This is Newt Gingrich’s attempt to persuade reluctant (and angry) conservatives to give support to Bush and Miers. R.J. Pestritto is not persuaded and uses Alexander Hamilton’s warning against the nomination of candidates "who had no other merit than that of coming from the same State to which [the president] particularly belonged, or of being in some way or other personally allied to him," to make his point. Pestritto:

"The point here, of course, is not that the president should be prevented from nominating his allies or associates, but rather that one’s friendship with the president should not be the primary qualification one has for office. Yes, Hamilton and Marshall were close allies of the men who nominated them, but independent of this they also happened to be supremely qualified for the posts to which they were appointed, as everybody at the time recognized. By contrast, this is exactly where the Miers appointment runs into trouble: If one omits the jobs that were given to her by President Bush—the jobs that allowed her to be named to lists of the most powerful lawyers in the country—all you have left is a corporate attorney who has shown an ability for administration, both in her firm and in bar associations. Although admirable, these, without any evidence of a developed and clear understanding of the Constitution, are not the qualifications of a Supreme Court justice. Or, to put it more bluntly, the substantial weight of the evidence of her capacity to be a justice—that is, the key government positions she has held—are all the fruits of her continuing relationship with the president. If this doesn’t raise serious questions about cronyism, I’m not sure what does."

And his concluding paragraph:

"Miers may turn out to be a perfectly fine justice, but there is nothing in her record which would give us any basis to believe that. Ironically, by attempting to avoid the pitfalls of modern senatorial "advice and consent," President Bush has triggered more stringent scrutiny under the framers’ understanding of that term as a check against the nomination of home-state cronies who lack the objective qualifications for the office. The Senate should therefore diligently exercise its check of advice and consent—not in the modern sense as a litmus test concerning ideology, but as the framers intended: to assure that her qualifications extend beyond mere friendship with the president."

According to this Washington Post story, Democratic intellectuals William Galston and Elaine Kamarck have issued a report warning their party that moving to the left would be a disastrous electoral strategy.

The groups that were supposed to constitute the new Democratic majority in 2004 simply failed to materialize in sufficient number to overcome the right-center coalition of the Republican Party.

They note that GOP support is rising among hispanics, a group whom liberals had been counting on. Moreover, they claim that issues like health care and education, traditionally key cards for Democrats to play, have lost their power to win large numbers of votes. Finally:

Charles Krauthammer and Michelle Malkin are unhappy. Sam Brownback is noncommittal, unable as yet to muster any enthusiasm. Chuck Shumer is enjoying the spectacle:

"John Roberts only had to worry about, you know, the left," he said, referring to the recently confirmed chief justice. "She’s going to have to worry about the left and the right."

E. J. Dionne, Jr. is in high dudgeon, upset that the Bush Administration has made an issue of Miers’s evangelicalism but refused to let the Left make an issue of Roberts’s Catholicism. Hypocrisy, he says. That would be the pot calling the kettle black, as, by his lights, the Administration is taking his advice. Of course, Dionne is interested in religion because he assumes that it will influence a judge’s rulings. I have disagreed with this position before, as have people much smarter than I am.

That said, the Bush Administration is taking a risk in calling attention to Miers’s church life, however much it indicates about her heart (which is what the Democrats said they wanted to know about Roberts). With nuances getting lost in the noise, it may serve to reinforce expectations on the Left and educate expectations among evangelicals that one’s faith does and should influence one’s Constitutional doctrine. Smart evangelicals have carefully avoided this implication thus far; I’d hate for the Bush Administration to undo the good work they’ve done as they rally the troops for this confirmation battle.

Congratulations to this month’s winners of a No Left Turns mug! The winners are as follows:

Kevin Portteus
Willie Martin, Jr.
Steven Schmitt
Denise Parrish
Sharon Hilton-Gage

I was shocked, just shocked, to learn that conservatives are unhappy. As a result, there is, of course, a certain Schadenfreude on the part of folks on the Left:

On Wednesday, however, the Democrats mostly stood back as conservatives took aim at the selection of Ms. Miers.

Conservatives should remember that anything they say can and will be used against Miers in the Senate Judiciary Committee.

The quote of the day belongs to John Thune:

Senator John Thune, Republican of South Dakota, said he, too, was nervous about Ms. Miers but also about a fight within his party. "I don’t think that an intraparty battle is what we need," he said. "But I think before too long the left is going to go off on her, and that will effectively bring everybody together."

Will I ever write about anything else again?

Citing, among other things, this op-ed and having this NYT article in the back of his mind, Ken Masugi reminds us of the unavoidably political dimension of the fight to restore a constitutional judiciary.

Yes, I think that this fight could have been waged with another nominee sitting across from the Senate Judiciary Committee, but that is not going to happen. Bush will not withdraw his nomination. What makes anyone--save for those on the Left--think that the defeat of Miers will produce a jurisprudentially more congenial replacement nominee? Consider this: if the Miers nomination timetable follows the conventional schedule, the Senate Judiciary Committee would likely vote in early December, with a Senate vote following in mid-December. If the nomination fails, the pressure on the President to name a filibuster-proof "consensus" nominee comes into play. After all, once we get into the new year, the impending fall elections start dominating the political scene. And if the Democrats think they can regain control of the Senate from a weakened Republican Party, they will likely do all they can to slow the process down. We could end up with a nominee the Post and the Times (not to mention the Harvard and Yale law faculties) will welcome as a "moderate."

