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October 09, 2005

I'm not wild about Harriet

I'm probably one of the only political bloggers who hasn't yet weighed in on Bush's nomination of Harriet Miers to the Supreme Court. Well, better late than never.

No sir, I don't like it.

But the reason I don't like it is not any of the straw men that have been set up by supporters of the nomination. I don't care that she didn't go to an Ivy League school. Those who know me know that I have little respect for America's institutions of higher education (and lower education, for that matter), and I'd support a good nominee even if his degree came from Big Bob's Mail Order School for Law-Talkers.

I don't care that she's never been a judge. The nomination of a non-judge to the bench is certainly not unprecedented. I don't care that she's sixty years old. Better twenty years of a good nominee than forty years of a bad one. I don't care that she's a crony of the President. And I certainly don't care that she's a woman.

Nope. My objection to Miers is that her nomination represents a terrible missed opportunity. The great struggle which will decide the future of the United States is over the extent of government power. It's about freedom versus coercion; the individual versus the collective. It's about whether the Constitution, which plainly protects individual liberty and just as plainly severely restricts federal power, will be read according to its plain meaning or will be given "penumbras" and "emanations" that somehow make it mean its exact opposite. President Bush had an opportunity to decisively swing the Court in the right direction, and as far as I can tell, he muffed it.

Maybe he didn't muff it. But the burden of proof is on him, and on Miers's supporters, and of course on Miers herself, and that burden has not even remotely been met. Many on the right argue that the President deserves the benefit of the doubt; that we should give Miers a chance before we express our disgust. Sorry, but the President forfeited the benefit of the doubt on matters Constitutional when he signed the BCRA into law, and the fact that the Supreme Court upheld this blatant infringement on free speech only highlights the importance of this nomination and why it's insufficient to blindly trust President Bush on the matter.

What makes this especially disenheartening is that, in the field of conservative jurisprudence, we've got some real rockstars. We've got a very deep bench, pun intended. We've got Luttig of the Fourth Circuit, Garza and Jones of the Fifth, and Brown of the D.C. Circuit. We've got plenty more where that came from, but my personal favorite is Judge Alex Kozinski, a rare flower in the dungheap of the Ninth. You have to love a judge who opines while dismissing both a claim and a counterclaim that "the parties are advised to chill", who hides over 200 movie titles in an opinion dealing with an antitrust case against a theater owner, and who writes a dissent so blistering that the winning party moves to dismiss.

Just thinking about the words "Justice Kozinski" makes me weep tears of joy. And that's why I'm disgusted by the President's choice. He could've given us an exclamation point. Instead, he gave us a question mark.

Major Mike of My Sandmen supports Miers's nomination with the military acronym MOOSEMUSS. I've got to be honest, I'd never heard of MOOSEMUSS before Hewitt linked to Mike's post, as I'm sure is true of 99% of those who followed the link. I agree that military strategy often has analogues to political strategy, but I disagree with the application of MOOSEMUSS as Mike lays it out. Let's go through the list:

