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Bench Memos

NRO’s home for judicial news and analysis.

Feinstein



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Says (I’m watching her now) she’s going to wait and see. DiFi will not be able to get to know Miers as a “wife and mother” because she is neither. So she’ll have to revise here questions this time.

Another Profile



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Here’s a 2004 profile from the Legal Times.

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The Senate



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Matt, you may be in favor of more in-depth substantive questioning, but you won’t get more in-depth substantive answers, which has been my response to you before as it is now. Your position is, as they say, “academic.” Having said that, since, as you say, she has no useful record, if she refuses to provide the kind of responses to questions that you (and Schumer) would pose, would you vote against her? I assume the answer is yes, you’d vote against her, if only to compel nominees to begin to answer those kind of questions or risk defeat. In any event, I see no use in going more rounds on this. The fact is the president has disappointed.

A Prediction



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On SCOTUSBlog, Tom Goldstein predicts that Miers will be rejected by the Senate. I have tremendous respect for Tom as a court-watcher and legal analyst – but I don’t put much faith in his initial political analysis. It is extremely unlikely Miers will be rejected. Yes the GOP base is dispirited by this nomination, but not enough to urge for her rejection by the Senate. One should also keep in mind that she will be heavily supported by the business community. While many Democrats will complain about her lack of a paper trail and refusal to answer questions – and will relish the opportunity to quiz her in depth on constitutional matters – it is unlikely they will oppose her in the end because they have no reason to believe they would get a replacement nominee to her left. Indeed, several Democrats had urged the President to consider Miers for the post. Barring some terrible revelation – or a truly disastrous confirmation hearing – I think she will get through the Senate before Christmas.

The Miers nomination



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For starters, and with all due respect to Mark Levin, the claim that “[e]ven David Souter had a more compelling resume that Miers” strikes me as quite mistaken. So does the statement that “Miers was chosen for two reasons and two reasons alone: 1. she’s a she; 2. she’s a long-time Bush friend.” There is, at least, a (3), namely, that President Bush and his advisors — his advisors who are, it should be remembered, entirely committed to constitutionalism in the courts — believe that Ms. Miers is a judicial conservative.

I yield to no one in my respect for the “farm team” — McConnell, Alito, Luttig, etc. — but I am also surprised that some are so quick to assume that this President, who fought hard to get home-run judges Pryor, Owen, Colloton, Brown, McConnell, Sutton, Roberts, etc., confirmed to the courts, would suddenly drop the constitutionalism-ball just to be nice to an old friend or to satisfy those demanding another female justice. This is a White House — and, more particularly, this is a White House Counsel’s office — that is well stocked with very smart conservative lawyers, who understand that few things are as important to a President’s sucess, and few tasks are as central to his constitutional obligations, as judicial nominations. Whatever our complaints might be about some of this President’s decisions, I do not think he has ever given conservatives anything to complain about when it comes to judges and Justices.

It would, we all agree, have been a horrible betrayal and an epic blunder for this President to think that by nominating a woman to the Court — a woman without, arguably, battle scars from the “culture wars” in the courts, he could please the Left or guarantee an easy nomination process. It seems to me, though, that there is no reason to think that this President thought or thinks this. President Bush clearly believes that Harriet Miers is a conservative, who does share the commitment of Justices Scalia, Thomas, Rehnquist, and Roberts to a democracy-respecting understanding of the Constitution. This is not a case where those of us who believe strongly in the rule of law are being asked to rely on the vouching of Sununu and Rudman; this is a case where an Administration that has consistently — uniformly — picked solid judges is holding out a nominee who, the Administration reports, is every bit as solid. Frankly, I’m pleased by the fact that the White House Counsel who gave us Roberts, Pryor, Owen, and Brown has been nominated to join their ranks.

