Miers Out, Fingers Crossed, and a CNN Poll

When Miers bowed out, there was a collective sigh of relief among conservatives and liberals alike. Everyone is awaiting the next pick. And CNN is spinning (click on the chart above for a larger view):

On the question of the philosophy of Bush's next nominee, respondents came down solidly on the side of someone who has moderate or liberal views -- with 34 percent choosing "moderate" and 24 percent picking "liberal."
Only 14 percent thought the nominee should be "very conservative" and 23 percent chose "somewhat conservative."

"Only" 14 percent thought the nominee should be "very conservative" sayeth CNN. But all respondents who said that they wanted Bush to appoint a "conservative" together make up 37 percent, quite a bit more than all who said "liberal" (24).

The question is a bit nonsensical anyway. What does CNN mean by "conservative"? And, of course, liberals want a liberal judge, and conservatives want a conservative judge. So what was the point (other than to use the poll to influence public opinion)?

Note that only one out of four of Americans want a liberal justice appointed. But the likes of Justices Ginsburg, Breyer, Stevens, and Souter comprise almost half the court's composition. So maybe Bush should appoint a conservative to balance the Court and give the American people what they supposedly want. At least that logic is no more flawed than CNN's.

Miers Nomination: Headed for a Train Wreck

[Update: Approximately 10 hours after I wrote this entry, Harriet Miers withdrew her nomination to be the next associate justice of the Supreme Court.]

The past few weeks have been grand fun. What new revelation will take place in the Harriet Miers saga?

I've been critical of the Miers nomination primarily because so many other qualified people were passed over and because of the bungled defense of the nomination (for instance, calling critics sexist elitists and blissfully claiming that Miers's religion is somehow a legal credential). But I am still willing to believe that she is nominally qualified to be on the Supreme Court-- and that there are credible arguments that she should be confirmed if her performance at the hearings is satisfactory. But we have reached the point where Bush must ask for Miers to withdraw. It's time to stop the bleeding.

"Regular" Republicans outside the Beltway are still telling pollsters that they "support" Miers by a wide margin. But in activist conservative circles, there is outright rebellion that is only getting more intense. Rank and file Republicans may provide the votes, but it is the activists who get those voters to the polls. There aren't enough blind Bush supporters to go around.

Not only is Miers far from the most qualified female Republican who could have been appointed, she may only be nominally a Republican. Definitely not much of a conservative. This much is evident from her speech (text) delivered to the organization Executive Women of Dallas in 1993.

Here's a beauty in that speech: "Legislating religion or morality we gave up on a long time ago." No doubt about it, that's liberalspeak. Only liberals talk about "legislating morality." Of course, liberals are legislating morality when they propose banning all smoking in private restaurants and bars.

Over on Redstate.org, where the intellectual conservatives hang out, one "gensec" writes:

I take the time to refute some liberal who's just repeating one of those myths you're socially required to believe in some circles, when the real problem is that President Bush has nominated to the Supreme Court some jackass dumb enough to deny "legislating morality." [A]fter seeing her "Executive Women of Dallas" speech demonstrate what a pathetic airhead conformist Miers is, I'm apalled.

What that Redstate.org entry demonstrates is that the tipping point has been reached where opposition to Miers has passed from respectful opposition to outright derision. Yet Republican Sen. Larry E. Craig issued the following disdainful statement to activists: "It's awfully hard to be critical of something you know nothing about." Strange.

And here's the rub: Bush has appointed someone who could easily become a liberal activist judge once she is on the bench. Yet for Republican Senators to oppose her on ideology grounds would cement what Senator Chuck Schumer wants as status quo: the ability to oppose nominees on the basis of ideology. Ruth Bader Ginsburg wouldn't have received 96 votes in the Senate if ideology was a factor in confirmation. But Schumer wants to call every conservative jurist an "extremist" and vote against the person on grounds of ideology. For Republican Senators to vote against Miers because they aren't convinced that she is conservative enough plays right into Schumer's hands.

The Republican Senators do not deserve to be placed in such an untenable position. Bush must do the right thing for the Party and for himself. The Miers nomination must be withdrawn.

A Brief Moment of Lucidity

(This entry is the first in a series on the state of freedom in the District of Columbia.)

The D.C. Council's vote this past Wednesday to curb the District's zero-tolerance law giving police officers the discretion to arrest individuals driving with even minimal amounts of alcohol in their system represents an uncharacteristic lurch towards reason.

