MY Vast Right Wing Conspiracy

Why Harriet Miers might BE “the best nominee”

• Posted by Beth on October 8th, 2005 filed in General, Politics, SCOTUS    

I know, you’re saying, “WHAT?” Just hear me out. You might think I’m full of it, but believe me, I know I’m not a legal scholar. What I am is an obsessive inquisitive geek for political strategery, and this is theory, not fact. (What else is strategy, anyway?)

I say Harriet Miers might be “the most qualified” right now, for long-term strategy. In a post this morning, I mentioned the John Paul Stevens issue.

Justice John Paul Stevens is 85 years old, but he is said to be healthy (or not?), and hired two new clerks this summer. However, there have been rumors since the late 90’s about him thinking of stepping down.

Nobody is saying (that I’ve heard) right now that he’s going to retire, but the possibility is worth considering, especially when you read more recent rumors about Stevens, for example:

In July, Erick at RedState.org posted this as part of a post reporting the rumor–that was obviously incorrect–about an impending Rehnquist retirement announcement:

Third party sources are now telling me that the John Paul Stevens rumor is true and that the White House is now planning for a third vacancy, but not until the end of the year. Third party sources, who I treat as credible, say that Stevens has begun taking actions in his personal life to make arrangements for personal affairs. It is presumed that Stevens is taking steps to retire. A separate third party source tells me that Ginsberg is not expected to retire, as her health is fine. Stevens has reportedly sent signals that he will retire once replacements for both O’Connor and Rehnquist have been confirmed.

One last bit. I’m told conservatives in Washington are now nervous that with two retirements to fill it will be harder to fill the court at once with multiple conservatives.

Update [2005-7-8 14:42:34 by Erick]: My monkey wrench theory: If O’Connor is gone and Rehnquist is gone, it makes sense for Stevens to go too as it would give the Democrats a much better rallying cry to prevent the President from stocking the Supreme Court with conservatives. Say hello to Justice Gonzales.

Then this, a couple of hours later:

Fourth, I am reliably informed that the John Paul Stevens rumor that all of a sudden got stirred up today is both completely and totally unexpected as of even the first of this week and also accurate. I cannot get my hands around the cause, but several have hinted that Justice Stevens’s health is not good. One said it is believed that Justice Stevens’s health has suddenly begun to deteriorate. The cause is speculation, but this bolt out of the blue does appear to have some substance behind it.

A few days later, Stephen Bainbridge wrote:

I got an email today from a reliable source opining that Justice John Paul Stevens will retire this summer if, but only if, CJ Rehnquist steps down. The theory is that Stevens will be willing to let Bush fill his slot only if there are so many spots available that Bush will feel free and/or pressure to nominate at least one moderate.

OK, so let’s take these things a step further, going with what we know now.

Rehnquist and O’Connor are gone, so Bush has two new Justices–that much is fact. Let’s consider Bush and his advisers might be playing this under the speculation that Stevens may retire, if not soon, then in the next three years. He’ll be 88 years old by the 2008 election, so it’s certainly not out of the realm of possibility.

We have Rehnquist’s replacement in place, a “safe” protege that made most conservatives comfortable and didn’t provoke a huge fight, despite the fact that he is said to be like Rehnquist. If Bush is thinking of three appointments–and there are many who have said this is definitely possible–and the logic is followed as Erick said, he has to pick a “moderate,” or at least someone that will not spook Stevens or the Democrats in the Senate (but most importantly, someone Stevens won’t feel would upset the balance of the Court). Someone either a known moderate, or someone very “stealthy.” How about someone he knows and trusts, that has no paper trail, and specifically a woman or minority? Speculation was rampant about Gonzales, who might have fit that bill if there weren’t so much objection to him from right and left. Clearly, Gonzales was out of the question (I, for one, never thought he’d end up the nominee–it would be political suicide). Harriet Miers’ name wasn’t completely unknown to the “short list;” bloggers were already mentioning her name before the nomination.

We know Bush met with Senator Harry Reid, among others, about his possible nominees. Harry Reid:

I personally think that I would like to see someone who has not had judicial experience. I think that we need somebody to go on that Court in the mold of the people on the Burger court, people who have not spent their lifetime holed up in some office writing opinions and reading briefs. One of the people that’s being talked about is Harriet Miers, his own lawyer. At the meeting we had with the president last week, we were in the office he has there; I was there, Frist was there, Leahy was there, and Specter was there, plus Andy Card and the vice president. I said, “The vice president got here in a very unusual way. He was chosen by you to find a candidate to be your vice president. You liked the person in charge of finding a candidate better than the people he chose.” I said, “I think that rather than rather than looking at the people your lawyer’s recommending, pick her.” … The reason I like her is that she’s the first woman to be president of the very, very large Texas bar association, she was a partner in a law firm, she’s actually tried cases, she was a trial lawyer, and she’s had experience here. I could accept that. And if that fits into the cronyism argument, I will include everybody as a crony, but not her, when I make my case.

Does this mean she’s a moderate? No, not so fast. Miers couldn’t possibly have been the only name tossed up in that meeting, and he could have chosen any moderate with a paper trail or one whom he didn’t know. But he DOES know Miers quite well, but it’s difficult for everyone and their dog to “know” her.

To be sure, Bush and his staff “misunderestimated” the noisy opposition from the right (to be precise, center-right all the way to far right), and apparently assumed he would be “trusted” that she would be the originalist he wanted. (She does know what he was looking for; that is established fact.) And let’s be fair: Bush isn’t known for changing his mind from polling or which way the wind blows, and it would be wholly out of character for him to SAY he’s going to nominate a “strict constructionist,” but DO something completely different. My guess is that he/they assumed that was understood. I don’t even think it’s so much “trust me,” as much as “you know how I am.” You may be frustrated with the Bush Administration, but think: you’re angry about spending, but did he promise not to spend money on the war or disaster relief? You’re angry about immigration, but did he say he was going to implement the plans you wanted? Maybe you’re frustrated about our still being in Iraq, but did he say we would be gone by now? No on all counts, and in fact, the opposite–he has always been very up-front about these things. And of course, there are the things he said he would do, and did, despite the opposition (embryonic stem cell research funding, tax cuts, and most of all, the war). Honestly, how can you blame them for thinking we wouldn’t believe he meant what he said?

OK, back to Stevens. If we go back to the Bainbridge argument, the “requirement,” if you will, would be a nominee that would at least have the appearance of a moderate, if not one in fact. She might be politically moderate, as in personally be for more welfare spending or whatever, or she might be a complete wingnut. But the important thing by Bush’s standards is to have a nominee that respects the Constitution in its original intent. (Do you really think he wants anything else? Look at his other federal judicial picks.) Harriet Miers has the approval of Harry (spit spit) Reid, which might make her less likely to “spook” Justice Stevens. Stevens could then feel comfortable retiring, knowing that another Scalia (that is, with a long, powerful judicial record) isn’t incoming. She is obviously “misunderestimated,” judging from some of the commentary I’ve read over the last several days. “Intellectual lightweight?” Heh. Of course, she’s not an Ivy Leaguer or from academia. She’s “just” a lawyer. No worries, says Justice Stevens. My wife wants me home, I’ll just do it; thirty years is long enough. Or maybe not.

Say hello to Justice Pryor (I wish), or Luttig, or Jones, or Owen, or Estrada, or Rogers Brown or whomever. Maybe in a couple years, maybe sooner. Anyone have the odds on Stevens’ retirement yet?
:wink: