Editore"s Note
Tilting at Windmills

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October 12, 2005
By: Kevin Drum

WHY HARRIET?....In re Bush v. The Base, the most perplexing question about the Harriet Miers nomination has been "Why?" It's such a breathtakingly dumb move that it's hard to figure out why even a guy like George Bush would undertake to nominate her.

Theories to explain this mystery largely look for similarities between Miers and John Roberts. Thus, perhaps it's the lack of a paper trail that appeals to Bush, something that both Miers and Roberts share. On the other hand, Roberts wasn't a Bush crony, so pure cronyism doesn't seem like a good explanation.

So what else do they have in common? One of the possibilities that's been quietly but persistently bruited about is that they both have lots of executive branch experience and are likely to rule in favor of broad executive branch power. Harold Meyerson gives that theory a boost today, reporting that White House chief of staff Andy Card told an audience last night that he found the most intriguing part of the constitution to be Article II, which established the presidency and the executive branch:

Miers, he continued, understood Article II as well, and would defend it "when challenged by those given the power to challenge it by Article I [i.e., the Congress] and Article III [i.e., the courts]."

....He could not have meant to imply that Miers would see her first duty on the bench as defending Bush against all enemies, legislative and judicial, but that's what he managed to convey. At minimum, he suggested that Miers would be the staunchest proponent of executive power over that of the other two branches that the Court had seen in a very long time.

Brad Plumer unpacks this a bit and notes that Republicans have long adhered to a very broad view of executive power:

Does it matter? Yes, and not just because such a view would prevent Congress from banning torture....In 1988 Congress required the Department of Health and Human Services to mail every household an educational pamphlet on AIDS. The Reagan administration didn't like the pamphlet and refused to mail it....In 1989 the first Bush administration tried to use the "exclusivity" view before the Court to strike down a law authorizing whistleblowers to bring lawsuits on behalf of the federal government against fraudulent contractors. And so on. A judge sympathetic to the "imperial presidency" view is a very bad thing, and seems to me like a much bigger deal than Miers' supposed lack of qualifications.

Given George Bush's apparent veneration of his own office ("I do not need to explain why I say things. That's the interesting thing about being the President"), perhaps this really is the hidden link. Bush's main interest isn't with conservative hot buttons like abortion or the "constitution in exile," it's with consolidation of his own power. On that score, both Roberts and Miers look like shrewd choices.

UPDATE: Steve Bainbridge liveblogs a conference call with RNC Chairman Ken Mehlman this morning:

11:43 Judicial activism is interfering with the GWOT by "micromanaging" decisions. Miers will be solid on executive prerogative.

Roger that.

Kevin Drum 4:46 PM Permalink | Trackbacks

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