ConfirmThem

Posted at 11:47pm on Oct. 10, 2005 Gushing and Oozing

By AndrewHyman

Knight-Ridder reports:

Harriet Miers, President Bush's nominee for the Supreme Court, quickly developed a deep and almost gushing admiration for her boss from her earliest days in Texas government.

"You are the best governor ever - deserving of great respect!" she wrote in 1997, in a belated birthday note that was typical of the tone she used in her correspondence with then-Gov. Bush....Miers oozes with deference and awe in her letters to Bush. In a 1995 note, she thanked Bush for a visit and called a ride in a plane with him "Cool!" When she wrote Bush a thank-you note for meeting with a lottery job applicant in 1997, she wrote, "You are the best!"

Some more gushing can be found here. Anyway, as mentioned previously, I expect to remain on the fence until the hearings. There's lots of company up here. Everyone should try to keep an open mind.

In other news about the Miers nomination, Evan Thomas and Jonathan Darman conclude their recent report in Newsweek like so:

The core reason the Framers gave the Senate the power of "advice and consent" on judicial nominees was to provide "a check upon a spirit of favoritism in the president," wrote Alexander Hamilton. At her confirmation hearings, Miers would be well advised to show at least a hint of independence from the man she has so faithfully served.

In other words, no gushing. Meanwhile, it seems that Glenn Reynolds of Instapundit is singing the same tune as Vermont Senator Pat Leahy. Reynolds writes:

[T]here are good reasons why the path from White House Counsel to Supreme Court Justice isn't a well-trodden one, and there are more good reasons why it probably shouldn't become well-trodden.

Leahy put some similar thoughts on the record:

Sen. Patrick Leahy of Vermont, the Democratic co-chair of the committee, told ABC that he had recommended to the president that he "pick somebody outside the judicial monastery" but that he probably should have added: "And also consider somebody outside the White House compound."

None of this looks very good. However, I still hold out hopes that the nominee will show up at her hearings, condemn substantive due process and super stare decisis, and go on to become a great Supreme Court Justice. It could happen.

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Posted at 11:08pm on Oct. 10, 2005 Speaking of qualifications...

By krempasky

Why the heck haven't we recommended our very own Carol Liebau for the job? I mean, sheesh - look at the bio - she deserves at least an appellate seat, for crying out loud.

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Posted at 8:21pm on Oct. 10, 2005 Neuhaus on Miers

By feddie

Father Richard John Neuhaus notes the following over at the First Things blog "On the Square":*

Having mentioned the Supreme Court, almost inevitable is a word about the nomination of Harriet Miers. I have no novel insights or inside information. I do share the widespread disappointment. It is not sufficient for the president to ask us to trust him. An appointment to the Supreme Court, and especially this appointment, is a matter of paramount concern to a political community of which the president is not the sole proprietor. But I expect the president will not change his mind and therefore Ms. Miers will not step aside. That being the case, she will, barring some big surprise, be confirmed and we are all left hoping for the best. It is not an unfamiliar position to be in.

*BTW, if you're not currently a subscriber to First Things, you should be. It is far and away one of the best journals out there on "religion, culture, and the public life."

(Hat tip to Mark Shea)

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Posted at 8:01pm on Oct. 10, 2005 Patterico comes out against the Miers nomination

By feddie

in this thoughtful and detailed post.

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Posted at 7:32pm on Oct. 10, 2005 "Somehow 'I told you so' just doesn't quite say it"

By feddie

Here is an excellent two-part post by my main man, Centinel, on the betrayal felt by many of President Bush's supporters (like yours truly) in the wake of the Miers nomination. Here's a taste:

At the time [leading up to the 2004 presidential election], the only argument that the "Vote Bush"-side ("suckers") could muster was that we had to have Bush because he would nominate conservative judges. Now, a bit of clarification is no doubt due. While having solid, conservative judges at the district and circuit court level is of untold importance, what these supporters were pushing was much sexier than that. Seeing an aging O'Connor, Ginsburg, and Stevens, these individuals argued that Bush might have the opportunity to replace one or, dare we dream, even two of those pillars of liberal jurisprudence. So tantalizing was the meager prospect of actually having a majority of justices who actually believed the Constitution means what it says, that they allowed themselves to fall into the arms of a president who, in many respects, appeared to be governing to the left of the Clinton Administration . . . .

So here, finally, was that bright, shining moment that Conservatives have been anticipating for over a generation. After years of smarting from Blackmun, Souter, and other Boomerang Justices -- after decades of blood, sweat, tears and sacrifice -- we finally had an opportunity to put a majority of Solid Conservatives on the United States Supreme Court. Cue angelic trumpets.

Oooops. Fumble in the endzone.

So what do we do now? There's a lot of Conservatives out there with egg on their faces. I would find some comfort in saying "I told you so," but this government affects me as much as anyone else.

In fact, I think something positive may be coming out of the Miers nomination. For the first time in my political memory I'm actually seeing Conservatives say, "No more." I think that this screwup may have been a big enough to actually cause the "my party, wrong or right" crowd to finally decide enough is enough. Even my father, diehard GOP supporter that he is, has stated that he doesn't think he would vote for Bush again.

And that is the answer, boys and girls. If you want change, sometimes you have to be willing to do nothing for it. In the face of the overwhelming urge to say, "I know this Politician sucks, but he's better than the other guys, so I'm going to donate $500 dollars to his campaign and vote for him," you have to have the courage to fight back and just sit on your couch. If the most conservative 5% of this country would just take an election off, I guarantee that they'll hear a different tune from Republicans during the next election.

Sometimes, to make an omelet, you have to break a few eggs. Still, it's better than getting them on your face.

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Posted at 6:37pm on Oct. 10, 2005 Et tu, W?

By feddie

Too funny.

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Posted at 5:26pm on Oct. 10, 2005 Exit Strategy

By Quin

If Bush is to withdraw the Miers nomination, or if she is going to withdraw herself (one or the other really must happen, for the good of the conservative movement, the GOP, and the country), there really needs to be an exit strategy. Look, Bush is loyal not just to a fault, but beyond it (best example: this horrible nomination itself). The last thing he will want, personally, is for his friend and loyal aide to look like she is being forced to slink away. If he is to withdraw her, he needs a good excuse that will salvage her reputation and, to whatevery little extent possible, her feelings. (And frankly, I feel bad for her right now: Shen you are under attack, it's tough to separate the substance of the attack from the personal nature of it; it seems as if you are being attacked quite personally, rather thanhaving your resume be attacked.)

Anyway, I really think we ought to find a way for Bush to make the withdrawal with dignity. But I have no great ideas on this front. Anybody out there with any suggestions?

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Posted at 5:02pm on Oct. 10, 2005 Rejection, not withdrawal

By Zummo

It's been awhile. New job, less time to blog.

A couple of general observations. This blog was set up as a means by which to promote the President's judicial nominees. We are all, more or less, conservative activists seeking to influence the process and move the Court in a new direction. It is telling that a majority of bloggers and commenters have expressed their disapproval of Harriet Miers to the point where this site might as well be called stophernow.com or some such. Nothing is a more telling example of the political failure of this nomination than that the President's most loyal supporters have now become his biggest opponents, at least on this one issue.

Now that the damage is done, and the President has made his choice, some urge silence and acceptance. Such an action would prove to be even more of a political disaster in the long-run.

A sudden retreat by those that have already expressed their displeasure would severely damage the credibility of the conservative movement. We would look like political opportunists who have no desire to stand up to the political establishment. Suddenly we would all look like political cronies who lack backbone. Why would anyone pay attention to the conservative commentariat if it was obvious that we had no ability whatsoever to criticize the administration? Please keep in mind that I am not avocating dissent for the sake of dissent, but frankly I think it is a good thing that we do not reflexively circle the wagons around President Bush the way that the left did around President Clinton.

There is no point in silence, nor is there much point in "waiting and seeing." The confirmation hearings will disclose little about Miers' judicial philosophy, though they might be somewhat more revealing about her intellectual capacity. That's not to say opponents should not keep an open mind, but it seems rather naive to expect much of anything to come from these hearings.

So what should we hope for: withdrawal, rejection, or confirmation? Politically speaking, a rejection might be more politically palatable than some commentators realize. A withdrawal might make Bush appear politically weaker than outright rejection. Some would take it as a sign that Bush is a prisoner to his base (that's how moderates and liberals would look at it, not necessarily conservatives). Though on my own blog I categorized Bush as a "wimp" when I first heard of the pick, Bush has aptly demonstrated just the opposite quality. He made the pick, and now he's sticking to his guns. It was the wrong pick, but it was his nonetheless, and he is displaying a fierce independent streak that we might not like, but that might appeal to non-conservatives. (Again, that's not to say that the Miers pick was a Machavellian ploy to convince the public of his independence, or that such a strategy would work very well.)

A rejection might harm Bush politically, but it might help Republicans in general. Considering that Bush is a second-term President, the political viablility of the Party is more important than that of the President individually (though of course they are tied together to some degree). A Senate rejection of Ms. Miers would go a long way in stemming the tide of disaffection. The Congressional party would be resurgent (remember when there used to be a division between the "congressional" party and the "presidential" party? Ah, for old time political science), and would stave off a potential electoral nightmare in 2006.

An objection would be that the President still has three years left on his term, and he cannot be a lame duck. But I would counter that the short-term hit on Bush's political standing in the event of a rejection would be far less severe than the long-term impact on the GOP in general if Miers is confirmed. Bush's political fortunes are still more tied to the war in Iraq, the economy, gas prices etc. as far as the general public is concerned. In the grand scheme of things, his standing will rise and fall with these other issues. But with the base, things are a little different. A large chunk of the right is highly invested in the issue of judicial appointments, and they will not be in a forgiving mood once Miers is confirmed. Republicans could lose crucial close races if many conservatives stay at home on election night. And since mid-term elections are driven by turnout, it could make the difference in whether or not Republicans retain their majorities. And what's practically more important for Bush's future political success: his poll numbers or his party support within Congress? It's nice to have high poll numbers, but you need a governing majority to do anything with them.

Finally, one last note. I would hope that after months of decrying the use of the filibuster, those of us that oppose the Miers nomination will not suddenly turn around and advocate its use in this particular situation. A little intellectual consistency can go a long way.

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Posted at 3:04pm on Oct. 10, 2005 Malkin, Dobson & Hewitt on Miers

By AndrewHyman

Michelle Malkin has a good roundup of weekend Miers items, plus this further post. Also, the blog TruthLaidBear has just set up a very useful tracking page on the Miers nomination, and I've linked it over at the right side of our page.

A brief comment about Dr. Dobson: If Senator Specter and his committee issue a subpoena, I don't think that would necessarily be such a bad thing, and Dr. Dobson might not think it's such a bad thing either. But everyone should be aware that they might not hear what they expect.

And turning to Hugh Hewitt, he continues to have some interesting comments about this whole situation, including this one, in which he says the following:

Here is the fundamental guide to Constitutional Law: Majorities, acting through their elected representatives, ought not to be frustrated by unelected judges unless the statute those representatives have passed violates a clear Constitutional command.

I fully intend to blog against the Miers nomination IF she testifies in favor of the doctrine of substantive due process, which emphatically is NOT a constitutional command, much less a "clear constitutional command." I hope Hugh would do the same.

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Posted at 2:39pm on Oct. 10, 2005 Dim, Dim, Dim

By Carol Platt Liebau

If Arlen Specter is really serious about subpoenaing James Dobson, some of his Senate colleagues had better advise him to think twice. It's one thing for Democrats like Ken Salazar or Pat Leahy to behave that way -- quite another for Republicans to do so.

Of course evangelicals like Dr. Dobson annoy the life out of pro-choice "moderates" like Arlen Specter. But they also allow him to enjoy the post of Judiciary Committee Chairman because his party's in the majority.

No, it's not like the Religious Right will vote for a Democrat if Republicans mistreat them. But they will stay home -- even as it is, it's a real matter of debate within some religious right communities whether they should be engaging in politics at all.

Even as everyone enjoys having their say about Harriet Miers, her faith, and "what Dr. Dobson knew and when he knew it" -- be aware. If the Religious Right goes, Republican electoral dominance goes with them.

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Posted at 1:04pm on Oct. 10, 2005 Reasons to "Wait and Hear"

By Carol Platt Liebau

John Fund announces that he has changed his mind on Miers from last Thursday, when I quoted him approvingly here. Fund seems to argue that we shouldn't wait for the information the hearings will disclose before opposing Harriet Miers. The problem is that he disclose any "silver bullet" that explains his volte-face.

Here's how I see it. Is there anybody that's thrilled with the Miers nomination like we were with Roberts? No. Does every conservative wish the President had picked someone else? Yes. But that's not the real question here -- what's done is done. The real question is whether we should be calling for her withdrawal, etc., before we have heard a single word issue from her mouth before the Judiciary Committee.

I've said before that opposing Miers isn't out of the question -- but it should be on facts, not foreboding (of which everyone, I think, has a real and present sense). There is still time after the hearings for the nomination to be opposed, if it must be, and for it to be withdrawn, if it should be. But it strikes me that there are significant advantages in giving Ms. Miers a chance to speak for herself. Among them are:

(1) Ideology. Forcing a Miers withdrawal before her hearings, and clearly on the basis of ideology, legitimizes the idea that ideology is a sufficient reason for opposition to otherwise qualified (if not optimal) judicial nominees. Not only is this an inversion of the traditional GOP argument against the Democrats, it is also inconsistent with Republicans' treatment of, say, Ruth Bader Ginsburg. If we believe that the Republicans have a good change of holding the presidency and the Senate after 2008, this is a position we should avoid. And don't think the Dems won't use it against us.

(2) Politics. As this piece points out, the Republican rank and file are disposed to look favorably on the Miers nomination. Minds can be changed, but there has to be a concrete reason for the changing. Right now, there are certainly many doubts about Miers, but few real facts. And reasons like "we're afraid she's not an originalist" or "she's not the best qualified candidate" or "the President should have picked someone else" don't really cut it with regular people who see nothing amiss with Ms. Miers' credentials and who trust the President based on his conduct vis-a-vis tax cuts, appellate judges, the war on terror and other matters.

In fact, the outcry by some has been so quick, so vehement and so savage that, in some ways, it has put conservatives, and perhaps Republicans generally, in a box of their own making. If the nomination goes forward, blood letting and internecine warfare continues. If it's withdrawn (which won't happen, BTW), the President looks like he is caught in thrall to a group of extremists (no, I don't believe that Miers opponents are extremists, but that would be the appearance).

Here's why. Imagine if a Democratic president appointed someone about whom little was known -- and the facts that had trickled out had given some reason for comfort and alarm to both sides. Nan Aron refuses to endorse. And immediately everyone from Laurence Tribe to Katrina Vanden Heuvel to Paul Krugman to Ralph Nader demands that the nominee be withdrawn, without even having heard her testimony. And news came out that they were, collectively, busting Howard Deans' chops. To "normal" people on both sides of the aisle, it would sound like a premature and frankly unreasonable temper tantrum on the part of some activists -- and we would only hope that news of the rift would travel far and wide, so as to suggest to the vast middle of the American people that some pretty "scary extremists" were calling the shots on judges in the Democratic Party. And we'd hope that everyone would remember come Election Day. Don't let's come across that way.

And let's not create a misperception that will allow us to be caricatured by our opponents on the left as snobs, who have no regard for the intellect and abilities of "regular people" -- or even practicing attorneys. For years, despite evidence to the contrary, the left has insisted that it's the party of "ordinary folks." Allowing our criticisms to sound elitist will reinforce an argument that has no merit.

(3) Fairness. From everything I've read, Harriet Miers is a big girl who can take care of herself. And I understand the anger at the President for nominating her and even some of the anger at her for accepting. And a Supreme Court seat is a privilege, not a right. But it does seem that an element of fundamental fairness is involved in giving the woman a chance to be heard before we join in lockstep to demand that her name be withdrawn. After all, even if it can't always be the primary consideration, it's worth remembering that -- even though this is politics, and politics ain't beanbag -- there is a person at the center of all this; a "lovely person," in fact (even according to one of her most stringent critics), and certainly a person of accomplishment and unquestioned integrity -- even if she isn't our first (or tenth) choice.

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Posted at 12:53pm on Oct. 10, 2005 Presumption of Cronyism

By DanCT

John Fund in today's OpinionJournal.com:

I have changed my mind about Harriet Miers. Last Thursday, I wrote in OpinionJournal's Political Diary that "while skepticism of Ms. Miers is justified, the time is fast approaching when such expressions should be muted until the Senate hearings begin. At that point, Ms. Miers will finally be able to speak for herself."

But that was before I interviewed more than a dozen of her friends and colleagues along with political players in Texas. I came away convinced that questions about Ms. Miers should be raised now--and loudly--because she has spent her entire life avoiding giving a clear picture of herself.

The longer it takes for the administration and HM supporters to come forth with strong arguments in support of the nominee, the more the skepticism grows. I started out stunned and angry at the choice but quickly slipped into wait-and-see mode. In the past week, though, I've seen very little besides abstract arguments such as "trust the President", "the President should be given deference", "she would bring diversity to the court", "Constitutional law is easy; the more you learn about it, the more you muck it up; therefore, we need someone who doesn't know very much about it." The concrete arguments in favor of her nomination have been weak: "she's a consensus builder", "she's a Christian", "Mr. X says she's pro-life", "she's compassionate."

By choosing someone with such close personal ties to him and with qualifications that are, at best, marginal, the deference to the President's choice and the presumption of confirmation are eroded, even to the degree that the burden of proof now shifts to the President to show that she is uniquely qualified for the bench and was not chosen simply out of personal loyalty. Without solid, concrete reasons to support her --- reasons that apply specifically to her qualifications and temperament and not simply abstract, general arguments --- she should be rejected.

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Posted at 12:49pm on Oct. 10, 2005 The Miers Meltdown

By Lorie Byrd

In my most recent post at Polipundit, I talk about what I describe as the "Miers Meltdown" which has taken place in the blogosphere. Due to the length of the piece, I am only posting a couple of excerpts here, along with a link to the full post.

Instead of engaging in meaningful debate, many preferred to attack their fellow conservative for their position on the nomination. If conservatives really believe this nomination is as important as they claim (and I happen to believe it is) shouldnââ‚â„¢t the debate over the issues involved be serious ones?...

What I found to be perhaps the most persuasive and valid criticism of the Miers nomination is the possibility that she would have to recuse herself from cases involving the War on Terror due to her experience in the White House. I hope that if she does make it to the hearing stage that this issue will be addessed because, more so than most others, this one seems to me to be a potential dealbreaker. Unfortunately, this and issues such as the one Polipundit raised about questions over past positions on affirmative action, have been overshadowed by a conservative food fight replete with name-calling. What could have been a debate within the Republican party over real issues like affirmative action, instead became about what school the nominee attended. That is a shame.

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Posted at 1:33am on Oct. 10, 2005 Elitism, Sexism, or Principle?

By AndrewHyman

What is motivating conservative opposition to the Miers nomination? Laura Ingraham is conducting a poll. As of now, about 2% are saying "sexism," which suggests other factors are primarily driving the opposition. For what it's worth, as someone who is firmly planted high up on the fence, I haven't seen any sexism or elitism on the part of my fellow confirmthem bloggers who are urging withdrawal of the nomination.

I think the main concern of all us bloggers is that we want a nominee who will be just and fair when the law allows it, but who will be mean and unjust when the law requires it. Judges are not above the law. That's what is mainly driving this controversy, together with great uncertainty about where the nominee stands on matters of interpretation. We do not want someone who is so pragmatic that he or she will throw the law aside in order to do what he or she subjectively believes to be "the right thing." Such a judicial elitist would not be qualified to sit on the Supreme Court.

As Jefferson explained in 1785, a court of equity normally ââ‚Å“cannot interpose in any case against the express letter and intention of the legislature. If the legislature means to enact an injustice, however palpable, the court of Chancery is not the body with whom a correcting power is lodged.ââ‚?

How much we personally admire a nominee, or how much we sympathize with the struggles that he or she has gone through, is kind of beside the point. The question is whether the nominee will do a good job, and will correctly understand the judicial role.

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Posted at 12:40am on Oct. 10, 2005 A View From the Bench

By Carol Platt Liebau

I received the following note from Judge Sharolyn Woods -- a state district court judge in Texas. She took strong exception to my statement here that "anyone who charges there is an element of 'sexism' in any of this discussion -- by anyone on any side -- is just wrong."

I despise spurious claims of sexism. But in evaluating the qualifications and fitness of a nominee like Harriet Miers, it's just as wrong to dismiss the obstacles she and others confronted, especially when their professionalism really did result in the rest of us having professional choices that once weren't available (and especially when those obstacles may, as Judge Woods argues, account for certain aspects of Ms. Miers' record). Judge Woods gave me permission to post her letter, and in the interest of fairness, it is reproduced in its entirety below:

As a woman who started law school in Texas just as Harriet Miers was graduating, I assure you that the "lack of qualifications" talk is exactly sexism. How quickly times are forgotten, and those were times to forget.

Houston, Texas

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Posted at 10:39pm on Oct. 9, 2005 This liberal gets it

By feddie

Rogers Cadenhead of the blog "Workbench" on conservative dissent over the Miers nomination:

Stealth nominees have a strategic short-term advantage that makes it difficult to keep them off the court, so it's likely that Miers will be confirmed unless President Bush withdraws the nomination, which ranks in probability somewhere between "no chance in hell" and "never in a million years." The president's so stubborn that were he captain of the Titanic, he would have run the ship into a second iceberg to prove he meant to hit the first one.

There's a long-term price for filling the Supreme Court in secrecy . . . . Conservatives have built an intellectual foundation for their interpretation of constitutional law over a quarter century, as embodied by the Federalist Society and the embrace of originalism.

Neither Bush appointment has publicly nurtured this movement during their careers. In some instances, they've even distanced themselves from it. When asked her most admired Supreme Court justice, Miers did not choose Justices Scalia or Thomas. When John Roberts showed up in a Federalist Society membership directory, the White House issued a quick denial, stating that he "has no recollection of being a member."

Roger Pilon, a Cato Institute vice president and society member, was stunned to see Roberts run away from the association as if Joseph McCarthy was after him. "Are you now, or have you ever been, a member of the Federalist Society?"

If you're a 25-year-old conservative who graduated Harvard Law first in your class and clerks for Chief Justice Roberts, do you spend the next 20 years contributing to law journals, actively participating in the Federalist Society and seeking a judgeship from which you can foster conservative jurisprudence?

Clearly, if you have supreme ambitions, the answer is no. By choosing Roberts and Miers, Bush has publicly affirmed the notion that judicial conservatives believe in an ideology that dare not speak its name. Friends of Clarence are the new Friends of Dorothy, forced to develop furtive code phrases to seek each other out -- just like how President Bush namedrops Dred Scott as a double-secret shout out to anti-abortion activists.

"I couldn't help but overhear what you said about Griswold v. Connecticut at the bar, friend. Want to take this someplace more private so we can disrespect stare decisis away from all of these living constitutionalists?"

Harriet Miers is the best thing to happen to liberals since the repeal of anti-sodomy laws. I hope she has a sister.

