by hilzoy
John Fund explains how Karl Rove made sure that religious conservatives knew more about Harriet Miers than the rest of us were supposed to:
“On Oct. 3, the day the Miers nomination was announced, Mr. Dobson and other religious conservatives held a conference call to discuss the nomination. One of the people on the call took extensive notes, which I have obtained. According to the notes, two of Ms. Miers’s close friends — both sitting judges — said during the call that she would vote to overturn Roe. (…)
Mr. Dobson says he was surprised the next day to learn that Justice Hecht and Judge Kinkeade were joining the Arlington Group call. He was asked to introduce the two of them, which he considered awkward given that he had never spoken with Justice Hecht and only once to Judge Kinkeade. According to the notes of the call, Mr. Dobson introduced them by saying, “Karl Rove suggested that we talk with these gentlemen because they can confirm specific reasons why Harriet Miers might be a better candidate than some of us think.”
What followed, according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, “Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?”
“Absolutely,” said Judge Kinkeade.
“I agree with that,” said Justice Hecht. “I concur.” “
How curious that no one saw fit to share this conference call with (a) the rest of the citizenry or (b) the Senate Judiciary Committee. I, for instance, would have asked these two friends of Harriet Miers why they feel so confident about how she would vote on Roe, and on what basis they thought that she would vote to overturn it. Offhand, the obvious possibilities would seem to be: (1) Ms. Miers has a well-developed judicial philosophy, the two judges have discussed this philosophy with her, and they know that, in her view, it would entail voting to overturn Roe. Since none of the rest of us know what her judicial philosophy is, it would be interesting to hear about this. (2) The two judges are simply assuming that she would vote to overturn Roe because they know that she dislikes Roe. In this case, their confidence would have to reflect confidence that Ms. Miers will engage in ‘results-driven jurisprudence’, aka judicial activism. This would also be important to know.
I am not alone in thinking that this call deserved a wider audience:
“Some participants in the Oct. 3 conference call fear that they will be called to testify at Ms. Miers’s hearings. “If the call is as you describe it, an effort will be made to subpoena everyone on it,” a Judiciary Committee staffer told me. It is possible that a tape or notes of the call are already in the hands of committee staffers. “Some people were on speaker phones allowing other people to listen in, and others could have been on extensions,” one participant told me.
Should hearings begin on Nov. 7 as is now tentatively planned, they would likely turn into a spectacle. Mr. Specter has said he plans to press Ms. Miers “very hard” on whether Roe v. Wade is settled law. “She will have hearings like no nominee has ever had to sit through,” Chuck Todd, editor of the political tip sheet Hotline, told radio host John Batchelor. “One slipup on camera and she is toast.”
Should she survive the hearings, liberal groups may demand that Democrats filibuster her. Republican senators, already hesitant to back Ms. Miers after heavy blowback from their conservative base, would likely lack the will to trigger the so-called nuclear option. “The nomination is in real trouble,” one GOP senator told me. “Not one senator wants to go through the agony of those hearings, even those who want to vote for her.” Even if Ms. Miers avoids a filibuster, it’s possible Democrats would join with dissident Republicans to defeat her outright.”
Good. I do not have a problem with nominating people who don’t have an extensive paper trail. For all I know, the world might be full of people without paper trails who would make wonderful Supreme Court justices. I do have a problem with attempting to conceal a nominee’s views from the Senate, whose role is to advise and consent, while making those views known in secret to a select group of influential supporters. That’s an attempt to subvert the constitutionally mandated process for confirming Supreme Court nominees, and it should not be tolerated.
[Update: as Anderson notes, I should have said that the Senate’s role is to offer its advice, and (if it thinks it’s warranted) to vote to confirm the nominee.]
none dare call it a Litmus Test
Entirely agreed, Hilzoy, but I don’t think you really meant that the Senate’s “role is to advise and consent.”
We know what you mean, but beware your post’s being quoted as “even the arch-liberal Hilzoy believes that the Senate is obliged to consent to Dear Leader’s choices!”
I think you’re exaggerating here, or at least jumping the gun. Regarding the administration “concealing information”, the information in question is coming not from the administration but from Hecht and Kinkeade. (And you should add a possibility #3 for their statements: that they were just saying what they figured their audience wanted to hear). It’s of course entirely possible that Bush has talked to her about Roe as well, but that’s not the subject of this article.
Re “subverting the constitution”, I don’t see that at all — Congress will have a chance to question Miers to their hearts’ content, and if they’re not satisfied with the answers they get, they can vote her down.
Finally, I think you may be too quick to assume that she’s an anti-Roe stealth bomb — seems to me there’s still some non-zero probability that it’s the right wing that’s getting snookered.
kenB: the gun-jumping part came from the following thoughts: Rove recommended these two as people religious conservatives should talk to to get reassurance about Miers. He also seems to have had something to do with getting them on the phone call, to judge by the story. It seems to me unlikely that he (being, after all Karl Rove, famous for attention to detail) would have done this w/o knowing what they actually thought about Miers, and in particular about the answer to the sorts of questions religious conservatives would ask, most obviously the question: what will she do about Roe?
