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Bench Memos

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Miers the Broker, Miers the Nominee



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Yesterday, Ramesh Ponnuru was on Hugh Hewitt’s radio show. According to the transcript on www.radioblogger.com, when Hewitt asked whether he trusts the president’s judgment of someone’s legal philosophy, Ramesh answered candidly, tough-mindedly, and I think correctly: “no, I don’t think that a president can or should be in the position of making evaluations of somebody’s judicial philosophy. It’s not the type of thing . . . that you’d expect a president to be good at.”

Which brings me to this. 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). This is not the same thing as evidence that she is well-suited to be a justice herself, but it doesn’t rule it out either. At some point over the weekend, though, if not longer ago, the president suggested to Miers that she herself be the nominee. (I am ruling out as highly improbable the notion that Miers suggested herself or forwarded someone else’s suggestion of her own name.) If she were a truly honest broker, she would then have given him a list of reasons why nominating her was a bad idea, politically and maybe even jurisprudentially. Did she? Maybe she did, and Bush overruled her arguments. But should we be happier with Harriet Miers if she pressed Bush hard not to do this, or if she acquiesced in his suggestion with little or no resistance? The former could be either a sign of self-knowledge that she will not be Bush’s kind of judge and a desire to serve the president’s purposes, or a sign merely of a becoming modesty and self-effacement. The latter could be a sign of ambition in full flower, or of a settled confidence that she will in fact be Bush’s kind of judge. We’ll probably never know until and unless Harriet Miers writes her memoirs (if then) what sort of conversation occurred between them. The trouble is, her own self-interest became inextricably bound up in the process of decision-making at that point. Not a good thing, and it was Bush’s fault. So, to whom did he turn, if anyone, for an opinion on Miers’s merits?



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