I love the line about Griswold. That's pure gold (and certainly consistent with my "stare decisis is fo' suckas" judicial philosophy).

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Posted at 8:42pm on Oct. 9, 2005 No Failure of Any "Code"

By Carol Platt Liebau

The New York Times announces that there has been a failure of the "Bush code" -- referring to the carefully phrased allusions the President supposedly uses to speak to the Religious Right -- given that the Religious Right is supposedly deserting him in droves over the Miers nomination.

Not so fast. The only vocal opponent they've found is the Rev. Donald Wildmon, who was inclined to be critical of the President already. In that, he resembles Patrick Buchanan and Trent Lott -- both among the first out of the box to savage the President, both with their own reasons for doing so.

It's worth noting that two of the biggest figures in the Religious Right -- Dr. James Dobson of Focus on the Family and Richard Land of the Southern Baptist Convention -- have been two of the President's staunchest defenders. And the fact is that they influence many, many more people in the President's base than even the conservative superstar pundits who have been so eloquent in their denunciations of Ms. Miers.

But don't expect the Times to know that -- while their rolodexes may extend to people like Peggy Noonan and Bill Kristol, they sure as heck don't include Richard Land. (Which, incidentally, is their loss. Mr. Land was on "Meet the Press" this morning, and absolutely demolished the liberal stereotype that people of faith lack "sophistication." Land, a Princeton grad, was one of the few people on any side who could go toe-to-toe with Pat Buchanan in debate).

The article also alludes to the conservative senators who have hinted that they might oppose Ms. Miers. As difficult as the questions are that she'll have to answer, they'll have a few of their own. By their opposition -- clearly on ideological grounds -- would they validate the Democrat senators' position that ideology is a valid gound on which to oppose an otherwise qualified nominee? And, fairly or not, don't they run the risk of looking a bit like the Chuck Schumers of the right -- people who are doing the bidding of ideological interest groups at the expense of a nominee who looks, to the vast mass of Americans, like an unobjectionable and qualified pick for the Court?

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Posted at 8:01pm on Oct. 9, 2005 Can Any Person of Integrity Become a Good Judge?

By AndrewHyman

The framers of the Constitution thought not. Here's what Alexander Hamilton said:

[I]t will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that ... a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.

Just something to mull over (in view of the previous post about John Hinderaker). And maybe Senator McCain is setting the bar a bit too low:

If it turns out sheââ‚â„¢s a communist I would consider a no vote. Or, perhaps an arsonist, or an axe-murderer, but we have to review it. I am favorably disposed towards her and want to see the hearings. Thatââ‚â„¢s why we have the hearings.

UPDATE [10/9/05]: It occurs to me that Senator McCain's humorous remark unintentionally raises an interesting point. No one would say that an axe-murderer has the requisite integrity to serve on the Supreme Court. And no one would say that someone who favors the legality of axe murders has enough integrity to serve on the Court either. So consider this statement by the Supreme Court of California:

"The third party killing of a fetus with malice aforethought is murder . . . as long as the state can show that the fetus has progressed beyond the embryonic stage of seven to eight weeks." People v. Davis, 7 Cal. 4th 797, 814, 30 Cal. Rptr. 2d 50, 61, 872 P.2d 591, 602 (1994).

Of course, the U.S. Supreme Court has interpreted the Constitution as guaranteeing a right to abort many months after the embryonic stage. At what point does a misinterpretation of the Constitution sink to the point of demonstrating lack of integrity? And should it be okay to question a nominee in order to screen out nominees who lack that integrity? Tough questions.

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Posted at 7:10pm on Oct. 9, 2005 Wouldn't It Be Great To Hear A Justice Ask This Question?

By Lorie Byrd

I really liked this quote from one of John Hinderaker's posts at Power Line:

I've always thought it might be salutary to have a non-lawyer or two on the Court. God knows we have plenty of businessmen, scientists, historians, housewives and others who are perfectly competent to read and understand the Constitution or a federal statute. And I think it would be fun to have such a person say, just once, as the Justices are deliberating: "Where does it say that?"

I have heard from quite a few this week who think that not only should nominees to the Supreme Court all have law degrees, but that those degrees should be from one of a handful of top schools and that experience as a judge is also necessary. But I would bet that even most of those people would love to hear John Hinderaker's question asked by one of those sitting on the Supreme Court. Actually, I wouldn't be surprised to learn that it already has.

Link via Michelle Malkin, who has a weekend roundup of Miers' posts.

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Posted at 5:12pm on Oct. 9, 2005 A Word on Judicial Clerks

By Carol Platt Liebau

Hugh Hewitt has articulated so many arguments against reflexive anti-Mierism so well that's it's ridiculous and duplicative for me to try to summarize them here. His entry is a must read. (In the interests of full disclosure, Hugh sometimes permits me to guest-host his radio show. That being said, I agree with him -- and would feel free to disagree -- on the merits of his arguments alone.)

I'd add something only to one of his points onthe whole argument that being a justice requires a lifetime of study of constitutional law (a "con law priesthood" of sorts). As many know, all justices have four law clerks (the Chief used to have three) -- all top students from the top law schools. Although it varies from chambers to chambers, some justices' clerks play an extensive role in drafting their opinions and articulating theory. This has been particularly true in the case of old or infirm justices (though not, I would hasten to add, in Chief Justice Rehnquist's case) -- and in the cases of some others.

To the extent that the Washington legal elites haven't protested this system (and many, indeed, are products of it), I'd ask this: Do they really believe that a young person two years out of law school -- brilliant though he/she may be -- has a fuller, more rounded knowledge of the Constitution, and is more capable of understanding the Constitution than an eminent practicioner of many years' experience with the credentials of Harriet Miers?

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Posted at 3:45pm on Oct. 9, 2005 Do You Like Tables and Charts?

By AndrewHyman

RightSideRedux has put the Miers debate in tabular form --- but none of us confirmthem pundits made it onto the chart. Anyway, Mark Kilmer offers a good summary of what was said about Miers on the Sunday talk shows, in narrative form.

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Posted at 3:28pm on Oct. 9, 2005 Please withdraw her -- the politics

By Quin

So many good arguments have been made by so many bright people, about why Miers is a bad choice, that I need not repeat them or add to them here. Stuart Taylor, George Will, Bill Kristol, Proessor Bainbridge, Charles Krauthammer, David Frum, just about everybody at National Review, Randy Barnett, Robert Bork, conservative leaders in private by the scores who fear saying or can't say anything in public..... And on and on.

Now is time to consider the politics of it all. Kristol did a good job of it, saying that a withdrawal kills an issue and lets Bush move on to other things. He's right. But there's more. The truth is that the longer this goes on, the more and more his ordinary supporters get split up -- and not just split, but angry. Ed Gillespie jerily calls Miers' critics sexist and elitist. Ronald Cass says we are whining. Ramesh Pnnuru responds by calling Cass a shill. Somebody here used reall harsh word to attack the wise and thoughtful Carol (who IS wrong on this, but who has kept her discussions on a very high plane.) And so on and so on. And those are just a few of many, many examples. There can be no doubt that it will get worse. On the other hand, are there any major supporters of Miers who feel so strongly about it that they will remain angry if Bush moves on to somebody else? I doubt it. The impression I get is that even the Miers supporters don't think she is the BEST choice, not by any means.. but they like her okay, and they feel loyal to the president, and so they are doing their best to support her. But these people will just as quickly rally AGAIN behind, and join Miers' conservative opponents in supporting, a new, better nominee. And if the nominee is of the caliber of John Roberts, Bush will again impress a broad swath of the American public. In short, a withdrawal now, followed by a solid nomination later, will do Bush FAR better politically than will EITHER a defeat or a "victory" (in terms of getting Miers confirmed) in a few months. NOTHING Bush does can make the Miers pick a public relations victory for him, and as long as she is the nominee he will have a base of conservatives so unhappy that they won't have the energy or perhaps the inclination to really go to the mat for him on anything else. And this won't be like taking the ball and going home (by the conservatives, I mean); it won't be a juvenile response; it's just normal psychology. It' s not that consertives will be trying to hurt Bush, but only that they will be so demoralized that they don't have the energy to help him.

In short, the nomination will be a continuing political disaster. Since it already is a substantive disaster, he should recognize that this is one time where just two strikes, if the strikes are bad enough, means he's out. WITHDRAW HER, NOW!

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Posted at 2:05pm on Oct. 9, 2005 "Conservatives say Democrats cowed Bush into weak court choice"

By feddie

Per the request of CT's loyal readers, I am highlighting this article by the Chicago Tribune:

Conservatives had fought hard against Gonzales, long believed to be Bush's first choice, and they believed it had reaped dividends. In the week leading up to the Miers announcement, administration officials quietly assured some leading outside advisers that Gonzales would not be the pick.

"Conservatives will be happy," a White House official told one outside adviser on the night of Oct. 2, just hours after Bush had offered the job to Miers.

As word quietly spread that night, several recalled that White House Chief of Staff Andrew Card had offered similar assurances to Justice Clarence Thomas at a state dinner the night before Bush nominated John Roberts Jr. to the high court in July. Conservatives embraced Roberts, who was confirmed last month as chief justice.

Speculation quickly centered on Alito and Luttig, the two among those under consideration who would most closely match Roberts.

Owen seriously considered

Bush had emphasized to his aides, however, that he wanted to nominate a woman or minority. Federal appellate Judge Priscilla Owen had been under serious consideration and, an administration official said, was willing to endure another fight, after surviving a Democrat-led filibuster of her nomination to the New Orleans-based federal appeals court. She did not withdraw her name from consideration, the official said.

But Senate Minority Leader Harry Reid (D-Nev.) and other Senate Democrats had warned Bush that the nomination of the strongly conservative Owen would provoke an all-out fight and likely trigger a filibuster.

So with his approval rating dropping after the government's response to Hurricane Katrina, Bush turned to Miers, his trusted adviser. Officials had floated the idea of nominating her with top outside legal advisers the week before, and they believed the Republican Party's conservative base would be content with her nomination.

Instead, it set off an immediate and intense backlash among conservatives who had hoped the White House would select a nominee with clearly defined views and the intellectual strength to move the Supreme Court to the right. Miers, they said, was not that nominee. The White House was forced into full damage-control mode, with Vice President Dick Cheney appearing on talk radio to defend the choice and Bush holding a news conference the next day.

But as White House officials and outside advisers began trying to shore up support among social conservatives, they angered other elements of the base offended by the suggestion that Miers' religious views or personal loyalty to Bush would cause her to vote the "right" way on the court.

Senior Republican aides in the Senate last week called the administration's failure to anticipate the controversy and its defense of Miers "monstrously bad" and "arrogant." One staffer of a leading Republican senator said the nomination dismantled years of work promoting the conservative legal philosophy that judges should be guided solely by the rule of law, not by their personal views.

Republican staffers on the Senate Judiciary Committee have long been frustrated by what they see as political missteps by the White House on judicial appointments, dating to Bush's first term, going through the filibusters and culminating with the "total disarray" of the Miers nomination, as one put it. Now, several noted, senators head into a weeklong recess with no strategy and no plan for talking to voters about Miers in their home states.

For Democrats, the filibuster of Estrada and other nominees was prompted partly by the bad blood that had developed with the White House over previous judicial nominations. But it also was always in part about the Supreme Court.

The Democrats were successful in part because neither new Majority Leader Bill Frist (R-Tenn.) nor top White House officials fully appreciated the consequences of not fighting harder against filibusters, according to Republicans involved in the process.

Former Majority Leader Trent Lott (R-Miss.), who was ousted in late 2002 after making racially insensitive remarks, has criticized Frist for not moving more swiftly and forcefully on the issue when Estrada was first blocked, suggesting the situation could have been averted.

Lott now has refused to endorse Miers and said he could think of many more-qualified nominees. The Miers nomination also stoked simmering resentment among Senate Republican staffers, who complained that the White House had long failed to grasp the politics of the confirmation process and unnecessarily alienated Democrats.

`Zilch' on `good' confirmations

"The administration has acted as if the president's job is nominations, not appointment," said an aide to a top Republican senator. "They've made the base happy with lots of good nominations, but they have done zilch to get them confirmed."

White House officials respond that they mounted a strenuous defense of the filibustered nominees and ultimately got many of them confirmed. And they noted that a great majority of Bush's nominees have been approved.

Even outside legal advisers said they felt rebuffed by White House officials after they tried to engage the administration on the filibuster issue. They had emphasized privately to the White House that the filibuster was a monumental threat to the president's authority to name judges of his choosing and urged Bush to become more directly involved.

But Gonzales, who then was the White House counsel, insisted the battle was a Senate issue.

"From the perspective of the White House, this is a matter-- an internal Senate matter to be resolved within the Senate," he told the Judiciary Committee during his confirmation hearings as attorney general.

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Posted at 11:54pm on Oct. 8, 2005 Brownback Says

By AndrewHyman

Brownback says he remains skeptical about the nomination of Harriet Miers to the Supreme Court. But he says criticism of her should be kept civil. Brownback says he thinks the tenor of the debate over Miers' nomination needs to be toned down....Brownback says it's lamentable that Bush nominated someone with such a thin public record. He had urged Bush to nominate someone with a clear record on important issues, such as abortion. Brownback says it appears Bush is determined that nominees avoid dealing with those issues before being confirmed. Brownback says the nomination hearings for Miers will be very important because of her lack of public record.

Senator Brownback is right, of course.

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Posted at 11:07pm on Oct. 8, 2005 "We must give them the bayonet!"

By feddie

O.k., that's not what Professor Bainbridge actually says in his most recent post (" Why the Miers Fight is Worth Fighting"), but that's the gist of it. Here's a taste:

It's not just that any fair minded person would recognize that Miers' qualifications are less compelling than those of other candidates. It's not just that Miers' limited track record as a Dallas councilwoman suggests a serious risk that she'll take Sandra Day O'Connor's role as a swing vote rather than reliably lining up with Scalia, Thomas, and, hopefully, Roberts. It's not just her disdain for movement conservatism as exemplified by the Federalist Society. It's not just that her supporters are playing the faith card in a cynical and transparent way. It's not just that this is yet one more disappointment by Bush. It is all that plus one more very basic fact: This was the moment to pick a fight.

. . . .

Nor is the main risk the very real prospect that letting Miers sail through without conservative opposition will let Bush and the party leaders feel confident they can continue shafting the base, which would eventually backfire if angry activists sit out the 2006 and 2008 election cycles. The risk is that we'll never again have as good a chance as we do right now to fight and win the battle to, as Henninger put it, "confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing," so that that "vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to." Indeed.

This is a fight we can afford. It's the right fight. Those of us who oppose Miers need to keep on fighting.

Amen!

We are the "first brigade!"

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Posted at 9:57pm on Oct. 8, 2005 Plea From Beldar to Fellow Conservatives

By AndrewHyman

He says:

[W]e are not enemies, but friends; we must not become enemies; and we ought not blow the better angels of our natures out of the sky with 12-gauge shotgun blasts of overheated, hysterical, and scar-producing rhetoric.

Gee, that kind of plea didn't work too well, last time it was used. I should add that Beldar is doing great work counter-balancing some of the arguments against the Miers nomination.

UPDATE: One blogger suggests switching the Miers nomination to the DC Circuit.

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Posted at 9:22pm on Oct. 8, 2005 Dobson May Get Subpoena

By AndrewHyman

Ankle-Biting Pundits reported yesterday that the Senate Judiciary Committee is thinking about issuing a subpoena for Dr. James Dobson of Focus on the Family. Seems the recent SCOTUS nomination may have been predicated on secret assurances to Dr. Dobson. Pat Buchanan is saying that secret assurances to Dobson are not enough.

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Posted at 6:39pm on Oct. 8, 2005 "Life in the Blogosphere's Right Lane"

By feddie

I just listened to my appearance on NPR's "All Things Considered." I am fairly pleased with it. They cut some things I said that I wished they hadn't, but all in all it was an interesting report IMHO.

You can listen to the program here at 7:30 p.m. EST.

Update: The audio is now available. My interview starts at around 5:22.

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Posted at 5:39pm on Oct. 8, 2005 Just Asking the Question(s) . . .

By Carol Platt Liebau

Yesterday on Hugh Hewitt's show, Fred Barnes made an interesting point. To the extent that any Miers opponents are hoping or expecting Republican senators to vote against the nomination, it will pretty well have to be those who were elected post-Ginsburg confirmation. How, after all, can Republicans who voted in favor of Ginsburg reasonably oppose Miers?

To that, I would add: As I wrote below, I stand second to no one in my admiration for Justice Clarence Thomas. He is a great man and a magnificent justice. But how can the Republicans who deemed his credentials at the time of his nomination sufficient for elevation now turn around and oppose Miers?

And finally, how 'bout this one: For years, conservatives have, quite rightly, been pointing out that it's the President's prerogative to appoint Supreme Court justices (as many conservatives did, right before voting in favor of Breyer and Ginsburg). And more recently, they've been adding, also quite rightly, that if the Democrats want to pick justices with a philosophy, background and credentials they like, they'll need to get one of their own elected. Does the validity of this argument change if one substitutes the term "anti-Miers conservatives" for "Democrats" in the immediately preceding sentence? And is it good for all of us in the long run if this particular argument is invalidated by our behavior now?

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Posted at 5:00pm on Oct. 8, 2005 The Fall Back & Dobson & Starr, Oh My.

By Erick

Despite what Robert Novak reports, I have no doubt, none, zero, that the fallback nominee was not Callahan, but Karen Williams. No doubts at all on that. Novak and I have both obviously been wrong, but this strikes me very much as a scare tactic from some of the kids in the administration who want us to believe the alternative would have been worse than Miers (and it would have been if it were Callahan, though it was not).

Actually the Williams fallback would have been better and I expect that when Miers gets the boot, which I think is still the minority view, but increasingly likely, Williams or Corrigan could be the pick.

AGAG and Callahan would both risk further rebellion from conservatives.

Also, as has been reported elsewhere, James Dobson and Rick Warren (A Purpose Driven Life Rick Warren) have both come out for Miers. I am told exceedingly reliably that Dobson was not at first happy, but has been under extraordinary pressure to come around to the view that Miers is acceptable. Even though he has, Dobson has yet to say "Miers will be great" without immediately following that up with a variation of "but I have my doubts."

Lastly, keep in mind that in 1981, Starr, Ed Meese, and others who are coming out for Miers also came out for Sandra Day O'Connor. Several were on record at the time saying O'Connor told them she was prolife.

I have increasingly come to the position that Miers will be better on abortion that O'Connor, but that's all I know about her. We'll see what comes out of the hearings, if it gets that far.

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Posted at 4:47pm on Oct. 8, 2005 Miers Cartoons & A3G

By AndrewHyman

Brace yourself. More here. Hat Tip: How Appealing. Also, don't miss A3G's story of how Miers was nominated, as told from a completely hypothetical anti-Miers point of view.

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Posted at 4:17pm on Oct. 8, 2005 <strong>Miers disses the Federalist Society</strong>:

By feddie

According to James Pinkerton of Newsday:

An ex-White House lawyer told me that Miers was shocked to discover the lawyers in the White House counsel's office were Federalist Society types, all of them scornful of the ABA - her ABA.

And according to the Knight Ridder Washginton Bureau:

In what appear to be some of her only public statements about a constitutional issue, Supreme Court nominee Harriet Miers testified in a 1990 voting rights lawsuit that . . . . she "wouldn't belong to the Federalist Society" or other "politically charged" groups because they "seem to color your view one way or another."

So this is how you pay back Federalist Society members for their support, President Bush? You nominate some ABA suckup who is openly hostile to the most important orginization in the legal conservative movement's history?!

Thanks for nothing, Dubya.

Professor Rick Garnett sums up my frustration with Miers and the Bush administration nicely:

I have to confess, though, that the recent reports (for example: here and here) about Ms. Miers's deprecating remarks about, and less-than-enthusiastic attitude toward, the Federalist Society are extremely frustrating. In my view, they also undercut the claim (which, again, I have made) that Ms. Miers is and should be regarded as, despite her lack of a paper trail or "movement" credentials, a conservative.

Too often, this Administration, prominent nominees, and even Federalist Society members nominated for important positions in government have treated the Society as if it were something out of "The DaVinci Code", or the ultra-secret gaggle of powerful reactionary Rasputins that some on the left imagine, or just a goofy band of train-spotters. In my view, this Administration and the conservative Senators, who owe the clear thinking and dedication to the rule of law of their best staffers, lawyers, and advisors in no small part to the Federalist Society, have an obligation to stop this silly "Federalist Society? Never heart of it!" pose, and forthrightly to endorse, defend, and praise the Society.

The Federalist Society has been ââ‚” as many honest, left-leaning law professors would concede ââ‚” an immense benefit to the intellectual culture and the jurisprudential debate in our law schools. It has supplied countless thoughtful, intelligent, conservative lawyers to the bench, the academy, the bar, and public service. It has provided an invaluable forum for a genuine exchange of ideas, and also some accountability for the American Bar Association and the American Association of Law Schools. Its events, debates, and panels are always diverse and provocative. In my view, few lawyers have done as much to promote thoughtful engagement with conservative and constitutionalist legal thinking as have, say, Eugene Meyer and Leonard Leo; few law professors have been as selfless in their work with students as, say, (Fed Soc members) Randy Barnett, Gerry Bradley, and Eugene Volokh.

Just as important, the Federalist Society has provided, in no small part, the intellectual heft for a large part of today's conservative movement in politics. For an Administration that owes its existence to this movement to, time and again, treat the Society like a goofy yearbook photo or an embarasing secret is more than irritating ââ‚” it is shameful. If the Federalist Society really were a politically useful but in fact weird and non-mainstream outfit, then perhaps the "Fed Soc? Who?" attitude would be understandable. But, if course, the Society and its ideas are ââ‚” among informed and thinking people, anyway ââ‚” entirely respectable and, while certainly conservative, entirely

"mainstream."

If Ms. Miers really does harbor the tiresome, skittish, establishmentarian, protect-the-guild wariness toward the society described in the accounts mentioned above ââ‚” rather than respect for its work, admiration for the vision of David McIntosh, Steve Calabresi, Spence Abraham, and others who founded the Society more than 20 years ago, and gratitude for the dedication of hundreds of law students today who often take real hits in order to stand up for and strengthen the Society and its intellectual mission ââ‚” then I am inclined to think that she has not earned (no matter what church she attends, no matter how good a person and impressive a lawyer she is, no matter how much she abhors abortion, no matter how loyal she is to this President, and no matter how Rehnquist-like her record turns out to be) conservatives' support.

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Posted at 3:54pm on Oct. 8, 2005 Specter on Miers

By feddie

Courtesy of the NYT:

Though Mr. Specter called Ms. Miers "intellectually able," he said she had a "fair-sized job to do" to become fluent in the language of constitutional law, which will be essential for senators who want to examine her judicial philosophy in deciding whether to confirm her.

"She needs more than murder boards," Mr. Specter, Republican of Pennsylvania, said in an interview, referring to the mock question-and-answer sessions most nominees use to prepare for their confirmation hearings. "She needs a crash course in constitutional law."

. . . .

Several Republicans, including Mr. Specter, said they steered clear of asking Ms. Miers questions about constitutional law. Mr. Specter, who said the timing of the confirmation hearings would depend in part on when Ms. Miers felt ready, said he initiated a discussion of the shifting standards the Supreme Court has applied in interpreting the Commerce Clause of the Constitution, but only to illustrate to Ms. Miers the kinds of questions she would face during her hearings.

"I did not ask her about it because I don't think she's ready to face it at the moment," he said. "Look, the lady was White House counsel dealing with totally other subjects until Sunday night when the president offered her the job. And Monday she's sitting with me. I'm not going to ask her questions which she hasn't had a chance to study or reflect on."

But Mr. Specter said that did not mean he would go easy on Ms. Miers at the hearings. "Absolutely not. It would be a disservice to the selection process and to her," he said. "She's got to win her wings."

Unbelievable.

Perhaps Ms. Miers should start her "crash course in constitutional law" with this book. I am sure the author would be more than willing to provide her with an advance copy. :)

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Posted at 2:40pm on Oct. 8, 2005 "She Will Leave a Lasting Mark"

By AndrewHyman

President Bush's Radio Address today dealt with the Miers nomination, and the whole speech is below the fold. Here's an AP report that summarizes the continuing controversy. Also, Slate has an interesting profile of Texas Supreme Court Justice Nathan Hecht, who is a close friend and supporter of Ms. Miers.

Good morning. This week, I nominated an exceptional individual to replace retiring Justice Sandra Day O'Connor on the Supreme Court of the United States. Harriet Miers is a remarkable woman and an accomplished attorney. She has wide experience in the courtroom and at the highest levels of government. And she will be an outstanding addition to our nation's highest court.

Harriet Miers was born and raised in Dallas, Texas, where she attended the public schools. When illness struck her family, Harriet went to work to help pay for her own college education. She stayed close to home in Dallas to attend Southern Methodist University, and received a Bachelor's Degree in mathematics.

She remained at SMU for law school and earned a place on the law review. After graduation, she was hired for a prestigious two-year clerkship for a federal trial judge. From there, she went on to an extraordinary career in private practice and public service and became a pioneer for women lawyers.

She was the first woman to be hired at her law firm, the first woman to become president of that firm, the first woman to lead a large law firm in the state of Texas, the first woman head of the Dallas Bar Association, and the first woman elected as president of the State Bar of Texas.

In her law practice, Ms. Miers handled hundreds of cases in state and federal courts, from massive commercial litigation to criminal cases to civil disputes. She served in local government on the Dallas City Council, and later held office in state government, as well.

As Ms. Miers rose through the legal ranks, she also put in long hours of volunteer legal work on behalf of the poor and underprivileged, and served as a leader for more than a dozen community groups and charities. Beginning in the 1990s, Harriet Miers was regularly rated one of the top 100 lawyers in America, and one of the top 50 women lawyers in the country.

Because of her skill and record of remarkable achievement, in 2001, I asked her to work in my administration. For the past five years, Harriet Miers has served our nation in critical roles, including White House Counsel, one of the most important legal positions in the country. As counsel, Ms. Miers addresses complex matters of constitutional law, serves as the chief legal advisor during regular meetings of the National Security Council, and handles sensitive issues of executive-congressional relations, among many other essential duties. She has led the effort to help nominate outstanding judges for the federal judiciary. She was in charge of the process that resulted in the appointment of Chief Justice John Roberts.

Harriet Miers would come to the Supreme Court with a background in private practice and high-government service, and this puts her in strong company. Indeed, since 1933, 10 of the 34 justices came to the Supreme Court directly from positions in the executive branch, such as the one Ms. Miers now holds. And no Supreme Court nominee in the last 35 years has exceeded Harriet Miers' overall range of experience in courtroom litigation, service in federal, state and local government, leadership in local, state and national bar associations, and pro bono and charitable activities.

Throughout her life, Ms. Miers has excelled at everything she has done. She's been a leader and a trailblazer for women lawyers, and her work has earned the respect of attorneys across the nation. I chose Harriet Miers for the Court both because of her accomplishments, and because I know her character and her judicial philosophy. Harriet Miers will be the type of judge I said I would nominate: a good conservative judge.

She shares my belief that judges should strictly interpret the Constitution and laws, not legislate from the bench. She understands that the role of a judge is to interpret the text of the Constitution and statutes as written, not as he or she might wish they were written. And she knows that judges should have a restrained and modest role in our constitutional democracy. Like Justice William Rehnquist and Justice Byron White, who were also nominated to the Supreme Court directly from legal positions in the executive branch, Harriet Miers will be prudent in exercising judicial power and firm in defending judicial independence.

When she goes before the Senate, I am confident that all Americans will see what I see every day: Harriet Miers is a woman of intelligence, strength, and conviction. And when she is confirmed by the Senate, I am confident that she will leave a lasting mark on the Supreme Court and will be a justice who makes all Americans proud.

Thank you for listening.

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Posted at 2:34pm on Oct. 8, 2005 Saturday open thread re: the Miers Nomination

By feddie

Have at it, folks.

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Posted at 11:00pm on Oct. 7, 2005 A Freaking Coherent Sentence

By AndrewHyman

Whatever may be your views about whether the Miers nomination ought to be withdrawn and/or rejected and/or praised to high heaven, we all want to stick to the facts, right? Of course we do. And one of the most appalling facts is that Ms. Miers apparently doesn't know the English language better than an eight-year-old. But appearances are deceiving. Consider this defective paragraph that the MSM and others have attributed to Miers:

The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs.

Looks like the grammar and syntax of a moron, right? Commenters over at Volokh are understandably concerned that she's redundant, and "can't even write a freaking coherent sentence in Standard English." I was concerned too. But, thanks to Virginia Postrel we have a scan of the original article, and lo and behold Ms. Miers has been misquoted. The actual article that she wrote says this:

The same liberties that ensure a free society make the innocent vulnerable to those who pervert rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of religion, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs.

So, it appears the woman is coherent after all. But not necessarily Supreme Court material. Perhaps far from it. Stay tuned.

UPDATE [10/8/05]: Just to clarify, this post is not intended to criticize Ms. Miersââ‚â„¢ intelligence. It's meant to defend it. And she may be very qualified. Stay tuned.

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Posted at 9:26pm on Oct. 7, 2005 Thin Gruel

By DanCT

Carol is right that Gingrich offered more in support of the Miers nomination than simply "trust the President" in his op-ed today. However, what struck me about the op-ed was how thin the other arguments are. He apparently realizes this and explicitly identifies "trust the President" as his strongest argument in support of the nomination:

And perhaps most important, Mr. Bush has worked closely with Ms. Miers every day since his days as governor. The president knows her and knows what kind of justice she will make.

In his three subsequent (and concluding) paragraphs, he elaborates on that theme:

Mr. Bush governs with a very straightforward methodology: He says what he's going to do. He does it. And then he does it again. This has been true with taxes, the war on terror and now with judges.

In both presidential campaigns, the president repeatedly promised to appoint justices like Clarence Thomas and Antonin Scalia to the Supreme Court.

With the president's knowledge of Ms. Miers, his stated commitment to rebalancing the judiciary and his conservative record - not only in appointing judges but on big decisions in general - conservatives should feel comfortable in taking the president at his word that he has just now delivered another nominee in that tradition.

To be fair, some of the points that Carol raises do deserve discussion.

(1) The President has a history of making excellent appointments to the federal courts ââ‚” and being willing to withstand controversy to do so.

This is simply a variation on the "trust the President" argument that is getting plenty of discussion already.

(2) In opposing the ABAââ‚â„¢s support of abortion, including taxpayer-funded abortion, Harriet Miers showed the kind of tenacity that suggests sheââ‚â„¢s ââ‚Å“not for turningââ‚? ââ‚” in contrast to the Supreme Court justices some conservatives fear sheââ‚â„¢ll resemble.

Her political views are not what are at issue. The question is her jurisprudence, which, in reality, we don't know a blasted thing about.

(3) Despite divisions within the Texas bar on the topic of abortion, Harriet Miers was able to win a consensus that the ABA should put the topic to a vote of the membership. (And such consensus building skills are important on the Court; even the most brilliant juristââ‚â„¢s impact is diminished if, by his behavior, he drives other potential ââ‚Å“concurrersââ‚? into dissent by his behavior)."

No doubt that a cordial, respectful demeanor and skill at consensus-building are important on the Court, but you've got to admit this is a pretty weak demonstration of those skills. Let's file this away in our minds and watch the hearings for more evidence of her consensus-building skills. Such demeanor and leadership skills are in indeed on display in the hearings, and it is one reason why Roberts shined and Bork fizzled. It also partly explains why the President hesitates with Luttig.

However, first things first. without good, solid, conservative jurisprudence, all the consensus-building skill in the world will not make her a good pick for the court. If she passes muster on jurisprudence, then details like demeanor and consensus-building skills would be icing on the cake. But, at this point, we know next to nothing about either her jurisprudence or demeanor.

(4) She has a diversity of experience ââ‚” and would be the only justice who didnââ‚â„¢t come straight from the bench. Iââ‚â„¢d add that even the fact sheââ‚â„¢s a trial lawyer is important. It means that she understands the difficulties in practical application of ââ‚Å“squishyââ‚?, balancing-test jurisprudence.

The same could be said about John Edwards, Peter Angelos, and a whole host of others whom we would not want to see on the court. If her judicial philosophy and temperament are solid, then we can think about "diversity" as possible icing on the cake.

At the same time, though, I think you'd agree that not all trial lawyers are immune from "squishy", balancing-test jurisprudence. We should judge Ms. Miers by the content of her own character rather than her group characteristics.

(5) Harriet Miers was instrumental in selecting conservative judicial nominees. For my part, Iââ‚â„¢d add that the President may well have become acquainted with her philosophy by hearing whom she thought merited nomination and why.

And Salieri could recognize Mozart as a great composer, but that didn't make Salieri himself a great composer!

We don't know Ms. Miers' role in selecting conservative judicial nominees. Gingrich mentions Priscilla Owen and JRB, but Harriet Miers was Assistant to the President and Staff Secretary then and may not have had any role at all. We do know that Mr. Gonzales has played an instrumental role in selecting judicial nominees for GWB, but I don't think anyone would be touting this as one of his strongest qualifications. Your addendum in (5) is once again a variation on the theme of "just trust the President" --- mightly thin gruel. By acknowledging it as his important argument, Gingrich punted.

BTW: Gingrich also missed a critical argument in his op-ed, viz. it is the President who nominates and his choice should be given great deference. However, the Senate's role is to provide checks against cronyism and corruption. I'm dubious that there'll be any finding of corruption, but the cronyism charge is real. Ms. Miers' personal friendship with the President undoubtedly played a major role in her getting the nomination, yet she is at best marginally qualified. Her qualifications should be closely scrutinized, and I hope she can pass with flying colors. Until we learn more -- a lot more -- skepticism is warranted.

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Posted at 9:06pm on Oct. 7, 2005 On the allegation of fraud...(which is garbage)

By krempasky

Quin posted mention of a story that's been making the rounds...and Beldar had his way with him in the comments. I'm going to reprint his comment in full - with a note: I'd have printed it too. Not because of my eagerness to smear Ms. Miers - but because: 1) I'm not a lawyer and 2) There's not a better place to have asked for an explanation. So, with due respect to Bill Dyer - easily my favorite legal blogger that goes quiet for months and then on a rampant socratic tear - I don't think there's any shame involved in asking the question in the hopes of getting the facts. And thanks to Bill, we did.

This, frankly, is an outrageous smear. And this website ought to be ashamed to be spreading it.

Strong words, I know, and not the sort of condemnation I usually level against conservative bloggers I genuinely respect. But the suggestion that some sort of fraud is imputable to Harriet Miers over this is ââ‚” well, itââ‚â„¢s more outrageous than I can adequately express without slipping into profanity.

Every major law firm in the country has been sued on grounds like these at some time or another. If you have a contrary impression, youââ‚â„¢re full of crap.

Why do law firms get sued in cases like these? For the same reason that banks, investment bankers, and insurance companies often do: Because theyââ‚â„¢re the deepest pockets left standing after a bad deal goes south.

Which firms pay out the biggest settlements? The very best ones. Why? Because theyââ‚â„¢ve been the lawyers involved in the biggest deals.

I am here to tell you, from my first-hand experience as a practicing lawyer from Texas, that during the hard times in the oil patch in the early 1980s, and during the S&L collapse around that same time, every major firm in Texas was sued repeatedly. Every one, without exception. Only a tiny, tiny percentage of those ever resulted in any proof of misconduct or impropriety. But they sure made life difficult for us. I still get a W-2 and a check for about $40 every year from a Dallas-based firm in which I was a partner in the early 1990s, as part of a refund over time out of some reserves set-aside that had been set up as part of some settlement. I have absolutely no clue what the underlying lawsuit was about, but whatever it was, Iââ‚â„¢m sure you could make charges against me with exactly the same credibility as the charges youââ‚â„¢re peddling against Ms. Miersââ‚â„¢ here ââ‚” that is to say, with ZERO credibility.

I know some of the lawyers who were on the plaintiffs side in this particular lawsuit, and theyââ‚â„¢re formidable. Iââ‚â„¢m sure that added a lot to the settlement value of the case ââ‚” i.e., what they could basically extort from the law firm. But look at the facts, folks:

No fraud or other misconduct on the part of the law firm was ever proved. That remained an unproved allegation, an accusation never tested by any judge or jury. The firm denied that it had committed misconduct; the settlement, as is universal in such matters, repeated that denial and made very clear that no admission ought to be implied from it.

The specific lawyers involved were apparently in a branch office, not in either of the firmââ‚â„¢s two main hubs (Dallas and Houston), and it appears that by the time of the settlement, theyââ‚â„¢d left the firm. Now, thereââ‚â„¢s always an argument to be made that the captain of any ship is responsible for his/her crewââ‚â„¢s misconduct. But if you want to draw inferences, Iââ‚â„¢d suggest that the appropriate one is that Ms. Miers and the other top management of the firm did such housecleaning as may have been necessary, if there was any misconduct on the part of those branch-office lawyers. Thatââ‚â„¢s a good thing, not a bad thing.

Unless youââ‚â„¢re similarly willing to ride out of town on a rail the top management from every major bank and securities firm in the country ââ‚” ââ‚â„¢cause theyââ‚â„¢ve all been sued, and all paid out money to settle such lawsuits ââ‚” you ought to rethink these allegations.

And ask yourself this: If youââ‚â„¢re a conservative in favor of tort reform and curbing litigation abuse, what in a Justiceââ‚â„¢s background is likely to make him or her more receptive to the need for such things than having been targeted with bogus lawsuits?

Shame, shame guys and gals ââ‚” you ought to know better than this, and if you didnââ‚â„¢t, you ought to have asked a lawyer who did.

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Posted at 8:42pm on Oct. 7, 2005 <strong>Judge Robert Bork--the godfather of the modern day legal conservative movement--calls Miers nomination a "disaster"</str

By feddie

Get the details here.

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Posted at 8:20pm on Oct. 7, 2005 Two More Thoughts

By Carol Platt Liebau

(1) I admire Ed Gillespie, but anyone who charges there is an element of "sexism" in any of this discussion -- by anyone on any side -- is just wrong. None of the people who are attacking Miers would have opposed Janice Rogers Brown, Priscilla Owens, or Mary Ann Glendon. There is some basis to the charge of elitism -- not necessarily because a lot of Miers opponents are, in fact, elitist, but because (as I wrote yesterday), "Some . . . of those who oppose Ms. Miers have done so by denigrating her legal skills and background. Thatââ‚â„¢s where the charge of elitism comes from."

(2) As an outspoken person myself, I'm sympathetic to arguments that nominations of those without extensive conservative public records are deeply unjust to those who "take the arrows" in the course of engaging in intellectual combat on behalf of our ideas. But . . . It's been speculated that this appointment may be geared to raising the "comfort level" of other justices (on the left) who may be considering retirement. Some justices might be more willing to retire if they could legitimately hope that their replacements would be a Roberts/Mier, rather than a Luttig/Brown, rather than declining to retire in the style of Chief Justice Rehnquist and Justice Thurgood Marshall, both of whom died while still on the Court.

Just a thought . . .

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Posted at 8:10pm on Oct. 7, 2005 Runner up to Miers: Judge Consuelo Callahan?

By feddie

That's what Robert Novak is reporting:

President Bush had advised senators that his probable choice for the Supreme Court was federal Circuit Judge Consuelo Callahan of California. Bush touted Callahan's diversity as a Hispanic woman, but she is liberal enough to be recommended for the high court by Democratic Sen. Charles Schumer.

Un-freakin'-believable.

Thanks to reader JusticeBrad for the heads up.

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Posted at 8:06pm on Oct. 7, 2005 More Than Just Trust

By Carol Platt Liebau

In this post below, it's suggested that the only rationale Newt Gingrich puts forth in his piece for supporting Miers is that we should "just trust the President." With respect, there are many more arguments than that, many of them meritorious:

(1) The President has a history of making excellent appointments to the federal courts -- and being willing to withstand controversy to do so.

(2) In opposing the ABA's support of abortion, including taxpayer-funded abortion, Harriet Miers showed the kind of tenacity that suggests she's "not for turning" -- in contrast to the Supreme Court justices some conservatives fear she'll resemble.

(3) Despite divisions within the Texas bar on the topic of abortion, Harriet Miers was able to win a consensus that the ABA should put the topic to a vote of the membership. (And such consensus building skills are important on the Court; even the most brilliant jurist's impact is diminished if, by his behavior, he drives other potential "concurrers" into dissent by his behavior).

(4) She has a diversity of experience -- and would be the only justice who didn't come straight from the bench. I'd add that even the fact she's a trial lawyer is important. It means that she understands the difficulties in practical application of "squishy", balancing-test jurisprudence.

(5) Harriet Miers was instrumental in selecting conservative judicial nominees. For my part, I'd add that the President may well have become acquainted with her philosophy by hearing whom she thought merited nomination and why.

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Posted at 7:56pm on Oct. 7, 2005 "Withdraw This Nominee"

By feddie

So sayeth Charles Krauthammer:

When in 1962 Edward Moore Kennedy ran for his brother's seat in the Senate, his opponent famously said that if Kennedy's name had been Edward Moore, his candidacy would have been a joke. If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her.

. . . .

But nominating a constitutional tabula rasa to sit on what is America's constitutional court is an exercise of regal authority with the arbitrariness of a king giving his favorite general a particularly plush dukedom. The only advance we've made since then is that Supreme Court dukedoms are not hereditary.

It is particularly dismaying that this act should have been perpetrated by the conservative party. For half a century, liberals have corrupted the courts by turning them into an instrument of radical social change on questions -- school prayer, abortion, busing, the death penalty -- that properly belong to the elected branches of government. Conservatives have opposed this arrogation of the legislative role and called for restoration of the purely interpretive role of the court. To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.

There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous.

It will be argued that this criticism is elitist. But this is not about the Ivy League. The issue is not the venue of Miers's constitutional scholarship, experience and engagement. The issue is their nonexistence.

Moreover, the Supreme Court is an elite institution. It is not one of the "popular" branches of government. That is the reason Sen. Roman Hruska achieved such unsought immortality when he declared, in support of an undistinguished Nixon nominee to the court, that, yes, G. Harrold Carswell is a mediocrity but mediocre Americans deserve representation on the court as well.

To serve in Congress, or even as president, there is no requirement for scholarship and brilliance. For good reason. It is not needed. It can even be a hindrance, as we learned from our experience with Woodrow Wilson, the most intellectually accomplished president of the 20th century and also the worst.

But constitutional jurisprudence is different. It is, by definition, an exercise of intellect steeped in scholarship. Otherwise it is nothing but raw politics. And is it not the conservative complaint that liberals have abused the courts by having them exercise raw super-legislative power, the most egregious example of which is the court's most intellectually bankrupt ruling, Roe v. Wade ?

. . . .

By choosing a nominee suggested by Senate Democratic leader Harry Reid and well known only to himself, the president has ducked a fight on the most important domestic question dividing liberals from conservatives: the principles by which one should read and interpret the Constitution. For a presidency marked by a courageous willingness to think and do big things, this nomination is a sorry retreat into smallness.

Spot on.

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Posted at 6:32pm on Oct. 7, 2005 <strong>Programming note</strong>:

By feddie

I'll be on the weekend edition of NPR's "All Things Considered" discussing the Miers nomination.

The interview lasted for approximately 15 minutes, so it will be interesting to see what the NPR folks choose to air.

I'll provide a direct link to the program after it airs and is archived on NPR's website.

[BTW, if you're wondering what in the heck this "feddie" guys sounds like, you can listen to an interview I did a while back with Catholic Answers (July 8th) on the future of the Supreme Court]

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Posted at 6:23pm on Oct. 7, 2005 Abe Lincoln on Substantive Due Process

By AndrewHyman

Honest Abe once said that the doctrine underlying the Supreme Court's most controversial social engineering cases is a load of crap. But, Lincoln put it a bit more delicately than that:

"The Constitution itself impliedly admits that a person may be deprived of property by 'due process of law,'" wrote Lincoln.

Nowadays, Supreme Court nominees are required to affirm their allegiance to the opposite proposition. Will Ms. Miers go along with this new trend, or will she go with the common sense of Lincoln? And why should we have to wait for the hearings to find out ?

I don't think Quin, Feddie, and others ought to be so sure that Ms. Miers won't align herself with Justices Scalia and Thomas, who have both agreed with Abraham Lincoln on this issue.

Incidentally, Lincoln wrote those words in 1858, apparently while preparing for a debate with Stephen Douglas in Jonesboro, Illinois. During that Jonesboro debate, Douglas was first up, and Lincoln was second up, in rebuttal. Douglas didn't give Lincoln a chance to discuss due process (or much else), but Lincoln did hold on to his notes for the debate. He left them to his most trusted aides who recorded them for posterity:

The Constitution itself impliedly admits that a person may be deprived of property by "due process of law," and the Republicans hold that if there be a law of Congress or territorial legislature telling the slaveholder in advance that he shall not bring his slave into the Territory upon pain of forfeiture, and he still will bring him he will be deprived of his property in such slave by "due process of law." And the same would be true in the case of taking a slave into a State against a State constitution or law prohibiting slavery.

Lincoln was right. And so was the U.S. Supreme Court when it unanimously admitted this in 1985:

[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.

Will Ms. Miers insist upon interpreting the Constitution in a way that is, "suggested neither by its language nor by preconstitutional history"? We have a right to know.

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Posted at 3:55pm on Oct. 7, 2005 Bad dream

By Quin

I had a wonderful dream. PResident Bush did something so wise that it left the Left speechless, while uniting thinkers on the Right as never before. From the Right, all the following were agreed: George Will, Bill Kristol, David Frum, Ramesh Ponnuru, Charles Krauthammer, Rich Lowry, Jonah Goldberg, Kathryn Lopez, Paul Weyrich, Professor Bainbridge, Sen. Sam Brownback, Sen. Trent Lott, the Third Branch Conference, Terrey Jeffrey, Richard Miniter, Bruce Fein, Peggy Noonan, Randy Barnett, Rush Limbaugh.... and many, many, many, many more. But then the dream, as dreams often do, turned bad. It turns out that the Left was silent only because they didn't need to say anything. The thinkers on the Rigt were saying everything that needed to be said, CRITICIZING President Bush. And they were right to say those things, because the president had pulled an incredibly dunderheaded move, and in many ways an offensive one, by betraying one of the most important beliefs of those on the Right, beliefs that so many of them had spent so many years supporting and working and bleeding for.