The swift action by the Counsel came primarily because the Washington Post reported the travails of one Debra Bolton, energy lawyer and single mother of two, whose single glass of wine with dinner resulted in her being handcuffed, searched, arrested, jailed until 4:30 a.m. and charged with driving under the influence of alcohol. All of this over a blood alcohol content measuring .03.

When word of such arrests spread, the thuggish police state activity didn't go over well with the citizens. Local bars and restaurant establishments, who already have the possibility of a smoking ban hanging in the balance, reacted with alarm. Prohibition policy on the road is bad for business that relies in part on alcohol. Even a City Council like D.C.'s can understand the outrage when its members are swamped with irate phone calls.

I learned about D.C.'s zero tolerance policy two months ago, having learned about it during a half hour conversation with a police officer as noted in my August 5th posting The Human Cost of Bureaucracy. As the officer described it, his fellow officers often gave individuals suspected of having alcohol in their systems the option of locking their keys in the car and calling a cab. Apparently some officers "didn't get the memo" on this more reasonable application of the law. Now officers' discretion will be reduced if Mayor Williams signs the emergency bill.

But don't be fooled. The Council's actions the past few days are not evidence of a sympathy towards individual liberty. The Council understands that sales tax revenues will decrease if people are afraid to venture into the District for a drink, when they can stay closer to home in Virginia or Maryland. The Council also understands that quick action in response to voter outrage is the best way to quell an uprising. But the change-- which would parallel the laws of neighboring states by holding that drivers with less than .05 blood alcohol are presumed not intoxicated --is only temporary. It is also an issue more easily turned into a rally for change.

Less obviously pernicious, but still very troubling, are D.C.'s photo speed cameras. My driving philosophy is "swiftly but safely." I drive as fast as I feel comfortable, considering what is safe for myself and others. And so do many other drivers, notwithstanding the posted speed limit of 45 MPH towards the end of I-395 where it dead-ends (an absurdity in itself) at New York Avenue.

The District has installed at speed camera along I-395 within D.C.'s city limits, hitting me twice (so far) with $100 tickets for driving 61 MPH in what should be a 55 MPH zone. Fair enough as far as the first ticket goes, it is the law after all. But the second, which I just received the other day, is constitutionally troubling.

The Fifth and Fourteenth Amendments to the Constitution (Harriet Miers, are you taking notes?), require that a government give its citizens "due process" when applying its laws. Due process requires adequate notice of the law. Although the posted speed limit may be 45 MPH, if drivers routinely operate their vehicles at a rate ten to 15 miles per hour more than the posted limit as a matter of course without consequence, citizens begin to realize that the "real" speed limit is not the posted limit. When a government decides to tighten enforcement of a lax law, it again gives its citizens notice of the true state of the law.

In September, I received a ticket that was mailed 10 days after the violation in mid-September. That isn't a bad turnaround time. But what to make of the ticket I received in mid-October for a violation from late August? The District hired a corporation that has no incentive to notify the driver of his/her need to comply with the suddenly-strictly-enforced law. An individual who drove the same route every day could easily rack up $1,000 worth of fines before ever receiving notice of the first violation. It has a wiff of a due process violation and the pungent smell of unfairness.

But unless Debra Bolton, the victim of D.C.'s absolutist alcohol laws, becomes a Cindy Sheehan-like opponent of the District's motor vehicle laws, don't expect the District's manner of applying the speed cameras to change. The speed cameras operated at the corporation's expense translate into easy cash for the District. Council members who pride themselves on their progressivity will not reconsider this regressive tax on motorists without a Bolton-like incident.

The State of Freedom in the District of Columbia

The District of Columbia should be called "the Berkley of the East." It is difficult to think of a local government where more leftist ideas enjoy a stronger measure of respectibility. In a series of essays, I will explore the impact of D.C.'s statist government on individual freedom and dignity.

The topics of discussion include:

< The dangers inherent in a one-party city and what must be done to change the status quo.

< The District's draconian handgun ban and restrictions on other weapons represent a violation of the fundamental right to self defense.

< The recently-enacted prescription drug price controls-via-trial-lawyer scheme demonstrates yet another example of governmental contempt for the producers in society.

< Midnight police stop and searches take place without even the existence of reasonable suspicion.

< The City Council is poised to pass a smoking ban in all D.C. restaurants, taking choice away from consumers in an effort to protect them from obvious dangers that they already account for when patronizing a restaurant.

< D.C.'s notoriously Byzantine bureaucracy is so out of control that no one-- not even employees within the government itself --knows for sure what the law is or how many permits (and from whom) are need to secure compliance with the regulatory regime.

