981 to 1982, he served in the Reagan administration as a Special Assistant to U.S. Attorney General William French Smith. From 1982 to 1986, Roberts served as Associate Counsel to the President under White House Counsel Fred Fielding.

Roberts entered private law practice in 1986 as an associate at the Washington, D.C.-based law firm of Hogan & Hartson, but left to serve in the first Bush administration as Deputy Solicitor General, from 1989 to 1993. Roberts has argued 39 cases for the government before the Supreme Court, prevailing in 25 of them. He represented 18 states in United States v. Microsoft. In 1992, George H.W. Bush nominated Roberts to the U.S. Court of Appeals for the District of Columbia Circuit, but no Senate vote was held, and Roberts's nomination expired when Bush left office after losing the 1992 presidential election. Roberts returned to Hogan & Hartson as a partner, and
became the head of the firm's appellate practice. In this capacity, Roberts argued several cases before the Supreme Court:

See: Wikipedia (JohnRoberts)

Now let’s look at the qualifications for Harriet Miers …

Miers worked in private practice for the Dallas firm of Locke, Liddell & Sapp (and predecessor firms prior to mergers) from 1972 until 2001. She was the first female lawyer hired at the firm, and later became its president. When the merger that created Locke, Liddell & Sapp took place in 1999, she became the co-managing partner of a legal business with more than 400 lawyers… As a commercial litigator, she represented clients including Microsoft and the Walt Disney Company.

In 1986, Miers became the first female president of the Dallas Bar Association. In 1989, she was elected to one two-year term as an at-large member on the Dallas City Council; she did not run for reelection in 1991 after the structure of the council had changed…

In 1992, Miers became the first woman to head the State Bar of Texas. During her tenure as head of the Texas Bar, she led an unsuccessful effort to have the American Bar Association adopt a neutral position on abortion and drop its official
pro-choice position. She has also served as chair of the Board of Editors for the American Bar Association Journal and as the chair of the ABA's Commission on
Multi-Jurisdictional Practice.

Miers met George W. Bush in the 1980s, and worked as general counsel for his transition team in 1994, when he was Texas governor. She subsequently became Bush's personal lawyer, and worked as a lawyer in his 2000 presidential campaign…

In January 2001, Miers followed Bush to Washington, D.C., serving as Assistant to the President and Staff Secretary during the first two years of his presidency…. In 2003, she was appointed Deputy Chief of Staff for Policy. In November 2004, Bush named her to succeed Alberto Gonzales, his nominee for Attorney General, to the post of White House Counsel, the chief legal adviser for the Office of the President.

See: Wikipedia (HarrietMiers)

So why shouldn’t George Bush appoint Harriet Miers? Her career seems remarkably similar to that of John Roberts. Both have worked as lawyers in private practice. Both have taken on important Government service. The chief difference between the two of them seems to be that John Roberts had previously gone through the confirmation progress – and drawn the opposition of the Democrats. During that process Conservatives had gotten to know and like John Roberts. He had received their stamp of approval. Harriet Miers is an unknown. She has not been blessed by the Conservative elite.

George Bush has known her for many years and has complete faith in her abilities… If George Bush is right, why are the Democrats happy with her appointment? Probably it is because they are, themselves, in a very weak position. They made fools of themselves in the John Roberts’ confirmation hearings. Trying as hard as they could, they were unable to find anything in his qualifications to object to. So they now want to play a different game. The new game is trying to divide the Republicans between into moderate and Conservative camps divided against themselves. From the looks of things, they appear to be fairly successful.

We suggest that Conservatives relax. George Bush didn’t appoint one of their favorites. They feel that they have been rebuffed. But George Bush is a man of principle. He is a moderate -- not a true believer in Conservatism. They need to get over it. Maybe they are right. Maybe George Bush is right. But falling into Democratic traps will help neither the Conservatives nor the moderates.

The Conservatives have no real alternative at this point but to see where the cards fall. There will be time in the confirmation hearings to get to know Harriet Miers. If Conservatives can keep still long enough they may well find that the nominee is indeed qualified. After all their talk about the President’s right to pick any qualified nominee who agrees with his principles, they ought to be willing to let him do just that.

And it is still far from clear that the nomination will go through without the confirmation fight that Conservatives really want. What the Democrats fear is that the new court will permit the several States to restrict Abortion. They do not want to have to go back to their constituents to explain how they had allowed the appointment of justices who might allow such a result. In the end they may have little choice but to fight.