Then I woke up and found, to my dismay, that it wasn't a dream at all. The nightmare is a reality. The president has sold us out by, against the tenets of Fed 76 and against the example of the Roberts nomination and against the lessons of the Pryor, Scalia, Thomas and JRB nominations, putting forth somebody who is both underqualified AND less than able to assure anybody of her approach to constitutional jurisprudence.

The Miers nomination stinks. It ought to be withdrawn. And we should keep the pressure on to see that it is.

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Posted at 1:00pm on Oct. 7, 2005 Newt Punts

By DanCT

In his op-ed from today, Newt Gingrich writes:

With the president's knowledge of Ms. Miers, his stated commitment to rebalancing the judiciary and his conservative record - not only in appointing judges but on big decisions in general - conservatives should feel comfortable in taking the president at his word that he has just now delivered another nominee in that tradition.

Just trust the President?! That just doesn't fly anymore.

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Posted at 12:54pm on Oct. 7, 2005 Newt Gingrich: Conservatives Can Trust in Miers

By Carol Platt Liebau

Here's the piece (annoying registration process involved). I find a lot of merit in his arguments.

Miers was not my first choice. But in fairness, that doesn't necessarily mean she's a disaster -- nor is it a reason resolutely to ignore every argument in her favor.

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Posted at 11:49am on Oct. 7, 2005 "Weak Sisters"

By Carol Platt Liebau

Thomas Sowell makes an excellent case that Harriet Miers may be the best the rest of us could have hoped for, given the "weak sisters" in the Senate -- Arlen Specter and John Warner by name (but the term also encompasses Olympia Snowe, Susan Collins and Lincoln Chafee).

And by all means, let's remember John McCain -- who, this week, was probably singlehandedly responsible for forcing a run-off for an Orange County congressional seat, because of his endorsement of a candidate that the National Review quite correctly called a "Republican who favors partial-birth abortion, criticizes Social Security reform, and waffles on free trade." McCain's candidate won only won 16% of the vote -- but that was enough to hold the mainstream Republican at 46%, rather than letting him get to the 51% that would have sent him to Congress immediately.

With friends like this, who needs Democrats?

(And just to reiterate, as is noted below: National Review -- hardly a bastion of pro-Miers propaganda -- reports that the "Warren Burger" remark may have been taken out of context. )

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Posted at 10:57am on Oct. 7, 2005 News Clips, Fri. 10/7

By Marshall Manson

Confirmation Politics

Democrats let the right lead attack on Miers nod

Charles Hurt and Ralph Z. Hallow, Washington Times

Democrats Savor Miers Infighting

John Harwood, Wall Street Journal (Subcr. req.)

Right's attacks on nominee 'despicable,' Harkin says

Jane Norman, Des Moines Register

'Right Wing' Questions about Miers are 'Sexist,' Dem Charges

Jeff Johnson, CNS News

Miers, Supporters Try to Rally

Jesse Holland, Associated Press

White House Tries to Quell a Rebellion on the Right

Elisabeth Bumiller, New York Times

Miers Makes Rounds On Hill

Shailagh Murray and Charles Babington, Washington Post

Staunch conservative to serve as Miers' guide

Kathy Kiely, USA Today

Reaction to the Nomination

Christians Concerned About Miers' Views

Rachel Zoll, Associated Press

Analysis: Right Sees Miers as Threat to a Dream

Dan Balz, Washington Post

Analysis: The State of the Union Between the Right and the White House Turns Frosty

Dana Milbank, Washington Post

Santorum Says Little on Miers Nomination

Kimberly Heffling, Associated Press

Foe of Abortion, Senator Is Cool to Court Choice

Sheryl Gay Stohlberg, New York Times

Senate Abortion Foe Reserves Judgment on Nominee

Reuters

Key Conservatives Demur on Miers

Maura Reynolds, Los Angeles Times

Court picks rile Hispanics

Mark Silva, Chicago Tribune

Miers Background

Miers backed minority power, aid

Stephen Henderson, Knight Ridder Newspapers

Obscure Texas Case

Of Court Nominee

Jess Bravin, Wall Street Journal (Subcr. req.)

Church Changes Led Miers to Join a Splinter Group

Scott Gold and J. Michael Kennedy, Los Angeles Times

Experience needed? The long history of nonjudge justices.

Warren Richey, Christian Science Monitor

Questions Linger on Role of Miers in a Contract to Run the Texas Lottery

Ralph Blumenthal, New York Times

As Texas lawyer, Miers was always prepared

Toni Locy, USA Today

Opinion & Editorial

Commentary: Faith-Based Hypocrisy

E.J. Dionne, Washington Post

Commentary: Withdraw This Nominee

Charles Krauthammer, Washington Post

Commentary: Conservatives can trust in Miers

Newt Gingrich, Baltimore Sun

Commentary: McCain’s Blunder

Mark Levin, National Review

Commentary: Harriet who?

Thomas Sowell, Townhall.com

Commentary: Divining Harriet Miers

Ellen Goodman, Seattle Times

Commentary: Turmoil inside the Beltway

Tony Snow, Townhall.com

Commentary: Miers's qualifications

Kevin Martin, Boston Globe

Commentary: A timid and tepid pick

Mona Charen, Townhall.com

Commentary: Hurricane Harriet Downs Power Lines Across the Beltway

Daniel Henninger, Opinion Journal

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Posted at 2:28am on Oct. 7, 2005 Miers: "Warren" is My Favorite Justice

By Ryan K

Via Washington Post:

Leahy asked her to name her favorite Supreme Court justices. Miers responded with "Warren" -- which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade. Miers said she meant Warren Burger, the sources said.

If this exchange is true (remember Durbin's false Roberts recusal rumor?), my guess (excuse) is Miers knew she couldn't say Thomas or Scalia and she didnââ‚â„¢t want to look naive, so she just blurted out ââ‚Å“Warrenââ‚? because that is a name that popped in her head as an old-timer Justice who she subconsciously thought held stature. Iââ‚â„¢m surprised an experience trial lawyer would utter an answer to a sensitive question without significant prior reflection...she should have said, ââ‚Å“I donââ‚â„¢t have oneââ‚? or ââ‚Å“I havenââ‚â„¢t given it enough thoughtââ‚?.

Miers is probably not a Supreme Court buff. However, it is valuable to have previously studied how particular Justices applied (or didn't apply) a textualist framework...especially if you adopt Justice O'Connor's law clerks and your opinions are partially written by a liberal lesbian AIDS activist. Luckily, a tight textualist judicial philosophy is straightforward compared to the the logic acrobats and mutli-levelled inferences required of liberal activist judges.

(Hat tip: alert ConfirmThem readers)

updated: 9:00 a.m.

Lopez at Bench Memos heard WaPo took the quote out of context.

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Posted at 1:16am on Oct. 7, 2005 "Very Strong Views of What's Right and Wrong"

By Carol Platt Liebau

Everyone relax. No one is arguing (or has argued) that Harriet Miers was the "most qualified" candidate to sit on the Court.

But for me, the sine qua non of an acceptable justice is (1) a strict constructionist/originalist judicial philosophy and (2) the character to maintain it after elevation to the Court.

Still hoping and waiting for more information on the former, but there's reason for hope about the latter (aside from the fact that any prominent female professional who's openlyl pro-life can't be excessively worried about public opinion).

Here's a quote from Harriet Miers in the 1996 Texas Lawyer (HT: Hugh Hewitt):

I'm not universally liked by everyone because I have very strong views of what's right and wrong, and I take my positions seriously and I fight for them strongly. And the role on the council was different in the sense that you really, in that arena, have to take the positions you feel are in the best interest of the city. And on a variety of very controversial issues, I felt very strongly about them and took a very aggressive position, and as to some of the council members, that made me unpopular because they were on the other side of those issues."

More extensive excerpts at Evan Schaeffer.

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Posted at 11:42pm on Oct. 6, 2005 The Gang

By NateCT

Like most, at least on this page and at my home blog (Southern Appeal), I'm not impressed with the President's choice of Miers as the replacement for retiring Justice O'Connor. That said, perhaps, at least according to this essay by Mark Levin, some of the blame for the pick (and when I imply this seems to be the easy way out and that a controversial pick was avoided for that very fact) should be placed at the feet of, in this instance, the Republican members of the Gang of 14, who thwarted the attempts of the "nuclear option" which would thus guarantee that a nominee, like a Luttig, wouldn't get through.

N.B. If I may add, totally unrelated with regard to Miers, GO BRAVES!

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Posted at 7:45pm on Oct. 6, 2005 Senator Dan Coates? Are you freakin' kiddin' me?

By feddie

I just saw him on Fox News.

This is the guy President Bush picked to shepherd Miers through the Senate?

He could barely remember her name (It's Miers, not Mier, senator).

Suddenly, the president's selection of Miers is starting to make sense.

Hey, Mr. President, remember those guys over at OLC? You know, the ones who provided you with first-class nominees for the district and circuit court judgeships. Yeah, I'd let them start steering the ship again, if I were you.

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Posted at 7:14pm on Oct. 6, 2005 Fraud?!?

By Quin

Somebody posted this in "responses" to an earlier post, but it didn't receive much attention. I have no idea what to make of it, or of the two related columns attached on the same site. But it should give us all pause. Oh -- and by the way, I was a big Saints fan, and it was the Saints who drafted Russell Erxleben with their first choice in the draft one year. In the pros, he was an utter dud -- he was always wide left!

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Posted at 4:26pm on Oct. 6, 2005 Thank You, John Fund

By Carol Platt Liebau

This is exactly right:

Conservatives should start to realize the fun and political gain that liberals are having at their expense. While skepticism of Ms. Miers is justified, the time is fast approaching when such expressions should be muted until the Senate hearings begin. At that point, Ms. Miers will finally be able to speak for herself. And those on both sides of the political spectrum will be able to make a more informed judgment.

Read it all here.

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Posted at 2:45pm on Oct. 6, 2005 A Response

By Carol Platt Liebau

In response to the post immediately below: If those of us in the conservative movement want to fight among ourselves over the Miers nomination, it's our right. But we must realize that, as a result, there's going to be a lot of gleeful (and, it goes without saying, inaccurate) coveraged by a delighted MSM.

I couldn't agree more that this isn't an internecine war between social conservatives and some other kind. In fact, there are social conservatives of good conscience in good standing on both sides. And it isn't about any kind of religious bigotry against Harriet Miers.

The real divide isn't even between those who oppose and those who support Ms. Miers, in my view. At the moment, the divide is between those who oppose Ms. Miers now, and those who want more information before attacking or are willing to support her unless they learn something disqualifying. Any of those positions are perfectly comprehensible.

The problem is that some -- not all, some -- of those who oppose Ms. Miers have done so by denigrating her legal skills and background. That's where the charge of elitism comes from (and from comments like this one, rightfully mocked by the plain-spoken Beldar). And it's unfortunate, given (as I noted below), that many of them were some of the same people who honorably, and correctly, defended Justice Thomas from spurious charges that he was underqualified for the Court.

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Posted at 2:36pm on Oct. 6, 2005 Artificial divide

By Irishlaw

Slate's John Dickerson frames the current split among Republicans as "the churchgoing masses" against the "whiny Beltway intellectuals." This is so much nonsense, but the media seems to be warming to the theme -- and the administration is happy to provide the narrative:

"This is classic elitism," says a senior administration official of the GOP opposition to the Miers nomination. "We often blame the left for it, but we have it in our own ranks. Just because she wasn't on a shortlist of conservatives who prepared their whole life for this moment doesn't make her any less conservative â₦ and just because she hasn't penned op-eds for the Wall Street Journal doesn't mean she hasn't formed a judicial philosophy."

Wow. Is this really the line the administration wants to be pushing -- an expedient populism in the face of legitimate concerns about a nominee to the Supreme Court? It appears so, and what's worse, many people (here and around the blogosphere) have already accepted it completely. The only problem is, it's not true. Many of those expressing concerns about Harriet Miers's lack of writing (or even any public, or private, speaking) on constitutional issues aren't anywhere near the Beltway -- e.g., Professor Bainbridge is in L.A., Feddie's in Macon, Ga. Many are religious themselves and either have no problem with, or are themselves, evangelicals -- e.g., Bainbridge, Feddie, Frum, Ponnuru. As John at Powerline points out (again, since it's been done in many places over the last few days, including here), any one of these people would have been happy to support an evangelical for the Court, if he or she displayed the intellectual heft that the Supreme Court undeniably demands. It's possible that Harriet Miers might display such talent at her hearings, of course (in which case, great), but the larger point is that we don't know that yet. And we should.

It's hard to take the attempts at forcing a divide seriously -- who would have thought that people like Ponnuru would be accused of being insufficiently socially conservative? For myself, I've been reading "Focus on the Family" for a decade; I've worked at the Family Research Council on pro-life matters; until six weeks ago I lived in Ohio (happy to belong to the small Republican club and Christian Legal Society at my law school) -- I'm just about as socially conservative as they come. Since when did I, or people like me, fit under the "whiny Beltway elite" heading? This is not a smart tack for the administration to be taking, or for conservatives who care about the Supreme Court to be embracing.

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Posted at 2:33pm on Oct. 6, 2005 The Importance of Being Straightforward

By Carol Platt Liebau

It's time for the Bush Administration to start giving conservatives some more information about Harriet Miers. Of course, one political calculus would be that anything making the Miers nomination more palatable to conservatives would "upset" the liberals.

Well, so be it. At this point, the President has bigger problems with his base than he does with the Democrats. Chances are that even if a fair amount of very favorable information (from a conservative perspective) comes out, the Dems aren't going to complain about it -- because they aren't going to want to gamble that the President would choose another nominee more to their liking. And in the meantime, there would be more criteria for assessing the quality of the nomination.

In any case, one of the arguments against Ms. Miers that's just not credible is the "best and brightest" approach. I stand second to no one in my admiration for Justice Thomas -- he is a great justice and a great man. But when he was nominated to the Court, he had served only a short time (about a year) on the D.C. Circuit, before that having served as head of the EEOC, assistant secretary of education, a corporate lawyer and an aide to Senator Jack Danforth. For my part, I think those are stellar credentials, along with his having been an assistant attorney general for the state of Missouri (my home state). But few would have argued at the time that they rendered him the most qualified pick for the Court when distinguished jurists of long standing like D.C. Circuit Judge Laurence Silberman were passed over.

The smears about Justice Thomas' credentials were simply another form of liberal opposition to his ideas. He was a fine choice then, and is a magnificent justice now. As I recall, neither George Will nor many of the other conservatives who have heaped disdain on Ms. Miers' intelligence and experience express any reservations about Justice Thomas based on his credentials, and rightly so. Our confidence in him has been well borne out by the quality of his opinions.

The difference? People felt that they "knew" Justice Thomas and the way he approached the law. And here, once again, the fact is that the "underqualified" arguments are nothing more than a smoke-screen for opposition to Ms. Miers because people (this time, conservatives) don't know her -- and, not knowing her, fear that she isn't a strict constructionist. Those concerns are valid ones, and are shared widely within the conservative movement. But those who have opposed Ms. Miers from the get-go owe it to the rest of us to be straightforward about why.

And the President owes it to all of us to give us the information to help make an informed decision.

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Posted at 2:19pm on Oct. 6, 2005 Dan Coats to serve as Miers' sherpa

By Marshall Manson

Fred Thompson had to return to work on his show, so the White House today announced that former Sen. Dan Coats (R-IN) will serve as Ms. Miers nomination "sherpa." The full AP story is below the fold. The story (and thus, presumably, the White House) puts a lot of emphasis on Coats' conservative credentials.

Ex-Indiana senator to work as Miers' adviser

ASSOCIATED PRESS

WASHINGTON (AP) President Bush on Thursday tapped former Indiana Republican Sen. Dan Coats to help shepherd Supreme Court nominee Harriet Miers through the Senate's confirmation process.

Coats, who resigned in February after nearly four years as the U.S. ambassador to Germany, will fill an unpaid role similar to that of former Sen. Fred Thompson during Chief Justice John Roberts' confirmation proceedings.

``Senator Coats will be working closely with the nominee and serving as a public advocate for her,'' White House press secretary Scott McClellan said. ``He will help advise her throughout the process. Senator Coats' role will be to attend meetings with senators on Harriet's courtesy visits.''

The choice of Miers, a veteran lawyer and White House aide who has never been a judge and therefore has no record of judicial decisions has worried some Republican senators, anti-abortion activists and others who question the depth of her conservative views.

As a senator, Coats pushed legislation to restrict abortion, tried to eliminate the National Endowment for the Arts because of grants it made to artists he said mocked God, and led the opposition to allowing gays in the military.

Coats ``is a well-respected senator, respected on both sides of the aisle,'' McClellan said. ``We're delighted to have him as part of our team.''

Coats, now a member of a Washington lobbying firm, was a congressman from northeastern Indiana until being appointed to the Senate when Dan Quayle resigned to become vice president in 1989. He won statewide elections in 1990 and 1992, but did not seek a second full term in the 1998 election.

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Posted at 1:34pm on Oct. 6, 2005 "Muzzling our best and brightest"

By feddie

One of the primary problems with the president's stealth "strategery" when it comes to SCOTUS nominations.

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Posted at 1:25pm on Oct. 6, 2005 In this case . . .

By feddie

"I told you so" cuts to the quick.

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Posted at 1:22pm on Oct. 6, 2005 Colson, Dean, Nussbaum, Quinn, Davis

By Quin

Okay, what do John Dean, Chuck Colson, Bernard Nussbaum, Jack Quinn and Lanny Davis have in common with Harriet Miers? They were all White House counsels, of course. Does ANYBODY here think that any of these people, by virtue of being White House counsel, were qualified for the Supreme Court?!? Or isn't it more likely that if Clinton had tried to appoint Lanny Davis to the high court, EVERY SINGLE person on this web site would have been yelling at the top of their lungs that Davis wasn't anywhere NEAR qualified for the job? Well, the same goes for Harrier Miers. It has NOTHING to do with elitism -- look at the list of other acceptable judges, and you'll see a wide variety of schools they went to. It has EVERYTHING to do with proven experience dealing with issues of the Constitution. I would even argue that a supremely respected History or Gov't/PoliSci professor, one who specialized in constitutional studies and had written extensively on the Constitution and on Madison, etc., to great acclaim, would be more qualified for the high court than Harriet Miers is. Can Harriet Miers knowledgeably discuss the important issues raised by Saenz v Roe? What does she think of Clarence THomas' separate opinion in it concerning the applicability of privileges/immunities? Does she even have a clue? Maybe so -- but we should know she has a clue already. She shouldn't be a cipher. And if we are supposed to trust her "heart" rather than her brain, as the president suggested, we already are in Feinstein territory, as in "Tell me what you feel about things as a husband and a father." That's why the president's press conference made things worse, not better. Trusting somebody's heart is pure, unadulterated cr@p. And it is an insult to all those who supported John Roberts on the explicit grounds that the president is deserved deference IF his pick is brilliant, super-qualified, and eminent in the field of constitutional law. Indeed, it's an insult to all conservative who care about the courts for the sake of law based on right reason. Reasoning is crucial. If Miers votes "right," but she can't explain her vote on paper with any more persuasiveness than is evident in the logical mush offered consistently by A. Kennedy and S.D. O'Connor, then she will be a disaster. Meanwhile, she remains a crony, in the very sense warned against by Hamilton. Senators should have no compunction about opposing her.

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Posted at 1:11pm on Oct. 6, 2005 Miers and Steinem?

By feddie

Thoughts?

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Posted at 1:08pm on Oct. 6, 2005 Another O'Conner?

By DanCT

David Frum has a biting post about Harriet Miers on David Frum's Diary at NRO this morning. The whole entry deserves a read, but two of his comments in particular are troublesome.

First:

"[In] the case of Grutter v. Bollinger, a challenge to the constitutionality of preferential treatments for minorities in education[,] many in the administration wanted to take a strong stand in favor of color-blindness. In the end, the administration faltered and argued that racial preferences are okay, up to a point. It is hard to imagine a more central issue to modern legal conservatives. Where was Miers? On the wrong side."

Second:

"'She failed in Card's office for two reasons,' the official says. 'First, because she can't make a decision, and second, because she can't delegate, she can't let anything go. And having failed for those two reasons, they move her to be the counsel for the president, which requires exactly those two talents.'"

Obsession with detail and inability to make a decision are exactly the characteristics that lead to to meandering, hair-splitting technical decisions like Grutter (which found that racial discrimination in law school admissions o.k.) and Gratz (which was issued at the same time but found that racial discrimination in undergraduate admissions is not o.k.) that make for muddled law. The difference between the two cases is that the discrimination was more clearly defined in Gratz. Essentially, the twin rulings are that it's fine to say, "We discriminate based on race because we want diversity," but illegal to say, "We discriminate based on race by using the following formula...We do this because we want diversity."

Imagine it is 1954 and Brown v. Board of Education comes before the court. Instead of a "brisk, non-technical and unexpectedly unamimous opinion running only ten pages" and deciding unamibiguously that separate is inherently unequal, suppose that the fictitious 'Justice Harry Myers', who was indecisive and detail-obsessed, wrote the decision for a 5-4 court: "In Kansas and South Carolina, the segregation of the schools is o.k., but in Virginia and Delaware it is not. Different conditions prevail in the different areas, so narrowly tailored segregation is o.k. If you have any questions about whether the segregated schools in your city are unconstitutional or not, please consult us again. We'll let you know." Please! We need a Justice who is willing and able to make clear decisions, not one who is indecisive and looks to make both sides happy.

We know very little about Harriet Miers' judicial philosophy or temperament, but Frum raises some important questions. These questions can't be answered by her simply expounding on judicial philosophy in the hearings (which she is unlikely to do with any depth anyway); they need to be answered with evidence in her record. I'm still withholding judgment, but the case for her appointment has been weak thus far and the White House has done little to strengthen it since the announcement Monday morning.

The rumors and innuendo that are swirling around Ms. Miers suggest that she does not have a well-honed ability to think clearly and see her way through the loads of crap that would inevitably be thrown at her as a Supreme Court justice. Until we learn more, though, these are just rumors and innuendo. However, given her close ties to the President and her marginal credentials, there must be intense scrutiny of her judicial philosophy (originalist or, e.g., "Civil Rights Act be damned! Evolving standards of PC thought dictate racial discrimination for another 25 years") and judicial temperament (detail-obsessed indecision and impulse to make both sides happy or clarity, courage, and principled decisions).

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Posted at 10:39am on Oct. 6, 2005 News Clips, Thurs. 10/6

By Marshall Manson

Lots of coverage today of conservative reaction to the Miers nomination. Make sure to read the Baker story from the Post and the Hallow story from the W. Times. And there are several must-read commentaries today. Novak, Broder, and -- yes -- Coulter (if only for entertainment).