Laura Bush Fails to Rebut Miers-critics-might-be-sexist-canard

The President and Laura Bush discussed Miers during an appearance on NBC's Today show earlier today. Asked by host Matt Lauer if sexism might be playing a role in the Miers controversy, she said, "It's possible. I think that's possible. . . . I think people are not looking at her accomplishments." Mrs. Bush then went on to state how much Miers has overcome in her life.

Some Bloggers with access to the transcript of the show have cast Laura Bush's comments as just an errant response to a journalist's well-laid trap, arguing that with the statement "that's possible," Bush was brushing off the journalist's question while trying to get her talking points across. It's valuable to look at the statement in context, and it certainly diminishes the harshness.

However, if Lauer had asked, "Do you think Bill Bennett is aborting black babies in his basement," and Laura B. had responded "It's possible, but what I really want you to know is . . ."-- what would that say? The correct response should be to say "Absolutely not." Are Ann Coulter, Michelle Malkin, and several other women commentators strongly opposed to Miers "sexist" as well? And how does one explain that Judge Janice Rogers Brown and other conservative women judges are many conservatives' dream picks?

By failing to flatly reject the proposterous sexist theory first floated by Ed Gillespie, Mrs. Bush became complicit in the tactics of the left-- i.e., playing the sexist card. She is either a willing bystander or a dupe of the liberal press.

If overcoming obstacles was a key aspect of the decisionmaking process, as Mrs. Bush seems to say, then Judge Janice Rogers Brown was the obvious choice. Besides being a far more qualified choice, she had to overcome racism as well as sexism.

The Miers situation is not getting better with age.

Three Women Lawyers Better Qualified Than Supreme Court Nominee Harriet Miers

President George W. Bush has called his Supreme Court nominee, Harriet Miers, "the best person I could find." If he truly believes that, no wonder he couldn't find any weapons of mass destruction in Iraq.

As has been widely reported, White House adviser Ed Gillespie suggested at a closed meeting that some of the conservative unease about Miers "has a whiff of sexism and a whiff of elitism." Mr. Gillespie, the Miers nomination has a whiff of cronyism and a whiff of political expediency. Many Republicans don't want a insider crony of whatever gender appointed to the Supreme Court, even if she would vote the way they would like.

At a moment when the party is reeling from indictments, investigations, bloated deficit spending, and the Katrina fallout, Bush dealt a heavy blow to his party's morale. Under any objective evaluation, Miers is not the best nominee to be found. Nor is she the best woman nominee (a large number of female federal judges immediately come to mind), nor is she the best female nominee not sitting on a federal bench. If Bush wanted to limit his selection to a woman who is not a judge, the nominee had to be impeccably qualified.

Off-hand, I can name three solidly Republican non-judicial women lawyers who are better qualified. I'm sure there are many more. Not all of the following women are ready for such an appointment-- for one thing, two are under age 40. Perhaps once Miers brings herself up to speed, she might surpass some of them. But at this moment, three trump Miers.

First of all, why are Miers' credentials relatively weak? She may have been the first woman to lead the Texas Bar Association, but that position likely reflects her political skills rather than her legal prominence. Having served on the Dallas City Council, another fine accomplishment, she appears to be foremost a politician. Her area of legal expertise is in corporate law, not constitutional or federal statutory law. And her law school isn't ranked in the top 50.

Miers has been named as one of the top 50 most powerful woman lawyers, but not one of the best litigators. I do not know of any extensive legal scholarship she has written. Oh, and she gave large campaign contributions to Democrats until she began giving to Texas Republicans in the early 1990s. Miers clerked for a Texas federal district court judge and achieved prominence in a Texas law firm. Her current position as White House counsel is the pinnacle of her career.

And this just in: Miers has said that she won't belong to the Federalist Society or other "politically charged" groups. Miers's favorite organization, the American Bar Association, takes official political positions (liberal ones), the Federalist Society does not.

And now for the comparators:

1. Maureen Mahoney

It is difficult to understand why President Bush selected Miers over Maureen Mahoney. Mahoney is better qualified in every way, has been called a "female John Roberts," and the First President Bush even nominated her for a district court slot 14 years ago (Clinton was elected before she could be confirmed)! She is undeniably a Republican (she was on the Bush II transition team), and the only major snag is that she won the University of Michigan affirmative action case in the Supreme Court. Nina Totenberg has described Mahoney as "a very, very conservative woman Catholic."

