Strategic Withdrawl

The pundits predicted this one. Miers withdrew her nomination this morning, with Bush stating that the principle of executive privilege was the problem. Well, that and the fact that there isn't much of a record of Harriet Miers ever doing anything relevant, outside of those privileged White House documents. I'm guessing that the next nominee will be thoroughly vetted, and really, really not cool with abortion.

What a Difference a Poll Makes

I’ve been fascinated and embarrassingly sidetracked by the media’s recent change in tone. I think the slide for the administration’s public image began when Kanye West’s unscripted exclamation during an NBC fundraiser that “George Bush doesn't care about black people!” Next came the string of angry editorials and opinions from conservatives over Bush’s nomination of Miers, while most Democrats preferred to note, without any hint of embarrassment, that they had no opinion on her because they hadn’t thought to research her as a likely pick. Add in a sprinkling of reports over alleged Republican ethical questions, and you have a press that smells a story.

The truth is that the press always writes its stories in the context of polls, and as much as politicians try to dismiss them, they tend to collectively reflect the public’s mood. The dam gave way on Wednesday night, when NBC Nightly News (with Tom Brokaw’s imitator) led the newscast with a story covering the flagging Miers nomination, followed by Tim Russert summarizing a dismal poll for the administration. While all of the major indicators were down, the most striking feature was when Russert explained that “only 2 percent -- 2 percent! -- of African-Americans approve of George Bush's handling of the presidency -- the lowest we have ever seen in that particular measure.” Wow. Even given some serious misgivings about the accuracy of that particular number, it’s been well known the Bush has never enjoyed strong support with African Americans, but with all of the administration's poll numbers lower, the little problems are starting to add up, at least on TV.

I think that the release of this recent NBC News/WSJ poll was the crest of coverage. It's been followed by a wave of negative stories in all mediums. Criticism of President Bush has been growing louder from many corners of the blogsophere, but now the general public is getting a bigger dose. Friday, stories in the papers and on television openly reported on the White House’s tight scripting of Bush’s teleconference with members of the U.S. military in Iraq. Try crying bias when the Associated Press mocks the event as a "conversation," noting that all participants were coached. As much as politicians claim that they don't attention to polls, they play a vital role in framing reporters' perception of the day's political events, as we discover every election year. Dan Froomkin also pointed to second reason why mainstream coverage became more critical - evidence of the administration's lack of candor that could be shown on television. Take it away, Dan:

White House spokesman Scott McClellan repeatedly insisted that the troops participating in a videoconference from Iraq with President Bush yesterday morning hadn't been coached. But the satellite feed of painstaking rehearsals led by a senior Pentagon official said otherwise. And as a result, television journalists for once had a field day exposing the sleight of hand to which they are more often accessories.

The event, along with the strugglin Miers nomination, lead to an astoundingly contentious press briefing at the White House, with Scott McClellan snapping at John Roberts (of CBS), and the press in general. Between a clear indication of dissatisfaction from the American public, and a new attitude of scrutiny from American media, look for the news to get more and more entertaining, though not at all more encouraging.

The Lazy Man's Post

I apologize for falling asleep at the (virtual) wheel. Law school has taken a bite out of my posting regimen. So let me just point loyal readers to two interesting tidbits that I found today.

First, Jacob Weisberg has a biting, insightful view on the state of politics today, in which he notes that this democracy's need for discussion and reform has been completely overtaken by a circle of celebrity and vanity.

Speaking of politics and vanity, there was also an interesting appearance by President Bush on NBC's Today Show. Much to my surprise, Matt Lauer asked the president, who was amusingly equipped with a toolbelt for workin' on a new home in New Orleans, real questions. The president got a little annoyed at this development. Where's Katie Couric when you need her?

Let the (Bush) Circle Be Unbroken?

Rather than review the intricacies of subject matter jurisdiction, I’ve been thinking about Bush’s nomination of Harriet Miers. As noted in today’s Washington Post, this is a president famous for cultivating, and then tapping, his personal network for purposes of governance. It’s pretty much undisputed that Bush is the reigning poster child for either loyalty (if you like Bush) or nepotism (if you don’t). For the purposes of semi-neutrality, let’s just refer to it as networking.

But what of networking? Is it compatible with the ideals of representative government? Does anybody else feel like the entire country is now run by Texans? In Bush’s defense, I came up with several advantages to the networking for cabinet level posts. Any subsequent thought, however, revealed that these networking advantages did not expand to a Supreme Court nominee, and were instead wrong, bad, and possibly smelly.

