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Wednesday, October 26, 2005

Miers Should Withdraw

Ed Whelan of the Ethics and Public Policy Center is an extremely thoughtful person who presumes President Bush not only has the clear constitutional responsibility to nominate whomever he judges best qualified for the U.S. Supreme Court, but also that the chief executive ought to have the benefit of the doubt unless there are extremely persuasive reasons to the contrary and that in fact Bush has a long record of excellent choices for federal appeals and district court nominees.

After first supporting Bush in his nomination of Harriet Miers, however, Whelan has now concluded that the evidence is simply too great that Miers is not sufficiently qualified to serve on the nation's highest court. Whelan's Exhibit A is a 1993 speech Miers gave to a Dallas professional women's organization. You can read Whelan's NRO analysis here and the 1993 speech here.

Similarly, Powerline's Paul Mirengoff is among the most thoughtful and cautious (in the very most positive sense of the word) lawyers I know. He, too, has concluded Miers should withdraw because:

"I've found the time to read Miers' speech carefully. This is not the speech of a centrist (the worst case plausible scenario, I thought); it's the speech of a liberal. The behavior of liberal Senate Democrats over recent years relieves conservative Republican Senators of any obligation to vote for the confirmation of nominees who take positions like the ones Miers sets forth in this speech (e.g., 'abortion clinic protesters have become synonymous with terrorists' or, in the context of the abortion debate, 'where science cannot determine the facts and decisions vary based upon religious belief, then government should not act')."

When reasonable men like Whelan and Mirengoff conclude a nomination should be withdrawn, I have to conclude there is no longer defendable grounds upon which to continue advancing the cause. Therefore, I oppose the Miers nomination.

I've purposely kept silent on the issue since my initial observation that weak Senate GOP leadership leaves Bush only two choices. a perfect nominee (Roberts) or an untrackable nominee (Miers).

Now I realize the second choice is actually illusory because the absence of a concrete record in previous decisions as a judge or in published articles makes it inevitable that other material like speeches, media interviews and correspondence will become the governing evidence. Bush put himself on what could only become a fool's errand when he nominated Miers, whatever the reason in his heart that led to the decision.

For these reasons, I see no alternative to the conclusion that the Miers nomination should be withdrawn. Let us all now pray for a wiser second choice because the nation needs it.

UPDATE: 10/27/05

Democracy Project's Bruce Kesler remains steadfast in support of Miers and explains why in this column from the always-interesting Augusta Free Press. Kesler's basic point is this:

"Ms. Miers, indeed, brings something to the court it is sadly lacking, successful practical experience in local and federal governance that Americans should welcome as a breath of common sense. Our Founders were mostly not lawyers, but men of practical experience in governance."

UPDATE: 8:27 a.m.

Ed Morrissey notes the unexpected departure from the White House Miers lobbying effort of Federalist Society Executive Vice President Leonard Leo: "Leo had been held as a standard around which movement conservatives could rally their trust and enthusiasm. That standard appears to have dissipated, leaving the White House with no political cover at all on their right."

As always, Morrissey gets right to the essential point. Read it all here.

UPDATE: 9:35 a.m.

Miers has withdrawn.