Maureen Mahoney's credentials? In 1978, she graduated from one of the top six law schools in the country with honors, the University of Chicago, and served on the University of Chicago Law Review. She clerked for Justice William H. Rehnquist, as well as a Seventh Circuit judge. Like Roberts, she was one of Kenneth Starr's deputies when he was solicitor general for Bush I.

Ms. Mahoney argued her first case before the Supreme Court in 1988 and won the case in a 5-4 decision. The American Lawyer reported that “her presentation was so well-schooled, poised, and disciplined that, according to one justice, the justices passed notes among themselves during the argument praising Mahoney and asking questions about her background." She has argued 13 cases before the nation's highest court.

Since 1993, Maureen Mahoney has been a partner in the Washington, D.C. office of Latham & Watkins, a prominent national law firm. National Law Journal named her one of America's top 50 women litigators. Ms. Mahoney was appointed by then-Chief Justice Rehnquist to serve as the Chair of the Supreme Court Fellows Commission and as a member of the Advisory Committee on Appellate Rules to the United States Judicial Conference.

2. Rachel Brand

Only in her early 30's, Rachel Brand already has an accomplished career. Since July 2003, Brand has served as the Principal Deputy Assistant Attorney General in the Office of Legal Policy of the United States Department of Justice. In this position, she assists with the development and implementation of a variety of civil and criminal policy initiatives, the President’s judicial nominations, and the management of the Office. She focuses particularly on issues related to the war on terrorism.

Like Miers, Rachel previously served as an Associate Counsel to the President. Before that, she worked at the boutique conservative constitutional litigation law firm Cooper, Carvin & Rosenthal. She clerked for U.S. Supreme Court Justice Anthony Kennedy and Massachusetts Supreme Judicial Court Justice Charles Fried. Rachel received her J.D. from Harvard Law School (usually ranked second out of more than 200 law schools), where she was Deputy Editor-in-Chief of the Harvard Journal of Law and Public Policy. I'm pretty sure that Brand is a member of the Federalist Society.

Brand trumps Miers on law school ranking, clerk experience, conservative credentials, and legal expertise. Miers has about three times as much general legal experience, but Brand already has experience drafting Supreme Court opinions.

3. Wendy Long

Long attended one of the top ten law schools in the country, Northwestern University School of Law and served as Articles Editor of the Northwestern University Law Review. She clerked for Justice Clarence Thomas (is anyone noticing a pattern here?) and Ralph K. Winter, Circuit Judge, United States Court of Appeals for the Second Circuit.

Until 2005, Wendy Long was a partner at one of the most prestigious firms in the country, Kirkland & Ellis, Kenneth Starr's former firm. She previously served as a press secretary in the U.S. Senate, for former U.S. Senator Bill Armstrong (R-Colo.) and former U.S. Senator Gordon Humphrey (R-N.H.). Currently, she is legal counsel to the Judicial Confirmation Network. Her Republican credentials are undeniable, as she has close ties to the Republican National Lawyers Association. She is in her early 40's.

Long trumps Miers on law school ranking, clerk experience, conservative credentials, law firm prestige, and legal expertise. Miers has about twice as much general legal experience and probably more litigation experience.

Here's one more: Brigida Benitez

Bush wanted to appoint a woman, and he also wanted to appoint a Hispanic. But he couldn't have his Kate and Edith too, right? Wrong.

Brigida Benitez is a partner at the prestigious law firm of Wilmer Cutler Pickering Hale and Dorr LLP. She is the longest shot of the group, having graduated from "only" Boston College School of Law (26th), ranked within shouting distance of my alma mater. But she was Editor-in-Chief of its Law Review. Unlike the other three comparators, she did not clerk for a Supreme Court Justice.

Benitez has won high-profile cases and led complex civil litigation, arbitration and investigation matters. She has represented clients across the country in federal district court and circuit courts of appeal, as well as the United States Supreme Court. Her clients include CitiGroup, Sears Roebuck & Co. and Fannie Mae. She successfully second-chaired (here's that case again) the University of Michigan case before the United States Supreme Court.

She has served as President of the Hispanic Bar Association of the District of Columbia. Her Republican credentials are impeccable, given her key involvement with the Republican National Lawyers Association and membership in the Federalist Society.

Miers is more qualified than Benitez, but not by much. Miers has more overall experience and gravitas, but if I was a client with an important case before the Supreme Court, I'd probably hire Benitez and her firm first. Benitez went to a better law school and has paid her Republican dues from the beginning. She also is an independent thinker, willing to buck her Federalist Society colleagues on the affirmative action issue. Then again, perhaps the same could be said of Miers and the gay rights issue, although she was a Democrat at the time. Benitez is a woman in her 30's with experience comparable to 60-year-old Miers. The two things that set Miers apart other than her far longer legal service, is that she has been elected to a local office and been primary counsel to the President.

