Steve Hayward calls our attention to this excursion through Harriet Miers’s record as a litigator.

One of the highlights is her participation in Jones v. Bush, a 12th Amendment challenge to the results of the 2000 election, based upon the claim that George W. Bush and Dick Cheney were allegedly both inhabitants of Texas. As Beldar notes, Miers’s opposing counsel was the formidable Sanford Levinson, who would make anyone’s short list of distinguished liberal con law types. Here’s Beldar’s summary of the result:

Well, the short answer, friends and neighbors, is that Harriet Miers just flat out kicked the distinguished Prof. Levinson’s butt in court. On just about every issue, too. And she did it not once, not twice, but three times: federal district court, then again on appeal in the Fifth Circuit, and then again in the U.S. Supreme Court — another one of those "cert. denied" notations.

You ask breathlessly: "But is that ’cert. denied’ really a win?" Why yes, friends, it surely is. Because, you see, when you’ve won in the lower courts, then your job as a lawyer is to persuade the Supreme Court not to take the case. Which is exactly what Harriet Miers did here — after first winning so convincingly in the federal district court that the Fifth Circuit, on the way up, didn’t even bother to write an opinion of its own.

There are some who would minimize the significance of this case, arguing that "[t]he Jones case seems pretty straightforward, and it’s hard to draw much of a conclusion about Miers’ legal skills from the opinions that were filed and the decisions that were reached." Others remind us of the stakes and argue that the issues were far from clear. Among them is the aforementioned Professor Levinson, who co-authored a law review article on the subject.

I don’t have time at the moment to evaluate Levinson’s lengthy argument, other than to note that it’s not implausible, suggesting that the case was not a slam-dunk for Miers and Bush. For more, you might consult this article, which suggests a certain inventiveness and lawyerly plasticity on Miers’s part.

In general,Hugh Hewitt’s brief on Miers’s behalf is worth reading.

Update: This article reports Levinson’s comments on the case and on Miers:

Levinson, who described the case as a "law professor’s dream," said that part of what made the case fun for him was that he could argue the case like a Republican, meaning that he and his colleagues based the case on a narrow reading of the Constitution going back to the Framers’ original intent. Miers took the opposite tack, sounding more like a liberal, arguing in her brief to the court for a "broad and inclusive" interpretation of the Constitution based on the belief that the clause makes no sense in today’s world. She simultaneously focused on technicalities -- Cheney had forwarded his mail to Wyoming from his Dallas home and canceled his Texas driver’s license.

Levinson said that to extrapolate from this case that Miers was a closet liberal would be a mistake. "This is a person who has almost no experience doing constitutional law, and the one case she is involved with is on a subject almost no one has talked about, at a time of extraordinary partisan interest," he said. "The only thing to infer from this is that she’s a good lawyer." A federal judge dismissed the case on Dec. 1, 2000, the day it was filed.

Beldar does some impressive digging into Harriet Miers’ actualy legal experience, and suggests there is more there than meets the eye.

ABC News reports that some Senate Democrats are coming to Harriet Miers defense. Powerline notes this and includes this comment from John Hinderaker:

"My guess is that Harkin et al. don’t know anything about Miers except that she is a conservative and a trusted confidante of GWB, which would normally have them frothing at the mouth to keep her off the Court. I suspect that they are saying a few kind words to enjoy the fun of seeing the Republican Party dividing and self-destructing, while, of course, making no commitment as to how they eventually will vote.

"One basic question that I don’t think has gotten enough attention is, why did President Bush nominate Miers in the first place? The answer, I think, is reasonably clear, and it’s deeply ironic that conservative critics are wondering whether, given her lack of a paper trail, she will turn into another David Souter. I think that Bush is acutely aware that the Souter nomination was his father’s worst and most avoidable mistake. I think that, as was widely reported, he liked John Roberts and was impressed by him during their relatively brief interview. But what grounds, really, does Bush have to trust Roberts? How does he know he won’t "grow in office"? It seems pretty obvious to me that Bush selected Miers to make damn sure that at least one of his nominees won’t drift to the left. He knows Miers well enough to know that she won’t be seduced by Washington Post editorials and Georgetown dinner parties, as a number of Republican appointees have been. He doesn’t think Roberts will be seduced, either, but he can’t know for sure. Isn’t it obvious that the reason Bush chose Miers instead of a better known, objectively better qualified nominee, is that he wanted to be absolutely sure of appointing a staunch and unwavering conservative?

