From Slate’s Mickey Kaus

The fatal, non-snobby objection to Miers: Randy Barnett points out that the “cronyism” worry isn’t just a worry about an unqualified nominee, or a theoretical worry about the “separation of powers.” There’s a concrete concern about her ability to rule against the interests of the man and family to whom she’s been so loyal (and to whom she will owe her spectacular elevation)**:

Cronyism is bad not only because it leads to less qualified judges, but also because we want a judiciary with independence from the executive branch. A longtime friend of the president who has served as his close personal and political adviser and confidante, no matter how fine a lawyer, can hardly be expected to be sufficiently independent–especially during the remaining term of her former boss.

Also, he might have added, in the possible future terms of other Bush dynasty members (i.e. Jeb). The Bushes do their business by calling on personal loyalties. It’s a legitimate question to ask whether they are (if only subconsciously!) trying to extend this modus operandi into the judicial branch. It all seems a bit Latin American, no? Harriet Miers could be the most qualified judge in the nation–and a breath of fresh air to boot–and cronyism would still be a potentially disqualifying factor. There are some moves Presidents who gain office on 5-4 Supreme Court votes can’t make. …

Update: President Bush, and some media reports, may have gone a long way toward dispelling worries about Souterism on the right. But not worries about cronyism! And they span the spectrum. … Indeed, Bush’s defense against the Souterism charge–“I know her well enough to be able to say that she’s not going to change”–only reinforces the cronyism charge. He’s putting his personal legal consigliere on the Supreme Court. If she’s going to show any independence, she’s going to have to change, no? … P.S.: As Maguire notes, Miers might still prove highly popular in opinion polls. She’s an appealing figure. I’m talking about what should disqualify her–not necessarily what will. …

**: And whom she apparently admires disproportionately. Here’s David Frum:

In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met.

From Andrew Sullivan’s blog

“Conservatives, I thought, were supposed to believe ideas have consequences, that American institutions – chief among them the Supreme Court and the Constitution – have specific and organic roles to play in the culture which depend on intellectual honesty, opposition to cant, and a dispassionate rejection of the politicization of the law. The reliable vote argument — absent other rationales — runs counter to all of these. This becomes obvious when you imagine a Democratic President appointing a confidante with few obvious credentials for the Supreme Court. A president Kerry could hardly convince any of us that his pick should be confirmed because she’s a reliable vote.” – Jonah Goldberg, NRO

Sullivan is gay, so he’s worried about gay rights …

Here’s an interesting story. Back in 1989, Harriet Miers gave answers to a questionnaire on gay rights when she was running for the Dallas city council. She didn’t favor repeal of anti-sodomy laws, but she did say yes to the question:
“Do you believe that gay men and lesbians should have the same civil rights as non-gay men and women?”
She was noncommittal on several other questions, saying, for example, that she would be willing to discuss the need for a law prohibiting discrimination in housing or public accommodations against people who had AIDS or were HIV-positive.
Asked whether qualified candidates should be denied city employment because they are gay or lesbian, she said, “I believe that employers should be able to pick the best qualified person for any position to be filled considering all relevant factors.”
I’m not sure what to make of this, except to say that this was 1989, and that her refusal to endorse discrimination against gays and lesbians on those grounds alone speaks well of her. (Hey, this was Texas in 1989.) Her view that people could be arrested for private consensual sex, however, was and is alarming. But a whole lot of people have changed their minds on that in the last decade or so. Maybe Miers is one of them. I think it’s a fair question to ask of her at the Senate hearings: “Do you believe that gay men and lesbians should have the same civil rights as non-gay men and women?” And: “What do you understand by the term ‘civil rights’?”

More from Andrew Sullivan

“Just talked to a very pro-Bush legal type who says he is ashamed and embarrassed this morning. Says Miers was with an undistinguished law firm; never practiced constitutional law; never argued any big cases; never was on law review; has never written on any of the important legal issues. Says she’s not even second rate, but is third rate. Dozens and dozens of women would have been better qualified. Says a crony at FEMA is one thing, but on the high court is something else entirely. Her long history of activity with ABA is not encouraging from a conservative perspective – few conservatives would spend their time that way. In short, he says the pick is ‘deplorable.'”

– Rich Lowry, NRO.

It seems to me at this stage that Miers might well be a quiet, decent judicial restraint conservative on the court. I’m still open to supporting her nomination. But a more fundamental issue is simply her intellectual and legal caliber. This is SCOTUS. After Roberts, we have gone from a clear A grade to a C +. It seems to me her nomination would be most successfully defeated merely by insisting that the court gets someone qualified in the most basic meaning of the term.

THE BEST SPIN YET: “It’s not as bad as Caligula putting his horse in the Senate.” – Richard Brookhiser, NRO.

One more thought. Bush is a deeply arrogant and insecure person (the qualities go together), a man who refuses to cower in the face of criticism. This can be a good thing, as in his tenacity in the war on terror. But it is also a hubristic flaw – evident as early as “Mission Accomplished” – which has only been reinforced by his re-election. The one thing that could motivate him to appoint a crony as obviously unqualified as Miers is precisely to stick a finger in the eye of those accusing him of cronyism. Tell him we need more troops in Iraq? It’s the one thing he won’t do. Tell him he’s a big spender? We get: “It’s going to cost whatever it costs.” Tell him he has botched the Iraq occupation? He’ll give the architects Medals of Freedom. There’s an adolescent streak of pure willfulness in the man. He cannot and will not self-correct. If pushed into a corner, he will simply repeat the error in order to prove himself immune to criticism. We had one chance to correct this – the only one he understands. And he got away with re-election after four years of spectacular, unconservative incompetence. I’m afraid I have limited sympathy for those complaining conservatives who were silent when it mattered, and are now living with the consequences.

From Another Blog

There were complaints of cronyism and questions about Ms. Miers experience by both sides. According to the L.A. Times, conservatives were particularly harsh in their comments. One example:

Manuel Miranda, a conservative lobbyist active in promoting Bush’s judicial nominees, argued that “the president has made possibly the most unqualified choice since Abe Fortas.”

From George Will

Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption — perhaps rebuttable but certainly in need of rebutting — should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court’s tasks. The president’s “argument” for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their prepresidential careers, and this president, particularly, is not disposed to such reflections.

Furthermore, there is no reason to believe that Miers’ nomination resulted from the president’s careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers’ name probably would not have appeared in any of the 10,000 places on those lists.