Search Costs

Networking does afford savings in search costs. If you already know somebody who is qualified, and have worked with them personally, then why go through the process of an arduous, expensive search? In this case, though, nobody seems to think that Miers has the qualifications of an impressive nominee (save Bush himself). In addition, there already was an expensive search process (headed by Miers herself) anyhow. Bush had years to come up with his short list, and and his adminitration surely spent amazing amount of time coming up with names. So Bush gets no savings here.

Trust

Working personally with somebody builds trust. The problem is, though, the fact that Bush trusts his nominee does not mean that Americans, whom the justice ostensibly serves, trust him/her. Unlike other nominees, such as those to cabinet level posts, Bush needs to prove that a justice can be trusted to adjudicate disputes fundamental to our freedoms and rights. Cabinet posts, even most Senators agree, require less of a pedigree not only because they aren’t appointed for life, but also because their primary function under Bush has been reduced to appearing on the Sunday talk shows. Here, Miers having the president's trust is the bare minimum of a standard. Ideally, she should have the trust of the legal community, if not our representatives and/or people. Here, Bush's trust doesn't convey anything meaningful as far whether Miers will be an effective and/or fair justice.

Quid Pro Quo

With many cabinet level posts, choosing team players makes perfect sense. Members of the cabinet are intended to work under Bush, advocating his agenda and adding their own views (in theory). Choosing a nominee who will loyally serve your agenda is efficient for the administration, cutting down on infighting, leaks, and uncertainty. In return for a plum post and access to power, officials in the Bush administration have been happy to comply with these demands. Of course, all of this comes at the cost of Bush’s famous insulation “bubble,” but at least there is an efficiency argument. But with a Supreme Court nominee, quid pro quo is unseemly – it expressly undermines the fundamental premise of the separation of powers. All Americans should find any implication of quid pro quo, and any attempt by the president to unduly influence or tarnish the court in order to get his way should be roundly rejected. The Supreme Court has acted as one of the few checks on executive power in the last few years. Yet despite the executive branch’s almost unfettered power, Americans don’t seem to be any safer, happier, or more prosperous.

So much for the networking efficiency theory. This is one area of government where not only do network effects lack punch, they can be downright offensive. The judicial branch has always been intended to be the least democratic branch of government, and I have never subscribed to the theory that judges should always reflect the attitudes of the public. By the same token, though, judges should not simply reflect the personal views of Bush and his inner circle. I'm sure that she's a very nice person, and has been a great personal attorney to Bush, but Miers is a dud of a nominee.

Miers with an “i." Whee. . .

Among the many developments today was that Bush named Harriet Miers as his second nominee to the Supreme Court. It's too bad, though, that while his nominee has provoked controversy, the nomination process will be a snooze.

I don’t see how there was a way around controversy on this one. Every politician in America has been itching for a fight, so it was just a matter of why he/she should be outraged. This time, it’s Bush’s faithful base that seems to be upset with the pick. They may very well have good cause. Miers’s primary qualification seems to be that she’s a Bush loyalist. While historians and scholars have rightly pointed out that plenty of other qualified Supreme Court Justices were confirmed without an previous experience on the bench, it still seems clear that, especially when compared to John Roberts, Miers is not heavyweight. Whether or not people are angry, Miers will sail through, and the hearings will be boring.

Bluntly, I can’t find anybody, other than President Bush himself, who has declared that Miers is the most qualified candidate for the job. Perhaps technical qualifications shouldn’t be our only measurement – surely the feasibility of confirmation plays a role, too. John Roberts got high marks on both fronts. Miers’s record seems slim enough (and probably well vetted, too), that there won’t be much fodder for liberal attacks. But people of all persuasions have a right to be disappointed. Bush proved to his “moral values” voters that principles of personal loyalty trump campaign promises and/or religious principles (liberals should be thankful for that). Liberals are disappointed that they got all worked up for a cultural fight just to find that they’re back to trying to play rope-a-dope with an unknown nominee.

Overall, this nomination just doesn’t feel historic. Yep, she’s a woman. But Miers’s professional career, while successful, has almost always involved representing private clients. What are her views? How has her legal thought developed? Who will she represent when on the bench? Americans at large? Traditional values? President Bush’s views? Nobody knows, but I’m guessing that it’s number three. Miers will be confirmed, and intellectuals will have to go back to the morbid business of waiting for another legal mind to kick the bucket, hoping that the next nominee will have some bite.