Reaction to the Nomination

Dobson Questions His Support for Miers

Associated Press

Conservatives Confront Bush Aides

Peter Baker and Dan Balz, Washington Post

Republican activists slam Miers nomination

Ralph Hallow, Washington Times

New Questions From the Right on Court Pick

David Kirkpatrick, New York Times

GOP Doubts Build Over Court Choice

Maura Reynolds and Tom Hamburger, Los Angeles Times

Conservatives still worried about Miers

Kathy Kiely, USA Today

Conservatives wary of Miers

Gail Chaddock, Christian Science Monitor

GOP senators say they need more information from Miers

Rick Klein, Boston Globe

GOP Grumbles Get Louder

Deborah Orin, New York Post

Miers wins over some Republicans

Charles Hurt, Washington Times

Gang: 'no alarm bells'

Johnathan Allen and Alex Bolton, The Hill

Fight Over Nominee Heats Up

Paul Kane, Roll Call (Subcr. Only)

Tancredo 1st in GOP to oppose Miers

Ann Mulkern, Denver Post

Behind the Scenes

Rove played an active role in selection of Miers

Joseph Curl, Washington Times

Analysis: The Sales Calls Begin on Capitol Hill, but Some Aren't Buying

Dana Milbank, Washington Post

Analysis: Sen. Brownback is key to nominee Miers’ fate

Tom Curry, MSNBC

About Harriet Miers

Quiet Force for Change in a Male-Dominated Era

Lynette Clemetson and Jonathan D. Glater, New York Times

Friends, family offer fuller picture of Miers

Richard Willing, USA Today

Texas Justice, With Ties to Bush and His Supreme Court Choice, Serves as Her Spokesman

Simon Romero and Edward Wyatt, New York Times

Few Clues to Miers' Convictions

Los Angeles Times

Miers Wealth Shrank During Time in D.C.

Jennifer Loven, Associated Press

Opinion and Editorial

Commentary: From Miers, Telling Words

David Broder, Washington Post

Commentary: The Miers Misstep

Peggy Noonan, Opinion Journal

Commentary: Bush's unpleasant surprise

Robert Novak, Townhall

Commentary: This is what 'advice and consent' means

Ann Coulter, Townhall

Commentary: Hey Democrats, election's over

Robert M. Knight, USA Today

Commentary: Without the facts, there's no consent

Martin Garbus, Los Angeles Times

Commentary: What qualifies one for the Supreme Court?

Johnathan Turley, USA Today

Commentary: Crony cachet

Bruce Fein, Washington Times

Commentary: Stealth choice

Donald Lambro, Washington Times

Commentary: Another Republican for Roe?

Francis Wilkinson, New York Times

Commentary: The Coffee-and-Donuts Supreme Court Nominee

Michelle Malkin, Human Events

Commentary: Why should conservative Senators support Miers?

Terrence Jeffrey, Townhall

Will the conservatives blow a stealth nomination?

Ross Mackenzie, Townhall

Commentary: Supreme Splits

Tom Chapman, Townhall

Commentary: Harriet Miers is Conservative Enough

Horace Cooper, Townhall

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Posted at 7:26am on Oct. 6, 2005 <strong>"The Case Against Harriet Miers: The Baseball Analogy"</strong>:

By feddie

Professor Bainbridge is on a roll, folks.

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Posted at 12:33am on Oct. 6, 2005 Just the Facts, Please

By Carol Platt Liebau

Judging from this Washington Post article, it sounds like there was a hot time in the old town on Wednesday.

That's not a bad thing. It's time that those putting Harriet Miers forward understood (1) the depth of anger among conservatives and (2) that we need more information than the general platitudes that have accompanied Supreme Court nominees like John Roberts. No, not commitments on how she would rule on cases -- but some insight as to how and why the President decided she should be the pick and why she'd be a good one. And it goes without saying that a "message" has been sent -- should yet another seat open -- about what kind of nominee Republicans are hoping for.

I want to give Harriet Miers a chance. If she has to be opposed, it should be on the facts. But if she's to be supported, we need some facts on that, too.

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Posted at 9:39pm on Oct. 5, 2005 Setting the Record Straight

By Carol Platt Liebau

Interesting post by Erick below.

Here's a sentence that really jumped out at me: "What is truly aggravating for me is the condescension of some (though definitely not all) who support the nomination at those of us who either object to it or are otherwise unhappy with it. The attitude seems to be that since we have been given what we want, we should be happy. "

And to it I would just say two things: One is that it's quite difficult to pinpoint who will "support the nomination" since so few of us know so little about Ms. Miers at this point. Rather, I would say that the relevant distinction is between those of us who are ready to oppose the nominee and the President now, and those of us who are, at least, willing to wait to find out more about his nominee and to give her a chance to answer some questions.

Second, I think it's very difficult to find any conservative who was not somewhat "unhappy" about the nomination at some time. There are very few who haven't admitted that Ms. Miers wasn't their top choice. And I can only speak for myself here, but my attitude isn't "that since we have been given what we want, we should be happy." Rather, since we don't know that we haven't been given what we want, perhaps we should try to find out more rather than indulging in "shoot from the hip" histrionics, as some commentators have.

Finally, to the extent that there's been "condescension" by anyone, I think it's probably clear that, at a minimum, it's run both ways. If there's anything that's disappointed me, it's the discovery that some conservatives (not all those who oppose Ms. Miers, however) can be as parochially elitist as any of the liberals with whom I went to school.

At both college and law school, there were plenty of lefties who would have simply assumed that a woman who went to a non-top tier law school, spoke with a Southern accent, hadn't taught or sat on the bench (or otherwise displayed "excellence" as some pundits would define it), and became a born-again Christian was per se an intellectual "lesser light" -- presumptively unfit to sit on the nation's highest court.

It's been a surprise and a disappointment to me that many conservatives labor under the same assumptions, without even giving Harriet Miers a chance. And however disappointing President Bush's administration has been in some particulars (campaign finance reform and the rest), his judgment about judges has been excellent.

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Posted at 8:57pm on Oct. 5, 2005 Filling in the Blanks in the Miers Nomination

By AndrewHyman

The hearings on the Miers nomination probably won't get under way for several weeks. Yet, many people in the GOP are leery and not inclined to wait for the hearings to make up their minds. I'm not one of those people, but certainly their concern is understandable given that the Supreme Court has virtually become a superlegislature. So here's a modest suggestion. Why not ask if Ms. Miers would be willing to provide written answers now to all of the questions that the Judiciary Committee put to John Roberts?

Regardless of whether Ms. Miers is willing to do that now, I would urge patience and open-mindedness pending the hearings. I don't see any indication that she's unqualified, especially in view of some of the characters on the bench now. And those of you who are demanding to know what her overarching judicial philosophy is, keep in mind that Judge Roberts didn't exactly detail any coherent judicial philosophy, beyond being humble, restrained, modest, and all that. Ms. Miers could well turn out to be the best of all possible nominees, so let's not jump to conclusions.

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Posted at 8:40pm on Oct. 5, 2005 A Present Indicator of Future Success

By Erick

The President is to be congratulated by Democrats for one thing. He has certainly divided the party. The problem is that he has divided his own party.

The Hugh Hewitt's of the world are ready to trust the President and support the nominee. The Ramesh Ponuru's of the world are unhappy with the nomination. What is truly aggravating for me is the condescension of some (though definitely not all) who support the nomination at those of us who either object to it or are otherwise unhappy with it. The attitude seems to be that since we have been given what we want, we should be happy. But, Miers is only what we want on one vote that we know of (if we trust the President). What about being what we want consistently over time?

Frankly, some of us are not happy trusting the President given his signing of BCRA after saying it was unconstitutional, given his threats to veto spending legislation that never materialized, given his handing over education reform to Teddy Kennedy, given his amnesty immigration proposal, and given his prescription drug bill. I'm always willing to give this President the benefit of the doubt, but this nomination is too important for "trust me, you'll see."

Here is one problem I have with Harriet Miers. My guess is that she is personally pro-life, just like so many Democratic senators say they are. But, I also guess that she hangs around with a group of people where the issue of life is not a defining issue and who think that overturning Roe really wouldn't accomplish anything, so what's the big deal (I hang out with those sorts of people myself). Afterall, Bush says he is prolife, but he has surrounded himself with many people who don't care a great deal about the issue and with a number of pro-choice people, including his wife who is good friends with Miers.

When life is the central issue for so many in the Republican party and the President has 55 votes in the Senate (okay, really probably 50 or 51) and he needs his full base behind him, this just doesn't make a lot of sense.

Another problem I have is that I don't want a nominee centered around her "voting the right way" and "trusting the nominator." Okay, she'll vote right on life -- let's take the President at his word. What about Kelo? How would she have voted there? What about Lawrence? What about Lopez? What about the assisted suicide case? What about . . .? If she had a discernable judicial philosophy, we would have an idea. But we don't. All we know is that we must trust the President who tells us that on a checklist of issues, Miers will check the right box. What about the issues that aren't on the checklist? What about the issues that do not exist now, but will in ten years? By what standard are we now to form an opinion by which we can predicate our current support of her? To which judicial philosphy is Harriet Miers anchored so that she will avoid drifiting like Anthony Kennedy? For now, the President seems to tell us we'll know it when we see it, but trust him.

Miers, like me, has probably never spent a lot of time analyzing, arguing, or even thinking about the flaws with Roe and Doe from a constitution perspective. She may have thought about the outcome and may dislike the outcome, but it was the process by which those opinions were formed that give us the problem. Without a clear understanding of that process and arguments against that process of constitutional thought, she may vote right, but will the outcome of one vote be a present indicator of future results too?

Trust is too weak a standard when so much is at stake. And those on the right who are willing the trust the President should at least be willing to recognize that the rest of us have legitimate concerns about giving a lifetime appointment to Harriet Miers.

Cross posted at RedState.

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Posted at 8:20pm on Oct. 5, 2005 A crony is still a crony

By Quin

No, Mr. President, we're not going away. You have violated Federalist 76. You are trying to shove down our throats a person who is way under-qualified for the job. You have chosen cronyism over merit. You offer no intellectual defense of your choice, but instead a pathetic "Trust me, I know her heart." You may get your way. You may not. But you have split your strongest supporters, while pleasing nobody in particular -- except yourself. And you did it peevishly and petulantly, knowing that the choice was not worth trumpeting. You announced Roberts in a primetime press conference, because he was worth boasting about. Yo, purse-lipped, announced Miers while the West Coast was still asleep at 5 a.m., because you knew the announcement needed to be a fait accompli before rumors got out and it became obvious how much of a betrayal it was. In effect, you said:"Here's a betrayal: Live with it." This tough-guy act, from the Veto-Less Wonder, is a sham. It reminds me of the last time you told conservatives to "Shove it," which was at 5 a.m. Eastern time on a November morning, when you called the last few GOP holdouts to twist their arms, after your henchmen cheated by holding the vote open for three hours and (reportedly) offering bribes/inducements to Nick Smith (which that great American resisted), to vote for the single worst domestic law actually put into effect in my adult lifetime, the Medicare prescription drug boondoggle. That was a disgrace, and so is this nomination.

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Posted at 5:51pm on Oct. 5, 2005 More Response To Will On Miers

By Lorie Byrd

John Hinderaker at Power Line posted the following regarding George Will's column on Miers and on Miers' nomination in general:

I think Will is way off-base on this one. I donââ‚â„¢t think Miers was one of the best nominees Bush had available, but no one asked my opinion (or Willââ‚â„¢s). The bottom line is, the President gets to appoint Supreme Court justices. Miers is easilyââ‚“very easily, in my opinionââ‚“within the range of qualified nominees that it would be improper for the Senate to reject. I think her qualifications are better, for example, than Ruth Ginsburgââ‚â„¢s were. I think it would be very foolish for Republicans to start campaigning for Senators to refuse Miers confirmation, on the theory that we would then get someone better. If Bush gets another nomination, we probably will get someone about whom I am more enthusiastic, but in the meantime, Miers is the Presidentââ‚â„¢s nominee and she ought to be confirmed.

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Posted at 5:29pm on Oct. 5, 2005 A Voice of Reason

By Carol Platt Liebau

This piece by Tony Blankley on the Miers nomination is a must-read. Key quotes:

" It could have been so much more. But it is probably enough. And in politics, when we probably get enough -- we should be thankful. "

" Victory may not be heroic, but it will be ours. "

A very wise man.

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Posted at 2:39pm on Oct. 5, 2005 Responding to Ramesh

By Carol Platt Liebau

Over at National Review, Ramesh Ponnuru responds to my post from yesterday, this part in particular:

I hope that everyone who is denouncing her has personally read the work and are intimately acquainted with the life histories of Luttig, Alito, McConnell and all the rest of the judges that we were hoping for. Because if they havenââ‚â„¢t, they are instead just relying on the conservative opinion leaders whom we all respect, who have assured us that theyââ‚â„¢re the ââ‚Å“bestââ‚? choices.

Ponnuru notes:

But there's a difference between having numerous people who know the ins and outs of constitutional law and the right convictions on it vouch for someone and having a president do it. Partly the difference is between dispersed knowledge and centralized knowledge. Plenty of conservative academics and lawyers would have vouched for Michael McConnell and did vouch for John Roberts.

The question is whether one needs people "who know the ins and outs of constitutional law" in order to identify someone who is a (1) strict constructionist and (2) likely to have the character to withstand pressure to move to the left (which, as far as I'm concerned, are the two absolutely indispensable qualities in a justice). I'm not sure that one does, particularly if, in the course of time spent with Ms. Miers during the judicial search process, the President has had ample time to see the kind of judges/judging she admires and to hear why. In terms of the character/predictability issue, I'd note that the President has spent more time with Ms. Miers than many of the other contenders' strongest adherents have with them.

As to the "difference is between dispersed knowledge and centralized knowledge": Certainly, it would be preferable (and most reassuring) if prominent conservative legal experts were intimately acquainted with Ms. Miers and willing to vouch for her as they did for John Roberts (although, as I recall, many were vouching more for his intellect rather than his judicial philosophy). But in the end, this "dispersed vs. centralized" knowledge argument comes down to the fact that "we" don't "know" Miers. And although that in itself is suboptimal and unfortunate, it's not dispositive proof that she is therefore unacceptable -- unqualified, weak and the second coming of David Souter. It means that "we" need to take time to get to "know" her -- so that if objections must be forthcoming, they're based on fact rather than foreboding.

Ponnuru then goes on to divide those who are "vouching for Miers' legal conservatism" into categories:

Bush, who doesn't strike me as someone whose determinations on this specific point should inspire great confidence. . . . People in Bush's employ. People who are very close to being in his employ--e.g., people who were brought into the administration's deliberations about the nomination on the de facto condition that they would sign off on and defend whoever was chosen. And, then, finally, there are people who don't have much firsthand experience of Miers but are, in my view, placing too much weight on the previous groups' assessments.

The issue of the President vouching for Miers is addressed above -- and to it, I would only add that to the extent he has been involved in selecting his appeals court judges, his judgment has been excellent. To the extent that Miers, too, has been involved in that project -- well, that's reassuring. (If she hasn't been, that's worth knowing, but we can't blame her for the administration's stance on affirmative action cases and other matters without crediting her for the judge picks unless we know, for a fact, that she was involved in the former and not the latter.)

The second category of "vouchers" is to be expected. But on the third, I think Ponnuru is a bit unfair to people like Jay Sekulow -- who does, after all, have his own credibility and reputation to maintain, both of which are likely to suffer if he signs off on a Souter redux simply as the condition of having been "brought into the administration's deliberations about the nomination."

As for the final category, to the extent that it includes people like me, let's be clear: I'm not "vouching" for Miers' credibility, but I do note that there are those whose opinions are worth hearing who are. Accordingly, I'm willing to wait to see how she performs before adjourning my fainting couch, smelling salts clutched firmly in hand.

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Posted at 2:26pm on Oct. 5, 2005 Response To George Will

By Lorie Byrd

Eugene Volokh has posted Reginald Brown's response to George Will's column on Miers:

George Willââ‚â„¢s column on Harriet Miers and the President is both unfair and sloppy. He begins by suggesting that the President is uninterested and incapable of making sophisticated judgments about the Court and judicial philosophies. This charge is patently unfair. The President picked John Roberts, and has a stellar first term record of selecting conservative judges for the appellate bench. There hasnââ‚â„¢t been a liberal in the bunch with the exception of Roger Gregory and Barrington Parker, both of whom the President obviously nominated as part of an early political compromise that got Roberts and others on the circuit bench. This is a man who almost lost the Presidency because of the liberal activism of the Florida Supreme Court. He understands full well the power of the Court and has been serious about his appointments in the past...

...Willââ‚â„¢s fourth argument is the most dangerous and absurd. He suggests Miers shouldnââ‚â„¢t be approved because she hasnââ‚â„¢t shown a "talent" for "constitutional reasoning" honed through years of "intense interest" and practice. Judging takes work, but the folks who think "constitutional reasoning" is a talent requiring divination, intense effort and years of monastic study are the same folks who will inevitably give you "Lemon tests," balancing formulas, "penumbras" and concurrences that make your head spin. The President sees through that mumbo jumbo and recognizes that good Justices are the ones who focus on the Constitutionââ‚â„¢s text, structure and history and who call balls and strikes. Bush is in favor of demystifying the Court and the Miers choice is part of that effort. Will seems to be buying into the "Nine Wisest Men" mythology that is a root cause of the Courtââ‚â„¢s aggrandizement of power over time.

Read the whole thing.

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Posted at 2:03pm on Oct. 5, 2005 Snatching defeat

By Quin

What galls me about this pick is that it says to the world (FALSELY) that conservative jurisprudential ideals, acted on and defended in public, are too embarrassing to be worth fighting for, so we need therefore a stealth candidate and need to trust a president that a nominee's "heart" -- which has nothing, nada, zilch, to do with ANYTHING in constitutional jurisprudence -- is good. Right at a time when lib Dems were on the run -- the Dem senators split 22-22 on Roberts, unsure what to do, etc -- we fail to follow through on the point we just won that somebody can be brilliant and tremendously well credentialed AND conservative/originalist. Instead, we are asked to settle for Bush's assurance that his nominee will vote correctly -- NOT reason correctly, but that her heart is in the right place so she will vote correctly. That's an affront to everything we've worked for, and an affront to sound reasoning and to constitutional principles, and it snatches defeat from the jaws of victory.

On the higher plane of defending textualism/originalism, we were on the verge of victory. And on the plane of cruder politics, we just so happened to have a winning hand, because the textualist approach just so happens to also produce, in major cultural issues of our day, results that are popular. Pro pledge of allegiance. Against judicially imposed homosexual marriage. Against partial birth abortion and for parental consent. For reasonable displays of the Ten Commandments. Firmly against governmental takings of private property for other private use (a BIGGIE right now!). And so on. The idea is not to demagogue these issues. Indeed, some of these aren't, in the greater scheme of things, tremendously important to everyday life. But the point is that with an independently qualified, brilliant, articulate nominee -- one who achieved his/her status WITHOUT a boost deriving from long personal association with the president -- we had the best chance in our lifetimes to explain why proper REASONING also leads, in these cases, to popular results. In other words, we could tie the principles to the results in a fair, non-demagogic, persuasive way, and thus break the back of the "evolving Constitution" Left.

Instead we are asked to trust the heart of a stealth nominee who is loyal to Bush, quite literally, to a fault, rather than known primarily for fealty to solid jurisprudential principle.

The nomination stinks to high heaven, NO MATTER HOW Miers will end up "voting" on the court if she is confirmed.

It is a betrayal, pure and simple. And we must continue to let the WHite House know, in no uncertain terms, that it IS a betrayal -- even if, when push comes to shove, conservative senators decide to reluctantly vote for her, which is certainly not a given.

But to secure conservative Senate votes, the White House should understand clearly that it is now in OUR debt for sticking by it, not that we are going along because we are in its debt.

For now, the jury should still be out, and the outcome very much in doubt.

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Posted at 12:25pm on Oct. 5, 2005 More Than One Kind of "Justice"

By Carol Platt Liebau

Last night, I wrote:

In fact, one of the most notable traits I've observed in some of the so-called "high power" thinkers is a tendency toward intellectual vanity -- and it's a tendency that can be all too easily exploited by those who, to further their own agendas, want to see judges overstep the boundaries of their constitutional role.

The point is that not every excellent, strict-constructionist justice need be excellent for precisely the same reasons.

Today, Marvin and Peter Olasky make a related point here.

And one more thing -- everyone who has been so quick to label Harriet Miers as intellectually lacking: Maybe she is. We'll see. But how do they know now?

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Posted at 12:11pm on Oct. 5, 2005 <strong>Questions to be posed to Harriet Miers during her SJC hearing</strong>

By feddie

Here's one (with several subparts) that I personally would like to see her answer:

Ms. Miers, what are your views on the incorporation doctrine? Do you believe that the men who wrote and ratified the 14th Amendment intended for most of the amendments comprising the federal Bill of Rights to be applied against the States? If so, do you think that the "liberty" component of the Due Process Clause of that amendment is the appropriate jurisprudential foundation for incorporation; or do you instead agree with those legal scholars who believe the Privileges or Immunities Clause is the constitutional provision upon which incorporation must/should rest? On the other hand, if you believe the incorporation doctrine is a constitutional fiction, is it your view that the doctrine must be nevertheless be preserved on stare decisis grounds?

Bonus question I: Do you agree with Justice Thomas that it is time to rethink whether the Establishment Clause should be incorporated against the States? See, e.g., Elk Grove Unified Sch. Dist. v. Newdow (Thomas, J., concurring) ("I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation. Moreover, as I will explain, the Pledge policy is not implicated by any sensible incorporation of the Establishment Clause, which would probably cover little more than the Free Exercise Clause").

Bonus question II: Is the right to bear arms, as articulated in the Second Amendment, an individual right, and if so should it be incorporated against the States?

Does anyone else have a suggested question for Miers? You never know who might be reading this blog.

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Posted at 12:03pm on Oct. 5, 2005 One Overnight Transformation

By Lorie Byrd

I wonder how many of those who reacted negatively when they first heard of the Miers nomination will go through the transformation that one Polipundit reader did:

My personal journey ... has been from:

- OUTRAGE (on hearing the announcement)â₦I was all dressed up and ready for a FIGHT!! Bring it on! JRBâ₦JRBâ₦JRB (or LUTTIG 3 times, etc)

- PISSED OFF (most of the day yesterday)â₦looked like weakness on Bushââ‚â„¢s part, and capitulation to Reid (who had HER on HIS list!)

- RELUCTANT ACCEPTANCE (very late yesterday)â₦OK, Bush got more votes than I did, and heck, I worked my ass off for the man! So yeah, he gets to choose.

- TEPID SUPPORT (early this morning) ââ‚Å“ya know, this MAY not be so bad after all?!?"â₦the more I learn of HER and the people who OUGHT to be opposing her, the more I like her!

- SOLID SUPPORT (lunchtime)â₦whatââ‚â„¢s not to like? Not MY pick, but a great pick nonetheless. And, I must admit, I had NEVER heard of Roberts before HIS nomination! JRB, I freely admit, had been my pick all along because I live in California, and she had been SPLENDID out here!