As I read it, Rove is sending people to these two for reassurance that Miers will vote to overturn Roe. What he tells his base, he should also tell Arlen Specter.
none dare call it a Litmus Test
How bout an acid test for the conservative base then?
I don’t doubt that the Bush administration has a strong sense of where Miers would come down on a Roe vote (wherever that might be), but I still don’t see this particular case as “concealing information”, more like “tailoring the message”, which is a perfectly mundane political activity (and of course a vitally important one for Bush in this affair).
There are a lot of different voices out there who claim to some knowledge of Miers, and their predictions about what kind of judge she would make are all over the map. Why should we assume that these two guys have the direct line to her mind? I’ve no doubt that Rove knew what these guys would say to the fundamentalist crowd, but does he know that they’re right?
kenB: one of them (Hecht) is the guy she was allegedly dating for ages (it was about their relationship that her pastor said: “Their relationship has been such a special one. Sometimes I think they wanted to protect how special it was by not getting married.”)
The justification for judicial refusing to give a straight answer about their views on any contentious issue at confirmation hearings is to avoid any appearance of impropriety, quid pro quo promises to rule a certain way on a certain case, interference with judicial independence, etc.
Well, which appears more improper?
A) listening to a nominee tell us what she thinks in general terms about privacy cases with the caveat that it is NOT a promise or statement of how she will rule on any future case and should under no circumstances be relied on as one? Or,
B) having her ex-boyfriend–himself a Texas Supreme Court justice–secretly call James Dobson at Karl Rove’s request and assure him that she will vote to reverse Roe v. Wade because of her Christian faith?
I mean, really.
kenB:
but I still don’t see this particular case as “concealing information”, more like “tailoring the message”,
Please. They hold a private phone call with the express message “she’ll vote to overturn Roe” from judges who are very close to her, and then turn around and publicly state that they have never talked
with her about those vies and that there is no litmus test on this issue.
That’s called lying.
Under your formulation, to be honest about it, they would openly state that she is for overturning Roe, and let the issue be debated on the merits.
Instead, its yet another round of Bush administration lying to sell its position.
publicly state that they have never talked with her about those views
To be more specific, Bush said that he never asked her about it, and that may technically be true. In any case, it’s all just politics — Bush is navigating between Scylla and Charybdis, and his only option is to try to convince both the extremists and the moderates that they’re getting what they want. To berate him for not giving a clear statement one way or another seems kind of silly — you’re essentially saying “how dare you not commit political suicide!!”
Anyway, I’m not really trying to defend Bush, just wanted to point out that in the end it doesn’t really matter what Bush knows and what he tells, as long as Congress does its job. I don’t see where the administration has any duty to present all the information it “knows” about a person’s opinions, and so phrases like “concealing information” and “subverting the Constitution” are a reach.
As far as Katherine’s point goes, I agree — Congress needn’t show any special deference to the President’s selection and should feel free to vote down a candidate for failing to respond adequately to their questions (and there’s surely some latitude for a candidate to discuss his/her informal opinions about major issues of the day without forcing a recusal down the road). It’s been fun seeing people who used to be pro-deference change their minds on this. Maybe we might actually have a case here where both parties are ready to hold the candidate’s feet to the fire.
KenB, I absolutely agree with you. It’s Congress’s hour now, as the President has been totally unwilling to give anyone reason to trust in his pick. She’s a crap writer, she’s a crony, she has almost no written record on substantive issues, she has little relevant experience, and, judging from recent reports, she’s been evasive during the courtesy rounds.
The President seems willing to dare the Senate to assert its perogative (and, frankly, given the last few years, that’s not as ballsy a dare as it might otherwise seem): but, good lord, if the Senate accepts this blind arranged marriage, it might as well assume the full burka in deference to the executive.
(While I must admit that the insult was intended, I suspect that Thullen and McManus’s prose styles have gotten to me. Sneaky liberals.;)
Oh, and McManus, if you’ve craving for a Lovin’ On Bob site, I think you’d probably have to arrange it yourself. You comment in too many damned places for a lazy stalker to keep up with. So why haven’t you set up a blog, eh? [Begin alluring music] It’s so easy. Just set up a Blogger account, a matter of five minutes, and cut and copy your comments everywhere to a central location. Maybe supply a link, but that’s a condensation to your surely devout readers. Free…Bob…Convenient…You Know You Want To…
Dems should focus on the corruption angle. If they go after her because she will vote to throw out Roe, they may manage to unite the Republicans. If they keep asking questions about the fine that her law firm paid while she was president, they have a great question that she won’t want to answer and they will have cover for voting ‘no’ without making it a Litmus Test.
I completely realize, btw, that it’s hard for the Dems to make a principled argument about the need for transparency & straight answers when they switch to the other argument so quickly when there’s a Democratic president. But, it will be a stupid argument next time the Democrats make it too. And Ginsburg had a damn paper trail at least–significantly longer than Roberts and no comparison to Miers.
“Just set up a Blogger account, a matter of five minutes”
I think I have three blogs out there;I keep losing my passwords. Haven’t commented at Pandagon for a year.
Heck, I nowhere read as much as I should; nor am I as careful in my commenting as I would like to be.
Google me;same name everywhere; there be horrors of early morning indiscipline to be discovered.