IE 11 is not supported. For an optimal experience visit our site on another browser.

With Miers out, who may be next?

/ Source:

With Harriet Miers no longer a nominee for the Supreme Court, the focus now turns to who the president will nominate next.

David Frum, a former speechwriter for President Bush, and now with the American Enterprise Institute, joined MSNBC's Chris Matthews on Thursday's 'Hardball' to discuss why Miers nomination failed and who the president may put forth next.

To read an excerpt of their conversation, continue to the text below. To watch the video, click on the "Launch" button to the right.

CHRIS MATTHEWS:  Who were the big names that initially saw the red flag and said, we don't like this nominee?  Who put up the red flag?  It was you in the mainstream press ... Laura Ingraham, Rush Limbaugh, yourself, Bill Kristol, who else was against this?

DAVID FRUM:  I think you have to say Manny Miranda, who runs a discussion group.  And I think it was like a brush fire.  It just sort of caught.  That people -- some people knew -- had a lot of opinions about the courts. Other people, I knew the nominee. 

MATTHEWS:  You worked at the White House with her. What was the cut of her gib? I know you have to be gentleman-ly, and I hope you are, but what did you think of her an intellect?

FRUM:  She was perfectly fine...for what she was asked to do. As staff secretary, she was a really capable staff secretary. You know, you can be not good enough for the Supreme Court while being perfectly good for all kinds of other things. 

MATTHEWS: Did you work with anybody at the White House that's good enough for the Supreme Court?

FRUM:  There are people there, absolutely. 

MATTHEWS:  What do you think of Olson? Ted Olson? 

FRUM: He would be a perfect nominee - couldn't do better. 

MATTHEWS:  Why don't they nominate him? 

FRUM: Well, I'm not sure he'd take it. He's one of the most successful litigators in Washington and he likes to win. Supreme Court justices don't get to win or lose.  But he would be a great choice.  There are a lot of great choices. 

MATTHEWS:  Well, let's go through the factors.  You worked in the White House, you know how they think.  They want somebody who will serve, like 30 years.  They want to get them in there at 50.  Is the age factor still so hot with this president? 

FRUM:  I want a 30-year person?  Twenty years is also good. He did pick somebody who was 60. 

MATTHEWS: They seem to live to 85 on the court anyway.  You get 25 out of a 60-year-old.

FRUM:  ... The two most important factors are, you want somebody with a clear and consistent judicial conservative philosophy, which is not the same as a political conservative. 

Like, Felix Frankfurter was a big political liberal, but had a judicial conservative philosophy. And you want somebody who's got, really, a first-class mind.

I mean, this court may be the smartest court in American history. I mean, you look at the people on the other side -- Steven Breyer, Ruth Bader Ginsburg, John Paul Stevens -- these are brilliant intellects.  You cannot just send up somebody there and say, vote the right way.

MATTHEWS:  Because?

FRUM:  Because the other judges will make minced meat out of them.  What will happen is, if you write an opinion, it goes out to the legal community of America. They look at it and they say, this isn't convincing, this isn't good. 

MATTHEWS:  Would Clarence Thomas meet your standard right now? If he were nominated right now ... would you fight him?

FRUM:  I was for him. 

MATTHEWS: But you said the standard's risen.

FRUM: Look at this Clarence Thomas story.  This was a person who probably has come from more adversity than any Supreme Court nominee has faced in a long time. 

Rose from adversity, he went to Yale Law School, he held the two most senior civil rights jobs in the federal government where he stood for the principle of color blindness under incredible, under incredible criticism. 

MATTHEWS:  So you believe he had an commitment to opposition to affirmative action in most of its forms.

FRUM: And his friends knew he had a spine of steel.

MATTHEWS: OK, who's out there ... make your pick. You're the guy that brought down the columns, brought down the temple here, so you have to build it again.

FRUM: I have a feeling I'm not the most popular person in the White House.

MATTHEWS: They have to go for someone with greater legal stature.

FRUM:  Yes.

MATTHEWS:  They have to go with someone with more of a track record of conservative political or judicial philosophy. 

FRUM:  Yes. 

MATTHEWS:  Is there anything other concern?  How about gender?  How about age? 

FRUM:  I don't think we need to worry about gender.  This administration has a great record on diversity.  Maybe a step away from the White House in terms of closeness. 

MATTHEWS:  No cronies, right? 

FRUM:  No cronies.  Because questions about presidential power are going to be before the court.  And it's just not going to be credible. 

MATTHEWS:  Question:  How do you find a person that can pass muster not with the intellectual right but the grassroots Christian conservatives as well, the people who ride in the bus and go vote as a group? 

Big power.  They got the president re-elected.  How do they meet your kind of concerns, their kind of concerns, and avoid a filibuster?  How do you do it?

FRUM:  There are 12 people, at least, who would be acceptable to everybody. 

MATTHEWS:  And would get a vote. 

FRUM:  And would get a vote.  As we saw with John Roberts -- and, by the way, before him, Stephen Breyer -- you can nominate a pretty liberal or pretty conservative person.  And if they're outstanding enough, people from the other party will recognize it. 

And just as the Republicans didn't filibuster Breyer, the Dems didn't filibuster John Roberts.  And that can be true.

Watch each night at 5 and 7 p.m. ET on MSNBC.