Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Monday, October 03, 2005

Biased by Blandishments -- More on Miers per Frum

A propos Frum's comments on Miers, which I mentioned in a prior post and which may be found in full here (and which Todd Zwyicky shares) reflect Frum's concern for Miers' leanings and steadfastness in defending conservative principles.

Acknowledging something like a conservative consensus that Bush "gets the big ones right," he calls this nomination "an unforced error." He argues that any of Michael Luttig, Sam Alito, or Michael McConnell ultimately would have been confirmed, and although I think it might have required deploying the "nuclear option" ultimately he is probably correct. All three have the poise and the credentials to withstand a tough confirmation fight.

From there, however, Frum gets way more tendentious, moving almost toward the paranoid and flirting with the risible:

I worked with Harriet Miers. She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated ... I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or--and more importantly--that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left.

The pressures that constantly bend the American legal system toward the left? Such as? Well, evidently, the "prevailing vapors" in the rarefied air of the Supreme Court, that which drives Justices leftward in their senescence (the story goes), are these:

There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements--the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard--that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is hard for me to imagine that she can endure the anger and abuse--or resist the blandishments--that transformed, say, Anthony Kennedy into the judge he is today.

Would somebody please call Mister Associate Justice Anthony Kennedy and inform him that David Frum believes that the integrity of his jurisprudence has been sundered to the perquisites of power, perqs evidently bestowed only upon those justices who dutifully move to the left upon their arrival at the Court.

Just think of it: Scalia never goes on cushy junkets, lectures overseas, or gets cushy book deals. Or how about the late Chief Justice Rehnquist, by far the most prolific author among the justices with whom he shared the bench?

The truth is that Kennedy remains as conservative in many regards as he was upon his appointment. The problem for the contemporary GOP is that his relatively anodyne and non-invasive conservatism is that of the era in which he was appointed and not the conservatism that has prevailed since an outspoken minority of evangelical moralists hijacked the party of limited government and turned it into the thought police.

I reject Frum's premise that those at the top shift left when it is so obviously the case that in the past twenty years the country has shifted to the right; of course the Court seems more liberal, and there may be isolated changes (on the death penalty, for example -- and I don't have trouble noting that Justice Souter ended up way left of where they thought he was going to be (although I'm not sure that he moved upon his appointment so much as the party just miscalculated)), but that's inevitable when it's set against a different backdrop than it was decades earlier.

Furthermore, Frum's comments reek of the anticonstitutional proposition that should any Justice indulge the security of his own lifetime tenure to act, as the constitution requires, as an independent arbiter of the constitution and check on the other branches of government, he is singularly unfit to be a justice. Of course, what he meant to say is that such a person is unfit to be a party hack who will ensure the prevalence, for decades to come, of the vestiges of an administration whose ideology has been so roundly discredited as unworkable (not all conservatism, just cut-taxes-and-spend-and-fight-wars-on-false-premises-all-while-legislating-people's-sex-lives) that it's a farce.

I'm happy that, to date, there has been enough modest movement among Supreme Court justices with regard to their rulings that we can at least kid ourselves they think independently about how best to do their jobs. And it's appalling to me that any thinking person would reject a nominee for failing to demonstrate the apparently critical qualification of refusing to change his or her views on anything, ever.

I wouldn't want a justice of such limited imagination, whether of liberal or conservative stripe. Indeed, I'd go so far as to say I'd rather see a Chief Justice Roberts than some liberal hack. I may not share his views, but I believe he will vote his conscience. Apparently, that's a bit too much discretion for David Frum.

And so the war on Article III continues.

ALMOST IMMEDIATE UPDATE: Orin Kerr collects evidence from some of the most prominent voices in the conservative blogosphere that suggest Bush's base is abandoning him over his nomination of Miers. Has he finally exhausted conservatives' patience? Could this prove to be his biggest political miscalculation yet?


Anonymous binky said...

I'm not sure why this, of all things, is pissing me off, but I'm disturbed at some of the language from the left and right being deployed against Miers. Hoffmania calls her a "secretary." Frum uses "soften and crumble. Harriet Miers is a taut, nervous, anxious personality" and "She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated." It sounds like he's describing a librarian, not an experienced lawyer (though, not a judge of course). Oh dear, she might faint.

It's appropriate that you talk about the "vapors." It seems that is what Frum think's she'll suffer from.

12:07 PM  
Blogger Moon said...

I see your point, and I've noticed this as well, particularly Frum's vocabulary, but recall my earlier concern that her only strength as a nominee against a Democrat onslaught is that it's a bit too easy for the right to spin any Democrat attack on her credentials as somehow antifeminist when, in fact, it's just an attack on her credentials.

She was Bush's staff secretary. Why is it offensive to refer to her as someone who, until she was appointed Deputy Chief of Staff, actually was in charge of keeping an eye on the paper flowing into the White House? That is a secretarial job -- albeit one of tremendous import that requires considerable intelligence.

As for softening and crumbling, as Frum so indelicately puts it, in context bear in mind he's smearing Justices Kennedy and Souter with the same terms.

Anyway, if people in the administration cared about the way women were perceived they would have picked a woman with more demonstrable credentials such as Brown, Owen, or Clement, and steeled themselves for a fight. They blew this one. Big time.

If women take a hit on this one, it'll be due in the first place to the cynicism of this administration that sought to slide a blatant "diversity pick" past a hostile left and a demanding right, and, it would appear, ended up wedging her between both sides.

12:16 PM  
Anonymous binky said...

Oh, and Frum has edited those comments about "the most brilliant" out of his page.

And I must stop commenting. Back to work!

12:17 PM  
Blogger Scott said...

Nice post. And your point on Kennedy is well taken. Most of the time he's very conservative. It just happens that it's the "movement" cases that get all the press, and he's not reliably (votes 100% as they set wants) that generation of conservative.

Actually, I doubt McConnell and Alito would have required "going nuclear". I think both would have gotten through without that worry - Luttig might have require the bomb though.

12:39 PM  
Blogger Moon said...

I think you're right about Alito, and I deliberately assumed the worst (all three requiring the nuclear option) to hedge against my own uncertainty as to Luttig and McConnel. I couldn't remember which one was worse. :-)

12:51 PM  

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