Obviously, as well, should Republicans lose control of the Senate, the prospect for future attractive judicial nominees virtually disappears.

I bring to your attention a revealing comment from a reader (Brad Preston) on the Miers nomination. You can sense the frustration, and see the hope slipping away. Bush had better be right about her, and it would be in everyone’s interest if she revealed something of her virtues at the hearings (also see Knippenberg, just below):

Many of us find ourselves wishing that the President had nominated someone other than Harriet Miers. But she’s the nominee we have. What next?

Suppose, in the first place, that the combination of conservative discontent and (gleeful) liberal opposition is sufficient to defeat this nominee. Does this weaken or strengthen the President’s hand with the next nomination? If it weakens his hand (as I think it will), those looking for a judge faithful to original intent are even worse off in the next round.

Suppose, secondly, that Miers is confirmed, but raked over the coals in the process. This, it seems to me, emboldens the Left in its opposition to Bush’s future Appeals Court and Supreme Court nominees, and places the President on the defensive as he makes his nominations. This also is not an encouraging prospect.

Finally, there is the possibility, however remote, that Miers will exceed expectations in the hearings. I have no doubt but that, in the proverbial fair fight, Miers could hold her own, one on one, with almost anyone on the Senate Judiciary Committee (not a terribly high bar, to be sure). But if conservatives sit on their hands, the fight won’t be fair. One can only hope that Miers is a quick study and that she has (and is open to) the same kinds of teachers and advisors that Clarence Thomas had as he prepared for his judicial career.

For what it’s worth, I think at the moment that the second scenario is most likely. Everything then would depend upon how the Left decides to oppose this nomination. They could put the Bush Administration on trial, question Miers’s competence and credentials, or make an issue of her conservative evangelicalism. The third is probably a winner for the Bush Administration, or at least a loser for the Left; the first is a storm they could probably weather; the second represents the toughest challenge. My guess is that we’ll see all three tacks.

George Will is near vicious in his criticism of Bush, and the Miers nomination. Note this: "In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech." And this:

"It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court’s role. Otherwise the sound principle of substantial deference to a president’s choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends."

If I was losing patience yesterday with what seemed to me to be ducking a fight, today I am losing patience with Conservative elites--including some of my dear friends here--who seem to be too quick to point out Ms. Miers’ lack of "credentials." A caller on Hugh Hewitt’s show today and a graduate of the University of Dayton’s law school, pointed out that all of this whining about her degree from a small law school in Texas is starting to sound to him like Conservative elitism. I agree. Since when do big name law degrees hold sway with us? We don’t know this woman’s mind. Bush says he does. He ought not to be held accountable for the sins of his father. I will be amazed if this woman is a Souter. Peter’s point that we don’t know anything about this woman other than that she is not Alice Batchelder, Mike McConnell, or Edith Jones, is exactly right. So we didn’t get way. Boo, hoo. If you want your way in judicial appointments, stick your neck out and run for President.

We didn’t have to wait all too terribly long before someone made an issue of Miers’s putative religious convictions. Jeremy Richey calls our attention to this post by Paul Butler, a law professor at George Washington University.

The estimable Mr. Hayward, whose book is available on Amazon, and I have mentioned Harriet Miers’s religious affiliation. Over at Get Religion, Terry Mattingly has the goods, calling our attention to these articles and this helpful blog post.

I was at first perplexed by the Miers nomination. Then, the more I listened to the MSM and conservatives commenting, even on NLT), the more angry I became, becoming persuaded that this was a very bad move on Dubya’s part. I wrote a peevish paragraph on it, re-read it an hour later, but realized that my anger didn’t mean anything. I didn’t know why I was angry at Bush. Do I care that this person has no judicial experience? Of course not. I think it would be fine to appoint non-lawyers to the Court. Does anyone think that Walter Berns, for example, would be a bad appointment? Is it a problem that she works for Bush and he has known her for years and he likes her and trusts her? Of course not. So what’s the problem? Well, I just happen to know Alice Batchelder better, and I have heard from friends who know McConnell that he is really great. Well, Bush disagrees with me and my friends. O.K., we don’t know anything about her jurisprudence. How could we? Well, let’s give her the opportunity of explaining herself to the Judiciary Committee. Perhaps the conservative members of the Committee (e.g., Brownback and Coburn) can press her a bit and ask her to make her jurisprudence clear. Perhaps she can do it as well as Roberts did. Was Roberts’ testimony entirely satisfying? Bush has asked us to take this nomination on faith. So we should, for now. Then let her reason in front of the Judiciary Committee support both our faith and Bush’s.

My newest book, Greatness: Reagan, Churchill and the Making og Extraordinary Leaders goes on sale today at fine bookstores everywhere.

I missed this in the Post this morning.On the other hand, Randy Barnett has written a draft of the speech that more than a few folks on the Left and the Right might be tempted to give. Alexander Hamilton is invoked by both sides.