  • M is for Mass - Concentrate your power where it is most effective. Mike argues that the President should not "expend all of his political capital" on a nomination fight. He overlooks the fact that political capital doesn't accumulate in a bank, and that it must be used or be lost. A successful confirmation fight would increase the President's stock of political capital, not decrease it. On the other hand, caving to the opposing party by deliberately seeking a nominee to whom they won't object -- implicitly conceding that he lacks the power to act against the minority's wishes -- tends to decrease the President's capital by making him look weak.
  • O is for Objective - Direct your efforts towards a clearly defined goal. I couldn't agree more that Objective is a critical element of strategy, and I couldn't disagree more with Mike's definition of the objective. Mike states that the objective is "the ultimate emasculation of the Democrat[ic] Party to the point it is ineffective as an organization." Wrong, wrong, one hundred percent wrong. That is taking one's eyes off the prize. That is losing sight of the objective. Never forget that the Republic will be neither strengthened nor weakened by having people in high office with R's next to their names. Political gain is not the goal, it's merely a means to an end. The Objective is to get quality conservative judges seated on the bench, not to strengthen the Republican Party for the purpose of strengthening the Republicna Party.
  • O is for Offensive - Seize the initiative; be proactive rather than reactive. I don't understand how the Miers pick could be characterized as "offensive"... at least, not in the sense of the word that is meant here. Miers is a defensive pick, pure and simple. One of her primary qualifications is her supposed ability to slip through without a fight. That's not going on the offensive against the enemy, that's conceding to him.
  • S is for Surprise - Strike the enemy where he is unprepared. Well, the Miers pick is certainly a surprise, I'll give it that, but here is an area where the military analogy falls short. The Democrats would certainly be surprised if the President nominated Bill Clinton, too... that does not mean that it would be to his advantage to do so.
  • E is for Economy of Force - Use the minimum power necessary to achieve the goals. The sticking point here is that Economy of Force means expending as little energy as possible -- and not a single erg less. It is no advantage for the President to shy from bringing the big guns to bear if the smaller guns do not achieve the objective.
  • M is for Maneuver - Strike the enemy's weak point. Choosing a nominee who's enthusiastically supported (and, according to some accounts, even recommended) by the enemy's leader is not maneuvering to his weak point. It's granting him victory without even a fight.
  • U is for Unity of Command  - Ensure that everybody works together under the commander. One of the ways to achieve this is to make sure your troops have confidence in their leadership, that they trust their leaders to achieve their goals and direct their efforts to a useful cause. In the context of politics, this means not pissing off your base by thumbing your nose at their concerns. The Miers pick has not achieved Unity of Command, it has sparked the ugliest fragmentation among conservatives that I can recall in my lifetime.
  • S is for Security - Do not give the enemy an unexpected advantage. Bush has done just that by allowing the enemy to choose his nominee for him.
  • S is for Simplicity. Well, if nothing else, I must admit that the Miers nomination shows a great deal of simplicity on the President's part.

Why, Mr. President, why? Did you really not anticipate this ugly reaction by your supporters? The Democrats would have us believe that Karl Rove possesses the most Machiavellian mind since, well, Machievelli... did he fail to anticipate the consequences of this nomination? You had nothing to lose by provoking a confirmation fight by nominating a conservative. If the Democrats folded, you'd get a good judge on the High Court, and you'd look politically unstoppable. If the Democrats fought, you'd get another chance to paint them as obstructionsts blocking the will of the majority, and you'd vastly increase the chance of picking off vulnerable Democrats in North Dakota and Nebraska, and possibly West Virginia as well. I'm sure you're well aware that these Democrats are likely to skate to reelection thanks to stunning recruiting failures, here was your chance to mitigate the damage and you blew it. And best of all, if the Democrats insisted on filibustering your nominee unto death, then you could withdraw him and nominate Miers. Nothing lost.

On the other hand, nominating Miers is a boneheaded move strategically, because it forestalls any prospect of getting one of our conservative superstars for the next nomination. How? Well, when the Democrats filibustered Bush's nominees, they were effectively called obstructionists, and paid a price for it at the polls. Nominating Miers, a nominee that Democrats can support, destroys that tactic. They can obstruct the next nominee without fear, and if anybody calls them obstructionists, here's their counter:

"We're not obstructionists! After all, we let through Roberts and Miers, didn't we? We recognize that nominating Justices is the President's prerogative, and we're happy to consent to their confirmation... even if they've never been judges, they're cronies of the President, and their qualifications are highly questionable. But this new guy is just so far out of the mainstream, that we cannot in good conscience give him a lifetime appointment to the highest court in the land, where he will inflict his extreme views on Americans for generations..."

And so on, and so on. George W. Bush has just pulled the fangs of the "obstructionist" charge and given the Democrats a license to filibuster with impunity. Great strategery there, Mr. President.

The President needs to prove that Miers is among the best of the best possible nominees. He hasn't yet come close. And I for one am wondering what's the point of busting my butt to get a Republican President and 55 Republican Senators if we're not going to get what we most desperately need. And I know I'm not alone.

October 9, 2005 in Current Affairs | Permalink


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Nice counter...best I have seen yet! MM

Posted by: Major Mike | Oct 10, 2005 8:22:30 AM

Not to sound like a fanboy, but brilliant as always.

I believe you missed two other points.

First, appointing your lawyer for nomination to SCOTUS while under fire for cronyism is a gift to the Democrats and reflects poorly on all Republicans.

Second, every conservative lawyer or judge in the land with aspirations to SCOTUS has just learned the valuable lesson, "Don't take a stand. Don't do the right thing. Stay noncontroversial or you'll be skipped in favor of a friend."

No matter how good she turns out, I will always be disgusted with him for this.

Posted by: odietamo | Oct 18, 2005 9:06:24 PM

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