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DNC on Miers



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Me, Mark, and Miers



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Mark Levin only strengthens my conviction on the scope of questioning. He’s probably right that the two (apparently) overwhelming reasons Bush picked Harriet Miers are that she’s female and an old friend. The nomination is now a done deal, and anyone who wanted someone different has to wait till next time. But confirmation proceedings await, and they represent an opportunity to find out how a Justice Miers would think about constitutional questions. Maybe “next time” for a nomination will be sooner than anyone thinks, most of all the president. Precisely because she is for many of us a completely closed book on these matters, I am now more than ever in favor of unbridled Schumerism. (This morning I doubt that Chuck Schumer is any longer a Schumerist, which if so would be a bad sign.) Let the questions fly!

“Conservative Group Opposes”



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I’m not ethused, as you know, but you can dismiss this. Not exactly mainstream–this is the same outfit that opposed Roberts. (And Byron was one of the few of us who knew who he even was.)

The “Christian Wire Service,” by the way, has sent out releases in the past painting Bill Pryor as a squish. Bill Pryor.

Rallying



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Jay Sekulow joins Leonard Leo:

(Washington, DC) – The American Center for Law and Justice (ACLJ), specializing in constitutional law said today that Harriet Miers, the nominee named by President Bush for a seat on the Supreme Court of the United States, is an excellent choice who represents the conservative mainstream of judicial philosophy of interpreting the Constitution, not re-writing it.

“Once again, President Bush showed exceptional judgment in naming Harriet Miers to the Supreme Court to replace Justice O’Connor,” said Jay Sekulow, Chief Counsel of the ACLJ, who argues regularly before the high court and has a pro-life protest case at the high court this term. “At a time when the high court is facing some of the most critical issues of the day – including a number of cases dealing directly with abortion and life issues – the person who replaces Justice O’Connor is critical. Harriet Miers is an excellent choice with an extraordinary record of service in the legal community and is certain to approach her work on the high court with a firm commitment to follow the Constitution and the rule of law. I have been privileged to work with her in her capacity as White House counsel. She is bright, thoughtful, and a consummate professional and I enthusiastically endorse her nomination.”

Sekulow added: “We look forward to a speedy confirmation process and will work aggressively to ensure that Harriet Miers gets full and fair consideration before the Senate. We call on members of the Senate to reject the partisan political rhetoric and focus on the judicial philosophy of this conservative mainstream nominee.”

Sekulow said the ACLJ will begin mobilizing a national campaign to ensure that Miers is confirmed. Sekulow said he will generate support for the nominee through his daily radio broadcast that reaches 1.5 million listeners, through his weekly television show, by using direct mail, phone calls, and emails to a list approaching one million supporters.

“We know the intentions of the liberal left – to do anything possible to derail this nominee,” said Sekulow. “We are prepared to meet those challenges head on and ensure that this battle ends with the confirmation of Harriet Miers as an Associate Justice of the Supreme Court.”

“If we were going to take a position on this divisive issue, the members should have been able to vote.”



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Here’s something potentially good: If she didn’t want the ABA to dictate its position on abortion on members without a vote, surely she’d think the courts shouldn’t be imposing their will on the issue….

Franck & Miers



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I understand Matt’s point, as he’s written so eloquently about it many times. But, in truth, we already know what’s going on here, and that the president, despite a magnificent farm team from which to choose a solid nominee, chose otherwise. Miers was chosen for two reasons and two reasons alone: 1. she’s a she; 2. she’s a long-time Bush friend. Otherwise, there’s nothing to distinguish her from thousands of other lawyers. And holding a high post in the Bar, which the White House seems to be touting, is like holding a high position in any professional organization. But it reveals nothing about the nominee’s judicial philosophy. There are many top officials in the Bar who I wouldn’t trust to handle a fender-bender. Also, early in his term, the president singled out the Bar for its partisan agenda and excluded it from a formal role in judicial selection. The president said he would pick a candidate like Antonin Scalia or Clarence Thomas, and he did not. We all know of outstanding individuals who fit that bill, and they were once again passed over. Even David Souter had a more compelling resume that Miers.

The president and his advisors missed a truly historic opportunity to communicate with the American people about their government, the role of all three branches of the federal system, and the proper function of the judiciary. More importantly, they have failed to help the nation return to the equipoise of our constitutional system. And the current justices whose arrogance knows no bounds will be emboldened by this selection. They will see it as affirmation of their “extra-constitutionalism.” The president flinched. Some have compared have compared profligate spending to Franklin Roosevelt’s New Deal. But no one will accuse him of FDR’s boldness when it comes to the Supreme Court.

If people are disappointed, they have every reason to be.

Chills, Continued



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Harry Reid is happy, according to FNC

“When it comes to a cross-examination, she can fillet better than Mrs. Paul.”



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I don’t think it helped anything at all, but that was awfully everyman of him.

“The Miers nomination...is an unforced error.”



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Chills



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Bob Beckel, on Fox this morning, says he is “relieved” by the choice.

Leonard Leo on Miers



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And here is the excited conservative so far this morning:

In nominating Harriet Miers, the President has once again kept his commitment to select Supreme Court justices who are very well qualified and share his philosophy of interpreting the law, not legislating from the bench.

I have worked closely with Harriet in the past and I am very excited about the president’s pick of my friend. As White House Counsel, she has helped carry out the President’s promise to find and select judicial nominees such as John Roberts who will interpret the law rather than make it up. She played a key role in the Roberts selection process, and was a strong advocate for breaking the filibusters in relation to Judges Priscilla Owen, William Pryor, and Janice Brown, among others.

Her judicial philosophy is summed up in the statement she made this morning accepting the nomination:

“It is the responsibility of every generation to be true to the founders’ vision of the proper role of the courts and our society. If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong and to help ensure that the courts meet their obligations to strictly apply the laws and the constitution.”

Harriet Miers has a distinguished record of private practice and government service, providing an important set of experiences and perspectives to the Supreme Court bench. She has also on a number of occasions demonstrated her commitment to conservative legal principles and the principles of judicial restraint in fairly applying the law, and not making public policy from the bench.

 As a leader of the bar, Harriet Miers was a fearless and very strong proponent of conservative legal views. She led a campaign to have the American Bar Association end its practice of supporting abortion-on-demand and taxpayer-funded abortions.

 In her work respecting the War on Terror and the threats posed to our country by misuse of foreign and international law, Ms. Miers has applied the Constitution as the Framers wrote it.

 She was National Co-Chairman of Lawyers for Bush-Cheney in 2000 and helped manage the Bush v. Gore litigation effort.

 She has shown a commitment to advancing the rule of law through her participation in activities of the Federalist Society, the American Tort Reform Association, and other legal organizations.

While she is sure to meet criticism from some Democrats and liberal interest groups who want Supreme Court nominees to impose political agendas, her credentials and approach to the law will be welcomed by the American people, who time and again have expressed their frustration with court decisions that have imposed law rather than interpreted it.

Harriet Miers is an excellent choice for this president and conservatives should be very happy with this selection.


I Need to Get Myself One of these For the Miers Confirmation Process



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Photoshop Ms. Miers head for the UFO.



Or PhotoShop in Dubya’s mug–I want to believe he’s doing the right thing.

That’s What the White House Was Hoping For



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I haven’t heard anything from Ralph Neas & co. yet on Miers. I gather they don’t know what to say.

This May Not Be At All Fair



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But near everyone I’ve talked to this morning feels demoralized (albeit some to differing degrees) with the Miers pick. It could be that there was just too much Priscilla Owen/Janice Rogers Brown talk in the last few weeks. But if Miers doesn’t turn out to be a stealth Scalia type–maybe she will yet– people like Rick Santorum are going to be the most demoralized in the coming months.

Needless to say, judges are a big deal and played no small role in the election last year.

Argh–and Kool and the Gang’s “Misled” just started playing on my itunes.

Now It Makes Sense...It’s Getting Us Ready for Bork



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A reader e-mails:

Don’t worry, it’s all just a Rovian strategy to pick someone who has little apparent qualifications so the Dems can spend all their capital attacking her. Eventually, Bush will give up and she won’t be confirmed. Then, he announces his TRUE pick, and the public runs out of patience for the dems trying to defeat two in a row. Eh? Eh?

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