National Review is celebrating its fiftieth birthday. I salute Buckley and everyone else involved in this great enterprise. NR has been good for the country. This was Bill Buckley’s opening statement in November, 1955, justifying the creation of this new magazine. I started reading NR in 1964 just before my first year in college. I was involved in politics, by then, you understand. Goldwater was the good guy and Rockefeller was the bad guy; he represented the East Coast Elite, Liberalism somehow in GOP clothes. Goldwater was straightforward, he spoke about extremism and liberty and virtue, and why some things are worth the effort. I stuck with the cowboy from Arizona through his unjust loss to LBJ, and then stayed with the actor who became famous during that campaign. I mention this because--and this may seem odd to you--once I started reading National Review I actually participated less in practical politics, while becoming more deeply political. By 1965 I stopped almost all my political activities (Young Republicans, etc.) because my time was now consumed less in political action than in the words surrounding that action. These guys writing for NR were interesting and, it seemed to me, deeply thoughtful about almost everything. The words in National Review, I surmised, would have much deeper effect on the common life of the nation than most elections. I was right. NR’s writers always dug deeper, led me to things I knew nothing about, led me to wonder. In short, the minds writing for NR began my education. By the summer of 1965 I was attending seminars offered by professors I could not hope to meet at the state college I attended: Ronald McArthur, Thomas Molnar, Martin Diamond, and Harry Jaffa. I have National Review to thank for all that, and I do.

It is interesting to note that the draft Goldwater movement was launched in 1961 by Ohio Congressman John Ashbrook, William Rusher (the publisher of National Review), and F. Clifton White. White ended up running the extremely effective Goldwater primary campaign against Rockefeller for the GOP nomination in 1964 (see White’s book Suite 3505: The Story of the Draft Goldwater Movement). After the death of John Ashbrook (1982) Clif White became the first director of the Ashbrook Center, with Rusher as Chairman of the Board. Rusher is still active on the Board. Of course, John Ashbrook had one more memorable national moment: He opposed Richard Nixon in the primaries in 1972 (price controls, China policy, etc.; many things about Nixon irritated Ashbrook). In the end, of course, Ashbrook failed, but he helped set things up for Reagan and the conservatism of the eighties. In all these things he was supported by National Review. This is National Review’s endorsement of Ashbrook’s campaign against Nixon in the January 21, 1972 issue of NR. Bill Buckley said of Ashbrook: "He shows the kind of political courage by which one distinguishes between those automatons who represent us in Washington and those special others who are human beings endowed with mind and an active conscience… a human force in which the high qualities of the statesman come together in profusion."

Poor Sen. Cornyn (R-TX): He had the duty this week to pen a Wall St. Journal op-ed arguing for Harriet Miers’s appointment to the Supreme Court. Forget Charles Krauthammer, forget George Will, forget Bill Kristol and all the other "must read" op-eds against Miers. Just read Cornyn’s argument for Texas’ favorite daughter to know why this nomination is a blunder. Setting aside the straw-men arguments he knocks down, his reasons in favor of her appointment contain their own refutation. They can be summed up as follows: Miers deserves to be a S Ct justice precisely because the nomination was so un-expected, so counter-intuitive, so un-[fill in the blank].

The short response to all of this un-reasoning is the simple fact that President Bush never made any of Cornyn’s arguments when he discussed the qualities of potential candidates for the Court. Now for the long response: When did Bush praise the lack of "judicial experience" as refreshing for the high court? When did he extol being a "legal practitioner" as an "asset" for the Supremes? When did Bush say he couldn’t wait to appoint men and women who had spent their careers "representing real people in courtrooms across America"? How often did Bush highlight "the burdens of modern litigation," "frivolous lawsuits," and "tort reform" as pressing concerns in his consideration of whom to appoint to the federal bench? Can anyone recall when Bush remarked even casually that he would jump at the chance to appoint someone who knew not "the Beltway"?

Folks like Cornyn argue that we should not "rush to judgment" simply because we don’t know Miers. But Bush has told us repeatedly the kind of judges he wanted on the Court. And so the American people had every reason to expect a certain kind of judge be nominated. Two names come to mind; need I say more?

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