Bush stretched too far with the Miers nomination. He either should have chosen one of the women named above (or someone comparable), or named one of the many women with conservative credentials currently serving as appellate judges.

The Miers appointment reveals once again a President who really is not a true-believer conservative. He does not believe in limited government. He doesn't seem to understand what is at stake with this Supreme Court nomination-- like the Democrats, he must think that the abortion issue is all that matters. Too often, he has placed political gain over principle.

If confirmed, the very competent Harriet Miers will probably rise to the occasion. Perhaps she will formulate a judicial philosophy that rests on neutral principles rather than crass political calculations. If so, given the impetus behind her nomination, that would be ironic.

Harriet Miers: A Super-Duper Pick?

So President Bush has chosen White House counsel and Texas superlawyer Harriet Miers to be the next justice of the Supreme Court. I'm not surprised at all. To use Sen. Arlen Specter's legal terminology, it's a super-duper pick.

A few months ago, Miers spoke at a luncheon hosted by the Republican National Lawyers Association. Those present were fascinated by her spirited call for limited government. She railed against judicial activism. At other times, the audience was captivated by her spirited wit and deep insights. Quietly, everyone was thinking the same thing: this woman should be on the Supreme Court, she's another Antonin Scalia.

Actually, Miers did speak to the RNLA, but I don't recall anything she said. She avoided most of the interesting legal issues (unless you're a lawyer of course, in which case "interesting" is much more broadly defined). She came across as very competent, very lawyerly, and, as a speaker, unexceptional.

U.S. News & World Report issues a ranking of the law schools every year that lawyers and potential lawyers read and then pretend it does not matter. Miers attended Southern Methodist University in Texas, ranked 52nd. Since the law school I attended is ranked significantly higher, I feel much better now with the knowledge that I too might some day be appointed to the Supreme Court, provided that I am close friends with the President.

President Bush could have chosen one of any number of women who are better qualified, who would have undeniably permitted him to keep his campaign promise, who would have demonstrated guts. Instead, Bush took the easy way out, but still opened himself up to charges of appointing an unqualified crony. Does "W" stand for "wuss" or "waterlogged"?

Conservatives might yet get another Scalia out of Miers, but it's possible that Miers herself does not know what she thinks about a wide range of constitutional issues. She has been working diligently on behalf of clients, who told her what they wanted the legal outcome to be. Now she will be her own woman. She could just as likely be a Scalia as she could be a Ruth Bader Ginsburg. Perhaps we'll learn more in the coming weeks. We'll definitely learn once she's on the bench.

The Bill Bennett Controversy: Incivility All Around

Nearly everyone knows about Bill Bennett's comments made on his radio talkshow, so I won't repeat them, other than to reiterate that he immediately added that his theoretical suggestion would be "an impossible, ridiculous and morally reprehensible thing to do."

It is true that the chances of going to prison are much greater for black males than other demographic groups, as illustrated by the graph to the right from Wikipedia. But Bennett was asked a question about the impact of abortion on Social Security without the caller making any mention of race. The idea that the crime rate would decline if every black baby was aborted was an uncivil slap in the face to African Americans everywhere. It wasn't necessary for Bennett to use a race-based analogy for him to make his point. It was a blunt reference to a delicate, sensitive, and troubling issue. It is often argued that racism, poverty, lack of life opportunities, and the cultural divide are all contributing factors.

Bennett was out of line. But so are his critics.

Rep. John Conyers Jr. (D-MI) issued a letter calling on the Salem Radio Network to suspend Bennett's show. It is unseemly for a member of Congress to demand that a citizen speaking on a matter of public concern have his voice silenced because the government official strongly disagrees with the free speech expressed in off-the-cuff remarks. Not surprisingly, Senator Ted Kennedy (D-MA) swiftly called Bennett a "racist." Is it any wonder that public knowledge of Bennett's comments is far, far more widespread due to the volume of his critics, who have fanned the controversy?

The danger of the extremely heated, angry response to Bennett's comments is that public debate on issues of race will be squelched. Hearts indifferent to racial sensitivities will harden when put on the defensive, and the goal of closing the racial divide will be inhibited. The precise problem with Bennett's remarks requires some explanation. This could have been a teaching moment that could have built understanding between blacks and whites. Instead, Bennett's detractors have nearly turned him into a victim.