Open Miers thread

Comment away on the president’s latest Supreme Court nomination — current White House Counsel Harriet Miers. My substantive take is pretty much in line with the Volokh Conspiracy’s David Bernstein — particularly this point:

What do Miers and Roberts have in common? They both have significant executive branch experience, and 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.

Jack Balkin concurs: “Although we don’t know much about Miers, it’s likely that, like John Roberts, she was picked with a view toward protecting executive power.” That’s a thought that makes a small-government conservative just giddy with anticipation, doesn’t it? As for the politics of it, Michelle Malkin chronicles discontent on the right side of the blogosphere — including her own reaction:

It’s not just that Miers has zero judicial experience. It’s that she’s so transparently a crony/”diversity” pick while so many other vastly more qualified and impressive candidates went to waste.

Eerily enough, this parallels Josh Marshall’s reaction:

The key that this nomination should and, I suspect, will turn on is that the she fits the Bush administration mold — she’s a loyalist through and through. The lack of any other clear qualifications for the job becomes clear in that context.

Tom Goldstein at SCOTUSblog informs me that, “Moderate Republicans have no substantial incentive to support Miers.” As an anonymous e-mailer put it to me:

[At the confirmation hearings], there’ll be contrasts drawn with Mr. Resume who just took his seat — “We’ve just established that the lack of judicial experience or scholarly writings can be compensated for with a stellar legal record. And you, Ms. Miers, have done… what?”

Well, George W. Bush had this to say about her:

When I came to office as the governor of Texas, the Lottery Commission needed a leader of unquestioned integrity. I chose Harriet because I knew she would earn the confidence of the people of Texas. The Dallas Morning News said that Harriet insisted on a system that was fair and honest. She delivered results.

Whoa, hold the phone — she was a fair and honest Lottery Commissioner? Put this woman on the bench right away!!! [Isn’t that a little harsh?–ed. Look, maybe Miers is supremely qualified — I’m sure the hearings will reveal something about her competence at jurisprudence. However, a glance at her cv — and those praising her accomplishments — suggests that beyond not having ever served on a bench, she appears to have held no other job of parallel legal distinction. Would Miers ever be an answer to any legal question that starts, “Name the top nine lawyers who _____” — besides serving George W. Bush for an extended period of time? In a post-Katrina environment, that dog won’t hunt. You stole that from Jacob Levy–ed. Well, I only borrow from the best, and besides, Jacob also said he wanted this meme to travel as far and wide as possible.]] Given the politics of the Supreme Court right now, there was no one — no one — who was going to skate through this nomination. This choice, however, seems designed to tick off every variety of conservative known to man. No wonder Glenn Reynolds thinks Bush has pulled a perfect storm — and not in a good way. UPDATE: Cass Sunstein is blogging about Miers on the new University of Chicago Law School’s Faculty blog:

On technocratic grounds, the following recent nominees were obviously outstanding: Roberts, Breyer, Ginsburg, Scalia, and Bork. (Douglas Ginsburg belongs in that category as well.) No one could doubt the ability and relevant experience of these nominees. Their records clearly demonstrated that they were first-rate. The same could be said of several other recent nominees as well…. What about Harriet Miers? She might be superb, but her record and experience certainly do not compare to those of recent nominees.

Jacob Levy ain’t thrilled with Miers either. Meanwhile Senator Frank Lautenberg (D, NJ) tells the Associated Press that he finds Miers, “courteous and professional.” FINAL UPDATE: Oh, man, does Larry Solum find the right quote from Federalist 76.