- ENTHUSIATIC SUPPORT (where I AM and remain)â₦STRATEGERY! Frankly this is a HUGE win for us! Harry Reid has recommended an Evangelical Christian who has SEEN THE LIGHT regarding abortion, etc. NARAL and NOW will implode over this!

Comment by Justrand

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Posted at 11:49am on Oct. 5, 2005 George Will Jumps Ship

By AndrewHyman

George Will says that we should all presume Harriet Miers is unfit to be approved by the Senate. At least Will's willing to hear what she says at the hearings.

But consider whether Will's column itself deserves a presumption of approval. He says that, if 100 people had been asked their advice, Miers' name probably would not have appeared on the list. Funny, Bush did consult with 100 people --- called Senators --- and that's where he got the idea to nominate Miers. Anyone listening to the complaints from Mr. Will should keep in mind the huge role that Mr. Will himself played in giving the Senate minority a veto over nominations. See here.

Before going any farther, I want to emphasize that I'll be withholding judgment until the hearings, and I have a good deal of respect for many of Mr. Will's writings. But he is wrong to ask for a presumption against Ms. Miers. If it turns out that she's a fan of substantive due process (unlike Scalia and Thomas), or is as obsessed with stare decisis as John Roberts appeared to be, then I may jump ship too, but it's way too early to expect that to happen.

Mr. Will asks us to be biased against Ms. Miers because the President signed the McCain-Feingold campaign finance bill .... which the Supreme Court subsequently held to be constitutional. I'm no fan of that bill, and I have my doubts about its constitutionality, but give me a break. Does Will present any information about where Ms. Miers stood on that issue? No.

Will ridiculously charges that Miers has no known interests and talents pertinent to the Court's role. As if being White House Legal Counsel is a blue collar job. And running a law firm and the Texas State Bar exempts a lawyer from the dictates of the U.S. Constitution.

Mr. Will says that the wisdom of presumptive opposition to Miers' confirmation flows from the fact that constitutional reasoning is a talent acquired by years of practice sustained by intense interest. We will see at the hearings if she possesses these. I suspect that several current Supreme Court justices do not.

Will also doesn't like the way Robert Jordan, former ambassador to Saudi Arabia, spoke to Fox News about the Miers nomination, and Will accuses the White House of probably enlisting Jordan for advocacy. Sure, let's attribute one guy's remarks on Fox News to George Bush, and in turn attribute them to Harriet Miers, and thus kill her nomination. Will just seems to be in a bad mood.

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Posted at 11:00am on Oct. 5, 2005 An unfair charge

By Irishlaw

I've been a little surprised by the charges of elitism being thrown at those of us on the right who are questioning Harriet Miers's credentials. The skepticism is not owing to her diplomas, but to an overall paucity of documents or speeches or other evidence that would indicate that she has thought seriously about and wrestled with the kinds of constitutional issues that she would be deciding on the high court. QD at Southern Appeal makes the defense of an "elitism" that asks for a little more than two legal newspaper articles as proof of conservative judicial philosophy:

No one should be an elitist in the sense of judging someone on the basis of his credentials. Having an Ivy-league degree is no guarantee of intellectual or moral fortitude (most of the NYT reporting staff has Ivy league degrees, after all, as does a certain French-looking Mass. Senator). But it does seem to me that we should be elitists in the sense of valuing and promoting excellence, that which is of the highest quality. We should demand that our leaders (whether they be judicial, executive, or whatever) be men and women who have developed the skills and virtues that make them capable of being great.

I wrote on my own blog yesterday that matriculation at Harvard, prior experience as a judge, or membership in the Supreme Court bar shouldn't be absolute requirements for the bench. As a happy graduate of two non-Ivies and someone who would have been glad to support, say, a Justice Garza from Notre Dame, I can hardly have an Ivy-only preference! On the other hand, the fact that Harriet Miers has no apparent record of seriously engaging constitutional law issues - gives cause to wonder exactly what type of judge Miers would be - what would her philosophy be? We don't know. But at this stage, we shouldn't be having to guess.

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Posted at 10:15am on Oct. 5, 2005 News Clips, Wed. 10/5

By Marshall Manson

Make sure to check out the various opinion pieces at the bottom, and the three news artictles on Ms. Miers' faith journey.

President Defends Supreme Court Choice at Press Conference

Bush Defends Supreme Court Pick

Peter Baker and Shailagh Murray, Washingon Post

Bush Fends Off Sharp Criticism of Court Choice

Elisabeth Bumiller and David Kirkpatrick, New York Times

Bush defends his pick for court

Richard Benedetto and Judy Keen, USA Today

W. Calms Miers Ire

Deborah Orin, New York Post

Nominee 'Best Person I Could Find,' Bush Says

Maura Reynolds, Los Angeles Times

Bush reassures conservatives on Miers nod

Bill Sammon and Charles Hurt, Washington Times

Bush: Miers Shares Constructionist Views

Tom Raum, Associated Press

'This Woman Deserves to Be on the Bench,' Bush Tells the Nation

Brian McGuire, New York Sun

President defends pick amid criticism

Nina Easton, Boston Globe

Bush defends Miers to the right

David Jackson, Dallas Morning News

Miers' Turn to Faith

In Midcareer, a Turn to Faith to Fill a Void

Edward Wyatt and Simon Romero, New York Times

Religious conversion redefined nominee's worldview

Julia Duin, Washington Times

Strong Grounding in the Church Could Be a Clue to Miers's Priorities

Michael Grunwald, Jo Becker and John Pomfret, Washington Post

More Miers Background

Miers Called an Opponent of Abortion

David G. Savage and Scott Gold, Los Angeles Times

Miers' views on homosexual rights scrutinized

Guy Taylor, Washington Times

Miers Took a Nontraditional Path to Success

Faye Fiore, Los Angeles Times

Miers Helped Lead Texas Law Firm

David Koenig, Associated Press

Views, Actions of Miers Drawing Scrutiny

Donna Cassata, Associated Press

Miers has backed wide executive role

Charlie Savage, Boston Globe

Democrats' Document Demands

President, Citing Executive Privilege, Indicates He'll Reject Requests for Counsel's Documents

Richard Stevenson, New York Times

Share info on Miers, Salazar tells Bush

M.E. Sprengelmeyer, Rocky Mountain News

Conservatives Not All Behind Miers Yet

GOP presidential hopefuls cautious in stance on Miers

Johnathan Allen, The Hill

Senators look for best angle on Miers

Kathy Kiely, USA Today

Analysis: The Right Sees a Strong -- and Wrong -- Signal

Ron Brownstein, Los Angeles Times

A Pick That Blurs Party Lines and Stalls 'Rapid Response'

Michael A. Fletcher and Thomas B. Edsall, Washington Post

Conservatives Split Over Bush Nominee

Jesse Holland, Associated Press

Opinion and Editorial

Commentary: Harriet Miers

Sen. John Cornyn, Wall Street Journal

Commentary: Can This Nomination Be Justified?

George Will, Washington Post

Commentary: Her roots aren't Ivy League

Marvin Olasky and Peter Olasky, Los Angeles Times

Commentary: High Court Politics

Tony Blankley, Washington Times

Commentary: Trust, but Verify

Cal Thomas, Washington Times

Commentary: ...the unknown

Paul Greenberg, Washington Times

Commentary: The Right's Dissed Intellectuals

Harold Meyerson, Washington Post

Editorial: Bush's place on the spectrum

The Hill

Commentary: SCOTUS Rumble

Jonah Goldberg, National Review

Commentary: Wrong vibes from the right

Ellis Henican, Newsday

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Posted at 9:45am on Oct. 5, 2005 David Frum nails it

By feddie

I was all set to come into the office this morning and outline in even further detail my beef with the Miers nomination. Thankfully, David Frum saved me the trouble of doing so:

The president was visibly angry at his press conference yesterday. Nobody likes criticism, especially when it's justified. But was he convincing? He sure did not convince me. The closest thing he offered to a defense - praise for his nominee for hailing from outside the "judicial monastery" - entirely misses the point. Senator John Cornyn elaborates on this defense in the Wall Street Journal this morning, and makes it clearer than ever what is wrong with it:

"[S]ome have criticized the president because he did not select an Ivy-League-credentialed federal appeals court judge for the open seat."

The problem with Harriet Miers is not that she lacks formal credentials, although she does lack them. Had the president chosen former Solicitor General Theodore Olson, or Securities and Exchange Commission chair Christopher Cox, or former Interior Department secretary Gail Norton, nobody would complain that they were not federal appeals court judges.

Had the president named Senator Jon Kyl (LLB, University of Arizona) or Senator Mitch McConnell (LLB, University of Kentucky) or Edith Jones Clement (LLB, Tulane), nobody would be carping at the absence of an Ivy League law degree.

Those who object to the Miers nomination do not object to her lack of credentials. They object to her lack of what the credentials represent: some indication of outstanding ability.

The objection to Miers is not that she is not experienced enough or not expensively enough educated for the job. It is that she is not good enough for the job.

. . . .

And she will remain not good enough even if she votes the right way on the court, or anyway starts out voting the right way. A Supreme Court justice is more than just a vote. A justice is also a voice.

The president's defense of Miers in many ways amplified the problem. His case for her boils down to: "Because I say so" and "She really is a nice person."

But "because I say so" is not an argument. It is an assertion of pure authority. And have not the great conservative legal minds of the past three decades warned again and again that the courts have gone wrong precisely because they have relied too much on authority and too little on argument?

She really is a nice person" likewise is a statement grounded on feeling rather than thought. And don't conservatives object to legal liberalism precisely because it is based on sloppy emotion rather than disciplined thought?

Believe it or not, legal conservatism is a powerful and compelling school of thought. The Scalias and the Thomases and the Rehnquists have had their effect not by forcing their positions on the country by brute vote-counting, but by persuasion. That's why, to pick out just one example, that Bush v Gore was decided by a 7-2 majority and not lost 3 to 6.

This president has never believed much in persuasion. He believes that the president should declare and that the country should then follow. But judges cannot and should not do that. He should have chosen a justice who could lead by power of intellect, and not because she possesses 1/9 of the votes on the supreme judicial body

It has been conservatives who have been most up in arms about the Miers nomination. But really this is a nomination that disserves not just conservatism, but the whole country.

All Americans are entitled to know that those judges who exercise the power of judicial review have thought hard and deeply about the immense power entrusted to them. If the courts were just about getting the votes, then the preisdent should have chosen Dennis Hastert for the Supreme Court. But to change American law, it's not enough to win the vote count. You have to win the argument. And does anybody believe Harriet Miers can win an argument against Stephen Breyer?

Yesterday's White House talking point was that Miers "reflects the president's judicial philosophy." OK. But can she articulate it? Defend it? And persuade others of it - not just her colleagues, but the generations to come who will read her decisions and accept them ... or scorn them. That's the way this president should have thought about this choice. And that's the way the Senators called on to consent to the choice should be thinking about it now.

Exactly. That's the point, folks. We conservatives must not fall into the same mindset as liberals by conflating law and politics. Moreover, why should we be expected to settle for someone who will simply vote the right way? We should expect and demand that the president nominate brilliant legal thinkers to the SCOTUS, like Justices Scalia and Thomas (as he did with Chief Justice Roberts). After all, isn't that what he promised us in two presidential campaigns?

I realize that many of you believe that law nerds like me are simply being snotty and elitist about Miers, but that is simply not the case for all of the reasons Frum outlines supra. And there is a practical reason why it is important to nominate someone who has demonstrated an intellectual commitment to originalism, textualism, federalism, etc. over a lengthy period of time: A person with that type of background is unlikely to "grow" in office. It is one thing to speak in general platitudes (as Miers has done) about "strictly" interpreting the Constitution or not "legislating from the bench." It is quite another to have clearly outlined---over the course of one's legal career---a coherent judicial philosophy that has been tested and refined in the legal marketplace of ideas. For better or worse, the current state of constitutional jurisprudence is such that one must possess the highest degree of expertise in this area to be a respected voice on the Supreme Court (see, e.g., Chief Justice Roberts); and I see nothing in Ms. Miers's record which indicates to me that she is a member of that elite group.

For the good of the republic, President Bush should pull his nomination of Harriett Miers. She is a nice lady and a good lawyer, but she is simply not qualified to sit on the Supreme Court of the United States.

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Posted at 7:19am on Oct. 5, 2005 <strong>"Opposition more from the right than from left"</strong>:

By feddie

I am quoted in this editorial by the Macon Telegraph re: the Miers nomination:

President George W. Bush, in nominating his White House counsel, Harriet Miers, to fill the seat on the Supreme Court left vacant by Sandra Day O'Connor, has thrown a wrench at some of his staunch supporters. In the words of Steve Dillard, who runs the conservative blog Southern Appeal (http://southernappeal.blogspot.com/ ), the president's choice of Miers was "Un-freakin'-believable."

Dillard, a local attorney and member of the Federalist Society went on to say, "I can't help but feel as though the president and the Republican Party are wimping out in refusing to have a national debate on the importance of judicial restraint, originalism, textualism, federalism, etc."

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Posted at 1:31am on Oct. 5, 2005 A Misguided Argument

By Carol Platt Liebau

I respect Professor Bainbridge as a man of formidable intellect. And there are legitimate arguments to be made against Harriet Miers. But I think some of his declarations set forth here are deeply unfair. In particular, I take exception to this:

Miers may well be a smart lawyer. But she went to the #52 ranked law school in the country and then headed up a Dallas law firm that one of my colleagues who practiced in Dallas tells me got big but was not in the first rank.

So what? Graduating from a "#52 ranked law school" doesn't mean that one has an intellect in the 52nd rank -- any more than teaching at what some elitist "school snobs" would consider a "second-tier" law school means that one has a second-tier intellect. Brilliant lawyers (and academics) can come from any school -- and so can mediocrities.

Same goes for the crack about the law firm -- and given that Ms. Miers came through that firm in pre-sexual harassment, pre-flex and pre-mommy track time, the fact that she rose from being the firm's first female hire to its president tells me that her performance had to be at least as good as that of a regular partner in a firm deemed by those inclined to categorize in this manner as one of "the first rank."

He concludes by noting that, "Call me an intellectual snob if you want, but while I don't insist on Ivy League credentials, I do insist on documented high power thinking."

Well, all I can say -- based on my years at Princeton University and Harvard Law School -- is this: "Documented high power thinking" isn't always what it's cracked up to be. There were plenty of "high power" thinkers where I went to school . . . but even given the little I know of Miers, I would trust her with the Court before I would trust many of them.

In fact, one of the most notable traits I've observed in some of the so-called "high power" thinkers is a tendency toward intellectual vanity -- and it's a tendency that can be all too easily exploited by those who, to further their own agendas, want to see judges overstep the boundaries of their constitutional role.

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Posted at 11:54pm on Oct. 4, 2005 Scrappleface on Cronyism

By AndrewHyman

Confirmthem crashed for a while this evening, but now we're back in business, and I hope we'll be able to prevent these glitches in the future. Anyway, Scrappleface is providing some humor mixed with wisdom, about the Miers nomination. Here's an excerpt:

Bush Fails to Pick Stranger for Supreme Court

by Scott Ott

(2005-10-03) -- A clearly disappointed President George Bush this morning announced that he had failed to locate a total stranger to replace retiring Supreme Court Justice Sandra Day O'Connor, and was forced to settle for someone he knows and trusts.

In a news conference to nominate White House Counsel Harriet Miers, 60, as an associate justice on the high court, Mr. Bush admitted, "I don't get out much, and I don't personally know very many total strangers. So, I had to settle for someone whose views, personality, intellectual abilities and work habits were familiar to me. I hope the American people will eventually find it in their hearts to forgive me."

I don't think the charge of cronyism will stick. I don't think that Ms. Miers is a political hanger-on, and I don't think she's been nominated without regard to her qualifications.

UPDATE: Here's a list of Supreme Court justices who had no prior judicial experience. Hat Tip: Bashman.

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Posted at 8:09pm on Oct. 4, 2005 Reid: I May Be Against Her After I was For Her

By AndrewHyman

The Democratic Senate Minority Leader is thanking the President for nominating Miers, but emphasizing he may vote "no" anyway. I agree that it's best to remain uncommitted until the hearings.

Meanwhile, one of our readers emailed with this:

You are all prejudging Harriet Miers based on a mountain of ignorance. I know Harriet Miers, so I know how wrong you are. Itââ‚â„¢s obvious that you donââ‚â„¢t intend to give her a fair shake. But ponder whether this might just be the case: Bush had a choice between naming a conservative originalist who could be readily confirmed, or naming a conservative originalist who could bring about a bloody Senate battle. Which choice is the most intelligent?

Actually, the opinion here at confirmthem has not been monolothic. Carol hasn't criticized Miers, and I have also expressed hopes that she will offer more encouraging testimony than Judge Roberts did. I view the concept of "legislating from the bench" as being pretty much synonymous with the concept of "substantive due process" (which is the bogus doctrine that underlies many of the Court's most controversial cases, from Roe v. Wade to Lawrence v. Texas). Justices Scalia and Thomas are on record against the doctrine, Judge Roberts expressed support for it, and we'll see what Ms. Miers does.

President Bush gave a press conference today, defending the nomination. An excerpt is below the fold.

Q Thank you, sir. You said a few minutes ago that you're proudly conservative, but there was a lot of hand-wringing when you made your nomination yesterday on Harriet Miers. Bill Kristol said he was "depressed and demoralized," and Rush Limbaugh said it was a "nomination out of weakness." What do you say to these critics, specifically, and how can you convince them that she is as conservative as Justices Scalia and Thomas?

THE PRESIDENT: I guess I'll start over. I hope they're listening. First, she's a woman of enormous accomplishment. She is -- she understands the law, she's got a keen mind, she will not legislate from the bench. I also remind them that I think it's important to bring somebody from outside the system, the judicial system, somebody that hasn't been on the bench and, therefore, there's not a lot of opinions for people to look at.

Harriet Miers will testify; there's going to be a lot of attention paid to her testimony. First of all, she will go meet with the senators, individually, and then she'll answer questions. And people will get to see not only her strength of character, but will get a sense of her judicial philosophy. I'm hopeful she'll get confirmed, and then they'll get to read her opinions. And what I believe, and what I know is important, is that she doesn't change over the course of time. And had I thought she would change, I wouldn't put her on there. And I recognize that if you pick somebody from outside the judicial system -- in other words, you pick somebody that's not a judge and they didn't -- hadn't written a lot of opinions -- then people are going to guess, and they're going to speculate.

I don't have to guess and speculate about Harriet. I know her character, I know her strength, I know her talent, and I know she's going to be a fine judge.

Bill.

Q Thank you, Mr. President. You've spoken a lot today about knowing Ms. Miers and knowing her history and knowing what she's about. Earlier this summer, you stood up for Rafael Palmeiro when you were asked about whether or not you thought he took steroids, and then he tested positive. Do you think he should face perjury charges?

THE PRESIDENT: I think that steroids ought to be banned from baseball. And Jackson asked me -- sitting right over there -- about his statement, and I said I believed him when he testified. But let me be very clear about this. Steroids ought to be banned from baseball. And I'm sure the Congress will look as to whether or not he broke the law.

Hmm. Have we got a Pameiro situation here?

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Posted at 7:27pm on Oct. 4, 2005 Harriet Miers -- Political Play of the Year?

By Erick

I disagree with the nomination of Harriet Miers. I think there are more qualified conservatives out there. And, I agree with Armando to a large extent (quick, is that a pig flying?). John Roberts' career tells me that conservatives should not have to hide in the closet until after they are on the Supreme Court. By picking a stealth nominee, Bush has, I think, set us back a bit.

But, from a political point of view, let me say that I think this has the potential to be a brilliant move by the President. Let's just consider this perspective for a minute.

I start from the premise that Miers is exactly as Bush says she is --- a prolife conservative who will interpret the law faithfully to the original meaning of the constitution and not legislate. We know that Democrats, including Harry Reid, recommended Miers for the position.

So, Bush went with their recommendation. Now we are in this position: If the Democrats accept Miers they will most likely have put a female Scalia on the bench. If the Democrats now reject Miers, the President can make the case that he (A) consulted the Democrats; (B) took one of their own recommendations; (C) saw them reject she who they recommended; (D) so now he feels free to go with someone like Alito or Luttig or Batchelder or Corrigan.

Bush has been thrown into a political briar patch and, while I disagree with the nomination based on her stated qualifications, it just might be that this is the play of the year. One way or the other, it is one hell of a political gamble.

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Posted at 6:49pm on Oct. 4, 2005 A Grave Injustice?

By Carol Platt Liebau

Respected legal scholar and Committee for Justice Co-Chairman Ronald Cass thinks that "Harriet Miers's Critics Are Off-Track."

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Posted at 6:37pm on Oct. 4, 2005 "Just a Matter of Trust"

By Carol Platt Liebau

Some people, quite understandably, have objected to the President, in effect, telling everyone to "trust him" that Harriet Mier won't legislate from the bench.

But in fairness, I hope that everyone who is denouncing her has personally read the work and are intimately acquainted with the life histories of Luttig, Alito, McConnell and all the rest of the judges that we were hoping for. Because if they haven't, they are instead just relying on the conservative opinion leaders whom we all respect, who have assured us that they're the "best" choices.

And if that's the case, then it's just a matter of conservatives deciding whom (President Bush or the conservatives opposed to his choice) they will trust on this nomination. On the one hand, President Bush (and VP Cheney) are assuring people that her judicial philosophy is consistent with theirs. On the other are a lot of disappointed people saying, "But how do we know that?" and pointing to statements or writings from candidates they would have preferred more.

Well, we don't know. And it's unsettling, to be sure. But it's worth remembering that no one -- no one -- can predict with absolute certainty how any nominee will vote once he/she is on the bench. While his/her existing body of work provides hints and clues, nothing says that the views can't or won't change. And as to that, all we have are the assurances of well-placed conservative opinion leaders who "know" the potential nominees, just as President Bush and VP Cheney say they "know" Harriet Miers.

Finally, Harriet Miers' statements and behavior may yet provide some rationale for the outrage her nomination has elicited, but at least it seems she doesn't display the intellectual vanity and showboating tendencies that lead to judges who attempt to forge a "juriprudential legacy" rather than simply following the law and the Constitution.

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Posted at 6:31pm on Oct. 4, 2005 Kelo

By Quin

Granted, Miers wasn't White House counsel then, but surely she was in the loop when the Bush administration punted and refused to take a stand on Kelo v New London. As a corporate attorney, has she developed such a pro-corporation attitude that she would join the idiotic majority in a new Kelo case? We don't know. We can't know, because she is a cipher. But she was part of an administration that failed to jump in on Kelo's side. That is not encouraging. She needs to be questioned about it. And the answer needs to come from her brain, not from her "heart," as Bush kept saying. I don't care if the Tin Woodsman (pre-wizard visit) is a judge as long as his brain can understand the importance of individual property rights.

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Posted at 5:57pm on Oct. 4, 2005 George Will on Miers and Bush

By feddie

I don't know if this is an advance copy of George Will's next column (I can't find it online right now), but it was sent to me by someone who works for a major newspaper and I wanted to share it with y'all right away:

Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption ââ‚” perhaps rebuttable but certainly in need of rebutting ââ‚” should be that her nomination is not a defensible exercise of presidential deference to which senatorial discretion is due. It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Courtââ‚â„¢s tasks. The presidentââ‚â„¢s âₘââ‚Ëœargumentââ‚™ââ‚â„¢ for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their prepresidential careers, and this president, particularly, is not disposed to such reflections.

Furthermore, there is no reason to believe that Miersââ‚â„¢ nomination resulted from the presidentââ‚â„¢s careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miersââ‚â„¢ name probably would not have appeared in any of the 10,000 places on those lists.

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. The day before the 2000 Iowa caucuses he was asked in advance ââ‚” to insure a considered response from him ââ‚” whether McCain-Feingoldââ‚â„¢s core purposes are unconstitutional. He unhesitatingly said, âₘââ‚ËœI agree.ââ‚™ââ‚â„¢ Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, âₘââ‚ËœI do.ââ‚™ââ‚â„¢

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 courtââ‚â„¢s role. Otherwise the sound principle of substantial deference to a presidentââ‚â„¢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.

The wisdom of presumptive opposition to Miersââ‚â„¢ confirmation flows from the fact that constitutional reasoning is a talent ââ‚” a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyerââ‚â„¢s career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.

Under the rubric of âₘââ‚Ëœdiversityââ‚™ââ‚â„¢ ââ‚” nowadays, the first refuge of intellectually disreputable impulses ââ‚” the president announced, surely without fathoming the implications, his belief in identity politics and its tawdry corollary, the idea of categorical representation. Identity politics holds that oneââ‚â„¢s essential attributes are genetic, biological, ethnic or chromosomal ââ‚” that oneââ‚â„¢s nature and understanding are decisively shaped by race, ethnicity or gender. Categorical representation holds that the interests of a group can only be understood, empathized with and represented by a member of that group.

The crowning absurdity of the presidentââ‚â„¢s wallowing in such nonsense is the obvious assumption that the Supreme Court is, like a legislature, an institution of representation. This from a president who, introducing

Miers, deplored judges who âₘââ‚Ëœlegislate from the bench.ââ‚™ââ‚â„¢ Minutes after the president announced the nomination of his friend from Texas, another Texas friend, Robert Jordan, former ambassador to Saudi Arabia, was on Fox News proclaiming what he and, no doubt, the White House that probably enlisted him for advocacy, considered glad and relevant tidings: Miers, said Jordan, has been a victim. She has been, he said contentedly, âₘââ‚Ëœdiscriminated againstââ‚™ââ‚â„¢ because of her gender. Her victimization was not so severe that it prevented her from becoming the first female president of a Texas law firm as large as hers, president of the State Bar of Texas and a senior White House official. Still, playing the victim card clarified, as much as anything has so far done, her credentials, which are her chromosomes and their supposedly painful consequences. For this we need a conservative president?

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Posted at 5:34pm on Oct. 4, 2005 Novak's Dirt

By carney

From Bob Novak's Evans-Novak Political Report:

We are told that White House Deputy Chief of Staff Karl Rove called almost every conservative leader in Washington to allay their fears over Miers. To some, the scenario is all too familiar, hearkening back to the nomination of David Souter. As with the Roberts nomination, most conservative groups will probably keep their powder dry and avoid spending money to promote the candidate. Miers's future is still unclear, but unless Democrats decide that she is a stealth conservative and throw everything they have at her, she should be confirmed easily. If she is torpedoed, expect to see both Democrats and conservatives attack her qualifications for the post -- over which there is genuine doubt.

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Posted at 5:18pm on Oct. 4, 2005 How Miers really got the nomination

By feddie

I am sorry, but this is too funny not to pass along:

Cheney: "Look, just tell him that you couldn't find anyone, but that you think you could probably just do it yourself."

Miers: "There's no way I can pull that off."

Cheney: "He'll go for it, I swear!"

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Posted at 4:39pm on Oct. 4, 2005 And the hits just keep on comin'

By feddie

Professor Bainbridge has a devastating takedown on the Miers nomination here.

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Posted at 3:34pm on Oct. 4, 2005 Wrong Insider

By Quin

I liked my response to a post by Insider so much (his post said, pithily, that no president should appoint somebody to the S. Court about whose qualifications there is a question), that I decided to re-post it here. It explains why, unlike our blogger Insider, Miers should be questioned specifically BECAUSE she is an insider. Here's what I wrote:

Insider hits the nail on the head in #16. I would add this: To me, the qualifications of somebody from a president's inmost inner circle should be GREATER than those of an ordinary nominee. If somebody's MOST impressive credential is serving as personal staff secretary, and then personal lawyer, for a president -- rather than having superb credentials independent of personal loyalty to the president -- then that is NOT an impressive credential at all. And to continually hear a president at a press conference say we should trust his choice because he "know(s) her heart" is, frankly, an insult. I don't give a flying &^^@$@ whether Bush thinks he knows her heart. I don't care if she HAS a heart. I want a brain and an originalist appreciation of the Constitution and a longstanding, independent record to prove it.

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Posted at 2:29pm on Oct. 4, 2005 American Thinker

By Marshall Manson

Commenter "Jonathan Bunch" points out this commentary from the American Thinker. Whether you're concerned about the Miers nomination or not, it's a must read.

George Bush has already succeeded in having confirmed a spectacularly-qualified intellectual leader of the Court in Chief Justice Roberts. If conservatives donââ‚â„¢t sabotage his choice, Harriet Miers could make an enormous contribution toward building Court majorities for interpretations of the Constitution faithful to the actual wording of the document.

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Posted at 2:09pm on Oct. 4, 2005 Hearing schedule

By Marshall Manson

Andrew is asking for early hearings. Unfortunately, that's not going to happen. The vetting process is still going to take 4-5 weeks, and the Senate is indicating that the Committee will hold its hearings in early November. (They're shooting for the first week in November, but nothing is set in stone yet. Specter and Leahy are conferring.) Senate leadership would like to complete work on the confirmation prior to the Thanksgiving recess.

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Posted at 1:53pm on Oct. 4, 2005 Harriet Miers Supported "Full Civil Rights for Gays and Lesbians"

By Carol Platt Liebau

So shrieks the siren over at Drudge Report.

Before anyone freaks out, take a moment to read the original document Ms. Miers filled out. And recall that it was 1989 when "civil rights" didn't mean "gay marriage" -- it had a more traditional definition pertaining to things like having the right to live where one pleased, and vote. Who opposes those kind of civil rights for law-abiding citizens?

Whether one agrees with them or not, the responses aren't those of an agenda-driven raving liberal. Note that Ms. Miers opposed decriminalizing even private homosexual behavior between consenting adults -- and, in a question about whether the City of Dallas should outlaw employment discrimination against homosexuals, her answer was as follows:

"I believe employers should be able to pick the best qualified person for any position to be filled considering all relevant factors." Who disagrees with this?

Read the document for yourself.

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Posted at 1:41pm on Oct. 4, 2005 Give Her a Chance

By AndrewHyman

As I said previously, I very much hope that hearings on the Miers nomination will occur pronto. She deserves a chance. Put the revolution on hold.

I'd like to find out if she's willing to strike down statutes that are clearly consistent with the Constitution, merely because of some misplaced reverence for stare decisis. And, I'd like to know if the nominee agrees or disagrees with Justices Scalia and Thomas that the notion of ââ‚Å“substantive due processââ‚? is a load of bull.

Incidentally, regarding the tiny little mere fact that she once donated to an Al Gore Campaign back in the 1980s, big deal. It was not clear back then how obnoxious Gore actually is. Like it or not, he was one of the very few politicians who was standing up to at least give lip service to the idea of protecting the Earth for future generations. Or, do you WANT the arctic to melt and for massive numbers of God's creatures to go extinct?

Anyway, on Miers, let's at least try to express our thoughts with good spelling, punctuation, and grammar. Okay? AND GIVE HER A CHANCE.

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Posted at 12:56pm on Oct. 4, 2005 Revolting

By Quin

I continue to think the nomination of the crony Miers is revolting. It's also clear that the Bush record on spednign is revolting. The Medicare prescription drug plan is revolting, and the methods used (3-hour-votes, strong-arm stactics, alleged bribery attempts) to pass it were revolting. The failure to put enough troops in Iraq was revolting. The pathetic response to Katrina was revolting.

So, how should we react? BY REVOLTING! I hereby revolt from support for this insular, arrogant, cronyist (a made-up word), only semi-competent administration. So should all of you.

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Posted at 12:54pm on Oct. 4, 2005 Note on "Hinderaker on Bush Weakness"

By Carol Platt Liebau

If John Hinderaker is right in the theory excerpted below by Dan Dalthorp -- and the Miers pick is really a result of strongarming by liberal Republican senators -- no doubt that information will somehow "slip out" pretty soon, at least if the volume and heat of some conservative opposition continues unabated. The White House certainly isn't masochistic enough to risk the support of its most loyal adherents simply in order to take heat for Specter and the other RINO's.

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Posted at 12:48pm on Oct. 4, 2005 Bush: Miers Won't Change

By Carol Platt Liebau

If there was one important message resulting from the President's morning press conference, it was this: Harriet Miers is no David Souter. President Bush seemed to emphasize two points: (1) He knows her view of the proper role of the judiciary; and (2) She won't change. Certainly, it's hard to take such assurances on faith, but the President seemed sure, and -- give his record on judicial nominees -- I have no reason to doubt him now.

Is Harriet Miers the most qualified nominee? No -- but, frankly, no one lets that bother them when they know and like a particular nominee's views. Any nominee who doesn't come from the John-Robertsian Ivy League Law School/Supreme Court clerkship/academia or D.C. insider axis is subject to such criticism (chief example? Clarence Thomas, although Sandra Day O'Connor faced it, too.) But let's not kid ourselves -- as a prominent practicing lawyer and White House counsel, she's clearly qualified to sit on the Court.

The argument that a nominee can't have a judicial philosophy unless she (or he) has already been sitting on the bench or in a classroom simply lacks merit. Judicial philosophy is a function of intellect and/or conviction -- not judicial or academic "experience." After all, David Souter was a judge (NH state court and the First Circuit), but that didn't mean he had a philosophy (at least until lefty Justice William Brennan got done with him). And if President Hillary Clinton named David Boies or Janet Reno to the bench, we'd be pretty confident that they'd be bringing a consistent (and unfortunate) philosophy with them.

And perhaps there's merit to the argument that the Supreme Court shouldn't be entirely filled with those who have been breathing only the rarified air of either academia or the judiciary.

Did I hope for Judge Michael Luttig or Judge Michael McConnell or Judge Edith Jones? Of course. Am I disappointed? Well, isn't (almost) every conservative? But in any case, it ill becomes conservatives to ape the condescending, elitist attitudes of liberals -- wherein Ivy League credentials and government experience become the only relevant markers of intellect and achievement.

Let's let liberals be the Adlai Stevenson-types of the world.

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Posted at 12:25pm on Oct. 4, 2005 Bloggers on Miers

By Erick

Several bloggers, including me, were on NPR's Morning Edition this morning to talk about Miers. The interview is here if you want to relish in my southern accent.

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Posted at 12:12pm on Oct. 4, 2005 Defending Miers

By Erick

They did not do it with Roberts, despite some suggesting he was an enigma. But, the President, his communications director, and the Vice President are all out doing the full court press for Harriet Miers. Interestingly, they are not making a case that liberals should support her. They are making the case that conservatives should. Can it be that the White House really was caught off guard by conservative angst over this nomination? I find that hard to believe, but it seems increasingly likely that the White House really did just assume conservatives would trust him.

As Wendell Gollar said on Fox News just before the press conference, the White House did not expect the type of criticism it has gotten from either Rush Limbaugh or Bill Kristol. It is just interesting that a White House that has been so careful could badly miscalculate in this area -- an area that they have, to their credit, handled exceptionally well for five years. Clearly, one area they failed out was lowering expectations for a Jones, a Luttig, or an Alito.

It also seems the White House is having to play defense on two fronts. The first is that Miers will vote with the conservatives on the court (an argument that will weaken her with the left in the Senate). The second is that Miers is well qualified (an argument that so far has not played well with either the left or the right). The White House has resorted to the same rhetorical tactic repeatedly in five years -- if you say something often enough, people will eventually believe it. Thus far that appears to be their strategy in the Miers nomination with respect to her qualifications.

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Posted at 11:35am on Oct. 4, 2005 Hinderaker on Bush Weakness

By DanCT

At Powerline, John Hinderaker speculates that Miers is the result of a deal between the President, liberal Republicans, and Senate Democrats. It's hard to believe that Specter, Snowe, Chafee, Collins would vote against the likes of Luttig, Alito, JRB, but would vote in favor of Miers. But, for what it's worth, here's Hinderaker's argument:

Greased?

When President Bush nominated John Roberts to the Court, liberal interest groups like NARAL and People for the American Way were burning up the fax lines within a matter of minutes, denouncing Roberts and demanding that the Democrats block him. This time? Nothing. Check out the NARAL and PFAW web sites. Nothing but bland press releases adopting a wait-and-see attitude.

What did happen within 30 minutes of Bush's announcement was a press release by Harry Reid that included the statement, "I like Harriet Miers." It's hard to avoid the suspicion that Bush's nomination of Miers reflects some kind of deal with the Senate Democrats. Such as, the Dems gave Bush a list of candidates they would deem "acceptable" (pending Judiciary Committee hearings, of course), and Bush chose the best candidate he could off that list.

Is that what happened? I don't know, but the theory seems to fit the facts. Why would Bush accede to the Democrats rather than fight for another Roberts-type conservative? The only reason I can think of is that liberal Republicans in the Senate, starting with Arlen Specter, told him they wouldn't back him up if he replaced Sandra O'Connor with a strong conservative. There are enough RINOs in the Senate to make such a threat credible, I think.

This is pure speculation, but it is one scenario that seems to fit the facts as we know them so far.

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Posted at 11:22am on Oct. 4, 2005 The Danger of a Blank Slate

By carney

Can a woman with unformed views on the Constitution and the idea of rights be trusted to restrain the court once she gets there? The Wall Street Journal's R & O today is a must-read:

And yet the fact remains that on the major legal debates of her time, Ms. Miers has remained largely silent. Perhaps this is because she hasnââ‚â„¢t had the public opportunity to express her views, but a rational worry is that she doesnââ‚â„¢t have well-developed opinions about the reach into state prerogatives of the Commerce Clause, the separation of powers, the First Amendmentââ‚â„¢s Establishment Clause, the breadth of the right to privacy, and so on. The lesson of other Republican nominees without such fixed viewsââ‚“Harry Blackmun, Mr. Souter, Anthony Kennedyââ‚“is that they always drift to the left once they get on the Court.

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Posted at 11:14am on Oct. 4, 2005 Quin's column

By Quin

Here is my column today in the Mobile Register and on the Newhouse News wire. Please link to it freely. Thanks.

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Posted at 10:15am on Oct. 4, 2005 Nitpicking Miers

By Erick

With twenty-four hours to reflect on the Harriet Miers nomination, I must say that I am still underwhelmed. I've been following up with people and tying up loose ends. Here's the basic information.

First, I have no doubt that Harriet Miers would vote as a Scalia or Thomas -- at least so long as Bush remained in office. Miers is deeply loyal to Bush and understands that Bush needs social conservative support to survive. She will do what she can to ensure that. Loyalty runs both ways between Miers and Bush. In addition to the loyalty, Miers did take a role in fighting the ABA abortion position and has contributed money to pro-life causes in the past. Every indication is that Miers will be right on the key issue for social conservatives -- life.

Nonetheless, though I may be accused of legal snobbery, I am really struck by Miers' lack of qualifications. Her law practice focused on corporations, not constitutional law. She clerked for a judge, but just a federal district court judge. To her credit, however, she does have tremendous life experience.

On the Senate side, I'm hearing that some Republican Senators are less than pleased. I spoke to one of them who says he would not be surprised if the ABA comes back with a less than stellar rating. The irony would be that Miers argued against the President abandoning the ABA reviews.

Several Senate aides I spoke to have said their particular bosses are livid over the nomination. "There were better candidates with better qualifications," said one. Another feared that the Democrats and some Republicans on the Judiciary Committee would seek to undermine Miers' credibility through their questioning. "She has no foundation that we know of in constitutional law. Her credibility will be nitpicked apart and that will hurt the President and us," said a Republican Judiciary Committee staffer.

In addition to concerns within the Republican caucus, some think that the Democrats will, despite their initial warm statements, make a case that Miers is unfit in an effort to undermine the President. "He [the President] is weak. There is no other explanation. The Democrats can smell blood in the water and they are going to attack," says one. A growing fear is that the Democrats will try to make the case that this is another example of cronyism. The Miers pick gives the Democrats an opportunity to connect dots between Michael Brown, Julie Myers, Harriet Miers, and President.

The White House is on a campaign to prove Miers is not only an "originalist," but also qualified. For now it seems that will be a very tough case to make.

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Posted at 10:09am on Oct. 4, 2005 News Clips, Tues. 10/4

By Marshall Manson

Yesterday was pretty slow. Not much going on news-wise... Oh, wait. That wasn't a dream...

There were too many clips today for me to wade through all of them. I've tried to present a sample of the coverage, and I may supplement with another post later today if there are important stories that I haven't included. Feel free to add anything interesting that I've overlooked in the comments.

And make sure to read all the way to the bottom of this post for the first batch of newspaper op/eds.

White House Counsel Miers Chosen for Court

Michael Fletcher, Washington Post

Bush Names Counsel as Choice for Supreme Court

Elisabeth Bumiller, New York Times

Bush Selects Close Ally for Court

Warren Vieth and Edwin Chen, Los Angeles Times

Bush taps Harriet Miers for court

Joseph Curl, Washington Times

Court Nominee Has No Judicial Experience

Dave Espo, Associated Press

Analysis: A Bid for Confirmation, Rather Than Convictions

Dan Balz, Washington Post

Analysis: When a President Is Not Spoiling for a Fight

Richard Stevenson, New York Times

Analysis: A Bunt, Not a Swing for the Fences

Ron Brownstein, Los Angeles Times

Analysis: Bush goes to insider strategy with pick

Judy Keen and Richard Benedetto, USA Today

Analysis: Frustrating friends, inviting enemies

Wesley Pruden, Washington Times

Analysis: Bush May Have Eyes on His legacy With Miers

Tom Raum, Associated Press

AP Newsview: Bush Gambles on Miers

Ron Fournier, Associated Press

Bush Risks Calls of Cronyism in Selecting Friend

Janet Hook, Los Angeles Times

Once More, Bush Turns To His Inner Circle

Peter Baker, Washington Post

Behind the Scenes: First Lady, Democratic Leader Helped Miers

Edwin Chen, Los Angeles Times

Miers Is Example of Bush Picking Picker

Laurie Kellman, Associated Press

Commentary: Opportunity Squandered

Prof. John Yoo, Washington Post

Commentary: Bush's Dangerous Choice

E.J. Dionne, Washington Post

Commentary: An 'Honest Broker'

Prof. Douglas Kmiec, Washington Post

Commentary: Crony Calamity

John Podhoretz, New York Post

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Posted at 3:02am on Oct. 4, 2005 Chillin'

By Lorie Byrd

Patrick Ruffini is starting a new Coalition of the Chillin' for those willing to remain calm and give Harriet Miers' nomination a chance.

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Posted at 1:26am on Oct. 4, 2005 Just a Little Humor . . .

By Carol Platt Liebau

At the end of Andrew's post below is the link to a site with musings by "Judge Luttig."

Well, if you want to see what "Harriet Miers" thinks, check this out.

At the end of a long, grueling day, at least one thing's clear: Ms. Miers seems to like pink.

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Posted at 9:35pm on Oct. 3, 2005 Ssshhhhhh

By Erick

Don't tell anyone, but I have uncovered the super-secret dossier of Bush's Supreme Court picks. The full list of who will be picked based on available openings is here.

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Posted at 9:24pm on Oct. 3, 2005 A new domain address for Confirm Them?

By feddie

Too funny. If you don't "get it," read the first line of my initial post from this morning re: the Miers nomination.

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Posted at 9:22pm on Oct. 3, 2005 Hearings Pronto

By AndrewHyman

Here's one vote for hearings sooner rather than later. Let's not drag this out like last time. And then, during the hearings, perhaps we'll find out if the nominee is willing to strike down statutes that are clearly consistent with the Constitution, merely because of some misplaced reverence for stare decisis. And, we'll find out if the nominee agrees or disagrees with Justices Scalia and Thomas that the notion of "substantive due process" is a load of c**p.

Anyway, sincere congratulations to Ms. Miers. She'd certainly diversify the Court. But I'd rather have a nice homogeneous Court that does the right thing. If we can have both, so much the better.

UPDATE: On a humorous note, don't miss this blog set up by someone claiming to be Judge Luttig. Hat Tip: UTR.

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Posted at 8:41pm on Oct. 3, 2005 An <strike>Vent</strike> Open Thread

By Erick

Is "I nominate Harriet Miers" this Bush's "Read my lips, no new taxes" moment?

Leave it in the comments . . .

(On a personal note, let me say that I'm willing to accept that Miers is right on life. So am I. But that makes neither of us qualified to be a Justice of the United States Supreme Court.)

• [UPDATE]

It appears that Ryan Lizza may have gotten it wrong about Miers' support for gay adoption and the ICC. Miers chaired a committee that offered up a report to the ABA. It appears that the information was a compilation of items prepared by various ABA sections. It all depends on whether Miers' committee got final approval of the agenda. If so, she has problems. If they were forwarding on information in a compiled form, it is not that big a deal.

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Posted at 6:43pm on Oct. 3, 2005 <strong>Mixed feelings</strong>:

By feddie

As I noted earlier in an update to this post, I have received several comforting reassurances about the conservative bona fides of Ms. Miers. And I am certainly heartened that Leonard Leo, Professor Rick Garnett, Jay Sekulow, Hugh Hewitt, Beldar, and Fred Barnes, are all comfortable with the president's selection of Miers. I guess what continues to bother me (on a macro level) is the stealth strategy employed by the president with respect to both of his nominations to the SCOTUS. I can't help but feel as though the president and the Republican Party are wimping out in refusing to have a national debate on the importance of judicial restraint, originalism, textualism, federalism, etc. I don't know. Maybe many of my conservative buddies are right. Maybe I did overreact upon first learning of Miers's nomination. But I can't shake the feeling that this nomination is going to end up coming back to haunt us as a party and a country. I hope and pray that I am mistaken.

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Posted at 6:16pm on Oct. 3, 2005 Trust in me

By Quin

President Bush is, in effect, saying "Trust in me. Just in me." ("Close your eyes-s-s. Go to s-s-s-sleep." Last time I heard somebody say that, it was Sher-Khan (sp?)the python in the Disney version of The Jungle Book.

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Posted at 5:44pm on Oct. 3, 2005 Take A Deep Breath

By Lorie Byrd

I am not a lawyer, so I defer to the lawyers here and those commenting elsewhere on the subject of Harriet Miers' legal acumen. Much of the commentary I have seen today in the blogosphere has not been based on anything that Miers has said or done as a lawyer, though.

