The Powell precedent

The New York Times can't quite understand why Miers is having so much trouble, when Lewis Powell breezed through in 1971. (Anyone? Anyone? Patterico?)

WASHINGTON, Oct. 23 - On Oct. 22, 1971, President Richard M. Nixon nominated to the Supreme Court a corporate lawyer and former bar association president with no judicial experience. On Dec. 6, his choice, Lewis F. Powell Jr., was confirmed with fanfare by a vote of 89 to 1.

Harriet E. Miers, President Bush's nominee to succeed Justice Sandra Day O'Connor, brings a similar résumé, along with five years in the White House and one year as its counsel. But in just three weeks, her nomination has provoked a range of opposition that some scholars say may have no modern precedent.

And the article points out that this is not the first time in history a president's pick has met with opposition from his own party. Let's see, Ulysses Grant and Caleb Cushing in, uh, 1874.

Ms. Miers is not the first nominee to confront ideological opposition from within her own party. Republicans objected so much to President Ulysses S. Grant's 1874 nomination of Caleb Cushing, a former attorney general and a respected lawyer, that it was withdrawn after four days, said Professor Richard D. Friedman of the University of Michigan Law School. Republicans also complained about President Herbert Hoover's 1932 nomination of the eminent jurist Benjamin Cardozo. Others choices for the court - President Franklin Roosevelt's 1937 nomination of Justice Hugo Black, a former senator who never finished high school, or Mr. Nixon's 1970 nomination of G. Harrold Carswell - have faced doubts about their qualifications.

Ouch, that last reference to Harrold Carswell really hurts!

Sheldon Goldman -- you remember, the guy who was always trotted out to attack Reagan's judicial picks? -- feels sorry for her, according to the N.Y. Times piece.

But several historians said that they could not think of a nominee who had drawn so much criticism from both parties so quickly. "I have to sympathize with this woman," said Sheldon Goldman of the University of Massachusetts, noting the similarity with Justice Powell's résumé.

"The difference in treatment that she has received has been absolutely stunning," Mr. Goldman said.

The difference is that we now know what kind of justice Powell was.

UPDATE: Links to some of my previous Miers posts, serious and not serious, are here.