Harriet Miers' nomination was announced less than nine hours ago. I don't think I know enough about her to decide whether the President made a horrible or a brilliant pick. I suspect that the final judgment on it will fall somewhere in between though. I am just surprised that so many are being so quick to declare this pick a disaster when so much about Harriet Miers is still unknown. Some of those commenting in response to my initial Polipundit post on the Miers' nomination have already decided to pick up their toys and go home. I ask those who are unhappy with this selection to take a deep breath and reserve final judgment until all the facts are known.

Most of the criticism of the pick that I am reading has to do with 1) her qualifications and resume, 2) those who were well qualified, but were not picked, 3) that her positions on many issues are unknown to us, 4) that she gave money to Al Gore and was a Democrat, 5) and that many Democrats including Kos and Bob Beckel are happy.

On issue #1 above (resume and qualifications) , I say that the biggest problem now regarding her qualifications is that today alone Democrats have amassed a wealth of quotes from conservatives about how unqualified she is. If they do determine she is a Scalia or Thomas-like conservative, they won't even have to fight the ideology fight. They will easily be able to pull out the unqualified argument, as they did with Thomas during his hearing. The difference now is that they won't even have to make it for themselves. They can just quote conservatives.

For those concerned that she isn't an "insider in conservative elite judicial circles," see the post by Carol Platt Liebau below.

Regarding #2 (others more qualified) , I say that there are many, many, many (and probably even many, many, many more) candidates that would have been wonderful picks, and who have records on the bench. But there might not be many more that President Bush knows better than Miers, who he has worked closely with for some time now. For those wanting to compare this pick to some others he has made in the past that might seem to have been based more on cronyism than merit, consider Bush's regard for the Supreme Court. I think the President has expressed many times over the past four years that he realizes how important his role in nominating judges to the bench, and especially to this highest court, is -- certainly much more important than lower level appointments he has made. I am not trusting blindly, but rather am looking at the nomination from the perspective that Bush would nominate someone he believes will uphold the judicial principles that conservatives hold dear. From that perspective, he has judged Miers to be a good choice. Whether or not his judgment proves to be correct seems to me to be the appropriate question and I don't think enough is known to answer it.

On #3 (her positions are unknown), the President has worked closely with Miers and likely knows her positions on many of the issues that would be of concern to conservatives. I agree with Jayson Javitz' take on this, that Bush has much more information on this than any of us do. For those charging cronyism, consider it in the positive. As a "crony" of Bush, he probably knows much more clearly what her specific views are on various issues than he would even a judge who had ruled on those same issues. He may not know specifically how she would rule on a particular case, as he couldn't know for even someone who had served as a judge for many years, but he may well know what her core beliefs are which could serve as a basis for how she might rule.

For those specifically concerned about Miers' position on the life issue, consider this.

On #4 (she is a Democrat who supported Gore), for those too young to remember, in 1988 many Democrats in Texas were conservatives and Al Gore was perhaps the most conservative Democrat running for president. (He didn't lose his mind until he became VP, and don't forget Tipper's crusade against the music industry during that period.) Even my beloved Senator, Jesse Helms, was a Democrat, although it was long, long ago. So was Ronald Reagan. Some just gave up the Democrat registration later than others. From what I have read about Miers' religious background, her switch to supporting Republicans may have also been a result of some major life changes that led her to change her positions on some issues, rather than simply her party affiliation. I am sure that we will hear much more on this topic, and will learn much more to base opinions on, before the confirmation hearings commence.

Regarding #5 (Democrats are happy), don't worry. You can bet that as the proceedings get underway, even those Democrats smiling about the Miers nomination today will find plenty to hate about her later.

I don't love this nomination, but I don't hate it either. I am not blindly trusting President Bush, but I am giving him the benefit of the doubt and I am reserving judgment until I know a lot more than I do now.

(This is a later version of something I posted earlier at Polipundit.)

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Posted at 5:22pm on Oct. 3, 2005 A White Flag in the Culture Wars?

By carney

Buchanan on Miers:

Handed a once-in-a-generation opportunity to return the Supreme Court to constitutionalism, George W. Bush passed over a dozen of the finest jurists of his day ââ‚” to name his personal lawyerâ₦.

What is depressing here is not what the nomination tells us of her, but what it tells us of the president who appointed her. For in selecting her, Bush capitulated to the diversity-mongers, used a critical Supreme Court seat to reward a crony, and revealed that he lacks the desire to engage the Senate in fierce combat to carry out his now-suspect commitment to remake the court in the image of Scalia and Thomas. In picking her, Bush ran from a fight. The conservative movement has been had ââ‚” and not for the first time by a president by the name of Bush.

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Posted at 5:18pm on Oct. 3, 2005 Miers Contributions

By Marshall Manson

One commenter has raised the question, repeatedly, of Miers giving money to Bill Clinton. I know this report is making the rounds. I have received significant information on this, and it is CATEGORICALLY UNTRUE. Yes, she gave money to Gore in '88. Yes she gave money to Bentsen. And she apparently gave some money to the DNC. (All of these in '88.) But the reports of contributions to Clinton are false. (I would post links, but it's impossible to prove a negative by linking to something that isn't there.) Apparently, the basis for this false report is that Ms. Miers' mother contributed $250 to the Clinton campaign.

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Posted at 5:06pm on Oct. 3, 2005 Miers on Life

By Marshall Manson

Sent over from someone supporting Miers, but it's useful info:

According to Kyleen Wright at Texans for Life, Harriet Miers gave $150 to the organization -- then known as Texans United for Life -- in 1989. Miers was a bronze patron for their annual dinner in which Henry Hyde was the keynote speaker. She was listed in the program as a bronze sponsor.

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Posted at 5:01pm on Oct. 3, 2005 A Hopeful Sign . . .

By Carol Platt Liebau

Just checked out the World blog (HT: Hugh Hewitt) and read that Harriet Miers is a member of an evangelical, even -- dare one say it -- "fundamentalist" church.

Biblical fundamentalism is, in a sense, analogous to strict construction, insofar as the idea is that the words of a given text say what they mean, and mean what they say. Almost literally.

If Ms. Miers' approach to jurisprudence is similar to her approach to religion, conservatives may be in fine shape, indeed.

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Posted at 4:42pm on Oct. 3, 2005 Fred Barnes on the Miers Nomination

By Marshall Manson

Fred Barnes has an interesting column up at the Weekly Standard. I wanted everyone to read the whole thing, so here it is. (I can't get through to the Weekly Standard website right now. As soon I can, I will update this post with a link.)

The Nominee You Know

Bush wanted to be sure that his pick would be conservative now and 20 years from now.

By Fred Barnes

IF ALL GOES WELL, Harriet Miers will turn out to be a less impressive version of John Roberts: that is, a judicial conservative, or constitutionalist, who will cause the ideological balance on the Supreme Court to shift to the right. She's not likely to have Roberts's gift for describing and defending a conservative judicial philosophy, dodging questions on current issues, and toying with frustrated Democrats. All she needs to do is come off as a credible mainstream conservative, avoid the questions that Democrats will try to trick her on, and persuade senators she's not merely a Bush crony. That accomplished, she should be confirmed.

She'd better be able to do this. If she can't--if she's not really a conservative--the political effect will be to shatter President Bush's still-strong relationship with his base. The love affair will be over. The president will have dashed the hopes cherished by conservatives for a conservative Supreme Court. And he will be far weaker as a national political leader as a result.

Here's what people at the White House told me after Bush announced to nearly everyone's surprise that Miers, 60, now the chief White House legal counsel, was his pick to replace Sandra Day O'Connor: After running the judicial selection process along with Karl Rove--the process that led to the Roberts nomination--she had become a candidate for the high court herself.

The president and others at the White House have had long discussions with her about judges. She and Rove were involved in questioning at least five candidates for the court vacancy Roberts has filled. From those talks over the months, I'm told, it became clear to Bush that she had exactly the philosophy of judicial restraint he favors and that she wouldn't "grow" as a justice and turn into a swing vote or a liberal.

Also, I'm told, the president is fully aware of the stakes in this nomination. Roberts's replacement of William Rehnquist as chief justice was simply a conservative replacing a conservative. But Miers would succeed a swing justice. With her, I'm told further, Bush believes he would be altering the ideological makeup of the court, moving it to the right.

The question is: why pick Miers and not someone with a judicial record as a conservative? Bush had before him a list of roughly two dozen potential nominees with unassailable qualifications and clear conservative leanings on judicial matters. He'd already interviewed at least four of them. Any of them would be likely to win confirmation. No president whose party controls the Senate has lost a Court nomination fight since 1968. And that year, President Lyndon Johnson's selection of his buddy Abe Fortas came late in the term. That made it easy for Republicans to delay and ultimately kill the Fortas nomination.

So why did Bush choose Miers? For him, these nominations are quite personal. He wants to feel comfortable with his nominee, confident his pick will be a conservative now and conservative 20 years from now. Bush picked Roberts after being impressed while interviewing him. His doubts were erased (and there were initial doubts about Roberts). My guess is with Miers his doubts were washed away too.

Conservatives shouldn't throw up their hands in despair, at least yet. They should wait until they hear from Miers as a witness before the Senate Judiciary Committee. It's then that we'll begin to find out if Bush was correct in his view that she's the person to fulfill the dreams of so many conservatives and finally shove the Supreme Court to the right.

Fred Barnes is executive editor of The Weekly Standard.

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Posted at 4:09pm on Oct. 3, 2005 Onanistic nomination process

By Quin

I have a column coming out tomorrow that I hope to distribute widely, but for now let me give the less formal, more impressionistic response that this nomination deserves: The choice confirms the longstanding impression that George W. Bush is, by inclination, comfortable only within his self-selected "club" of people who, it so happens, think he is the club's natural leader. This White House has long been arrogant and insular, and long criticized for it, and now the habit has become so ingrained that all that is left in Bush's comfort zone is for him to play with within his own ever-narrowing circle. And really, what this looks like is sheer petulance. It's as if Bush is saying: "What do you mean I can't appoint my little buddy Alberto? Who are you to question me; after all, I made Alberto, so of course I know what I'm talking about when I say he's just super-duper. Okay, well, I'll show you: If I can't have Alberto, just TRY to stop me from appointing the lady who first INTRODUCED me to Alberto. This is my White House and my nomination and I'll show you who's boss."

What a pathetic...

What a pathetic example this is. But, in retrospect, it should not have been surprising. By now it should be well known on this blog that I long ago predicted a Roberts/Owen one-two nomination punch. Now what was the REASONING I used for that prediction? Specifically (you could look it up) because Bush is so prone to staying within his own little circle. I noted then, well before Roberts was picked, that Bush knew Roberts personally from back in the first Bush administration, when W. was a key, unpaid adviser (and enforcer) for his father. I figured he would thus pick Roberts over, say, Alito or Garza, specifically because of that previous familiarity with him. Likewise with Owen: It is well known that Bush and Laura and Owen used to have a big dinner together at least once a year, and that they consider her at the very least a very friendly personal acquaintance, part of their Texas semi-inner circle. That, I argued, would give Owen the advantage over Jones and Brown and others. Well, he didn't pick Owen, but I completely believe the reports on this site that up until last Tuesday or Wednesday he INTENDED to pick her, until he realized the nomination would create too big a nomination battle from the Dems without doing enough to excite the base.

So if he couldn't have Gonzales, and he couldn't have Priscilla Owen, he obviously was feeling like he wasn't in charge anymore, and he wanted darn well to feel like he was in charge and show the world that he COULD, dammit, he COULD appoint somebody he likes personally.

So forget that she isn't as qualified as Alito, or Luttig, or Batchelder, or Jones, or Sykes, Boggs, Corrigan or even Larry Thompson. (Or Ted Olson, or..... you get the picture.) Forget that her best qualification is that she goes all moonie-eyed over him. No, on the other hand, DON'T forget that. That's a point in her favor, in his self-regarding book.

This nomination is a travesty. It's an insult not to conservatives, but to Americans -- especially after showing us what a truly qualified nominee looks like, in the person of John Roberts.

This nomination should make us all sick.

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Posted at 4:07pm on Oct. 3, 2005 Sekulow, Leonard Leo, etc.: Cool Heads

By DanCT

Despite the frustration and disappointment, the question now is whether it is better to tear ourselves to shreds with wailing and gnashing of teeth ("We've lost! We surrender! Let the Left have this country because we're incapable of leading it!), or grit our teeth and move forward.

The are a few voices out there calling for moving forward instead of giving up.

Jay Sekulow of the American Center for Law and Justice:

"Harriet Miers is an excellent choice with an extraordinary record of service in the legal community and is certain to approach her work on the high court with a firm commitment to follow the Constitution and the rule of law. I have been privileged to work with her in her capacity as White House counsel. She is bright, thoughtful, and a consummate professional and I enthusiastically endorse her nomination...We know the intentions of the liberal left ââ‚“ to do anything possible to derail this nominee...we are prepared to meet those challenges head on and ensure that this battle ends with the confirmation of Harriet Miers as an Associate Justice of the Supreme Court.ââ‚?

Leonard Leo, President of the Federalist Society:

"In nominating Harriet Miers, the President has once again kept his commitment to select Supreme Court Justices who are very well qualified and share his philosophy of interpreting the law, not legislating from the bench... She has also on a number of occasions demonstrated her commitment to conservative legal principles and the principles of judicial restraint " (Leonard Leo, Memo To Interested Parties Re: Nomination Of Harriet E. Miers, 10/3/05)

Hugh Hewitt:

"The Miers nomination is turning into a Rorschach test dividing conservatives into the camp that understands governing for the long term and those that are so emotionally fragile or contingent in their allegiance that anything they (1)don't understand or (2) disappoints in any way becomes an occasion for panic and declarations of irreparable injury."

Beldar:

"To you, me, the Senate, and the public, Harriet Miers may seem as much of a blank slate as David Souter was when Bush-41 nominated him. "Another 'stealth' candidate," many will say, "another blank slate about whom we know too little to make confident predictions!" That's already the official party line of the Dems, and it's something being muttered less loudly among puzzled Republicans as well.

But that is emphatically not the case from the perspective of George W. Bush. And the Constitution does, after all, give him the nomination power ââ‚” not "the White House," not "the Republican Party," nor "conservatives generally," nor even "us'n who put him back into office." And he knows, and he's always known, that the blame for an appointee who turned out to become "another Souter" would likewise be placed on him. It's a responsibility and an opportunity whose benefits and risks he sought, but that he obviously takes very seriously indeed, because from Dubya's perspective, Harriet Miers was the one prospective female nominee about whom he personally felt that he could be most certain in predicting what sort of Justice she will become."

Richard Garnett:

"I yield to no one in my respect for the "farm team" ââ‚” McConnell, Alito, Luttig, etc. ââ‚” but I am also surprised that some are so quick to assume that this President, who fought hard to get home-run judges Pryor, Owen, Colloton, Brown, McConnell, Sutton, Roberts, etc., confirmed to the courts, would suddenly drop the constitutionalism-ball just to be nice to an old friend or to satisfy those demanding another female justice."

Dick Cheney:

Right. Well, I'm confident that she has a conservative judicial philosophy that you'd be comfortable with, Rush. I've worked closely with Harriet for five years. I've seen her and worked closely with her, hand-in-glove with her, really, through this process of reviewing candidates for the Supreme Court, and that's how we got to the Roberts nomination. She believes very deeply in the importance of interpreting the Constitution and the laws as written. She won't legislate from the federal bench, and the president has great confidence in her judicial philosophy, has known her for many years, and I share that confidence based on my own personal experience.

In the end, these cool, rational voices will win out.

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Posted at 3:21pm on Oct. 3, 2005 Harriet Miers -- A Profound Disappointment

By Erick

Editor's Note: This is where we are at over at RedState.

The cynical among us may be forgiven for wondering whether we still do live in a republic, for the simple pulverzing fact is that the great bulk of the really vexing questions that confront this nation -- those questions that drive right to the heart of who we are as a people -- are in our day answered by the United States Supreme Court. That the Supreme Court has no constitutional authority to answer many of these questions is immaterial. The Court has become our Legislator. The inevitable consequence of this development, whatever one may think of it, is that no American patriot can regard the nomination of a new Justice with indifference.

There is profound disappointment today on the right. Harriet Miers was rumored as the next pick for the Supreme Court, but many people laughed off the suggestion. Some of those who were laughing are now crying. Still others are abandoning hope. Said one correspondent, "This Presidency is adrift." From what we have seen lately, we tend to agree.

For all we know, and we know very little, Harriet Miers is the second coming of Antonin Scalia. But, we do not know. What we know is encouraging to the extent that she might be right on life issues. She did actively oppose the American Bar Association's position. Assuming that Miers is a conservative jurist, we still cannot, at this time, accept or endorse this nomination.¹

Justices of the United States Supreme Court have consistently had notable careers with stints in the state judiciary, federal judiciary, government, or academia. Those picks that originate from government or from academia, usually have stellar careers and brilliant academic resumes, coupled with impressive writings often in academic journals.

From what we know, Harriet Miers is unqualified for the position. She had an impressive career of "firsts" as a female attorney in Texas, but those are not enough. Miers did not graduate from a top tier law school. She has no string of impressive legal writings. She has never served as a judge (let alone clerked for a Supreme Court Justice or Circuit Court Judge). She has never had a practice focusing on issues relevant to the United States Supreme Court. She has had nothing in her career that indicates she is something other than just a great lawyer -- and being more than just a great lawyer should be a key qualification for one of the final arbiters of American jurisprudence.

Many of the President's defenders would argue that Harriet Miers is like Chief Justice Rehnquist, in that she worked for a Presidential administration, but had no experience on the bench before becoming an associate justice. That ignores the fact that Chief Justice Rehnquist graduated first in his class at Stanford, clerked for Justice Jackson, and had a stellar career at the United States Department of Justice. Harriet Miers has nothing similar in her background.

Had the President been interested in competent jurists from unique walks of life, he could have chosen Michael Luttig who knows firsthand the devastation that crime can cause from the savage murder of his father. He could have chosen Karen Williams who was first a school teacher before going on to get a law degree. He could have chosen Janice Rogers Brown, a conservative black woman who worked her way all the way to the California Supreme Court and then was appointed to the United States Court of Appeals. He could have chosen Miguel Estrada, an immigrant to this country who had an impressive career in the Justice Department with a paper trail to prove his fitness and qualifications and who suffered the loss of the wife he loves. All of these potential nominees have unique experience in their personal lives and distinguished careers in law beyond just being great lawyers.

We can be convinced that Miers is stellar. We can be convinced that Miers will be an originalist willing to reject the liberal dogma of Roe. But from where we sit now, this is a profoundly disappointing nomination, a missed opportunity, and an abdication of responsibility to make sound, well qualified nominations. Whether it is also a betrayal of first principles is still to be determined.

1. From Ryan Lizza's reporting we can infer Ms. Miers supported the International Criminal Court, tax increases, and a prohibition on laws that would prohibit gay adoption.↩

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Posted at 3:16pm on Oct. 3, 2005 Meltdown on the Right; Delight on the Left

By DanCT

This, from the daily kos:

Sit back and enjoy

by kos

Mon Oct 3rd, 2005 at 09:25:16 PDT

Several Democrats, including Reid, have already come out praising Miers, which ultimately will only fuel the right-wing meltdown on the decision.

I reserve the right to change my mind, but Miers' biggest sin, at this early juncture, is her allegiance to Bush. That her appointment is an act of cronyism is without a doubt, but if that's the price of admission to another Souter or moderate justice, I'm willing to pay it.

More immediately, this is the sort of pick that can have real-world repercussions in 2006, with a demoralized Republican Right refusing to do the heavy lifting needed to stem big losses. That Bush went this route rather than throwing his base the red meat they craved is nothing less than a sign of weakness. For whatever reason, Rove and Co. decided they weren't in position to wage a filibuster fight with Democrats on a Supreme Court justice and instead sold out their base.

We'll have several months to pick through Miers' record, as well as highlight her role in any number of Bush scandals (like Georgia10 notes).

But my early sense is that this is already a victory -- both politically and judicially -- for Democrats. In fact, it should be great fun watching conservatives go after Bush. He may actually break that 39-40 floor in the polls, given he's just pissed off the very people who have propped up his failed presidency.

Update: Yup, Democrats are fully aboard. Reid's statement on the flip. Cue in more anguished wails from our esteemed colleagues on the other side of the aisle.

I applaud Hugh Hewitt's , Stanley Kurtz's , and others' attempts to cool the fury. The choice may be demoralizing and take the wind right out of our sails, but after a deep breath and a some time to cool off, it'll be time to plug our noses and work to see that Kos' vision does not come true.

Update: Kudos to Carol too for her efforts to cool the flames.

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Posted at 3:10pm on Oct. 3, 2005 Don't Be Misled II

By Carol Platt Liebau

I've been receiving a fair amount of email asking, "Aren't you upset that Harry Reid is praising Harriet Miers?"

Of course. It gives me chills. But there's no reason to believe that Harry Reid knows more about Harriet Miers than President Bush does. And if I were Harry Reid, I would understand several things: (1) Conservatives have been the bedrock of President Bush's support. (2) If they are peeled away, everything is up for grabs. (3) Any positive initial comments are always subject to retraction, but in the meantime, he can drive a wedge between the President and his strongest supporters.

Don't fall for it.

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Posted at 2:24pm on Oct. 3, 2005 The purpose of this site...

By Irishlaw

A few comments on this morning's posts, and Orin Kerr over at Volokh, are amused that "Confirm Them" is not, at the moment, enthusiastic about confirming Harriet Miers. (And all right, I admit I smiled at Kerr's suggested re-names for the site.)

But look at this site's statement of what we see to be at stake in the judicial nominations process, and just read the blog in general, and it should be clear that most of us signed on to this blog to support the nominations of qualified judges who had or have been obstructed in the Senate -- by Democrats and less-than-stalwart Republicans -- unfairly. That is, without regard to their strong credentials, but rather with regard to whether they are "out of the mainstream" (oppose Roe on constitutional grounds) or "extremists" (originalists). See, e.g., Bill Pryor, Janice Rogers Brown, Priscilla Owen, Miguel Estrada. If a nominee really isn't qualified, or really doesn't give reason to believe that she adheres to an originalist (restrained, prudent) judicial philosophy, then she shouldn't receive the strong support of those who care about the direction of the Court.

If it turns out Miers can give a great exposition of her judicial philosophy to the Judiciary Committee, great -- I'd love to see it. Her statement this morning hinted in the right direction. But having to rely on mere hints, at this point, represents a major disappointment in itself.

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Posted at 1:39pm on Oct. 3, 2005 No Wimp

By Carol Platt Liebau

Here is a bio of Harriet Miers.

No one is sure about Ms. Miers' philosophy (at least outside The White House, and maybe not even there) -- which is a legitimate cause for unhappiness. But I think perhaps some of the criticism that is emanating from some D.C. conservatives is not only frustration with an opportunity wasted, but may also be a function of the fact that she is not a member of the Harvard/Yale/Supreme Court clerk/elite D.C. legal insider axis. (Don't get me wrong -- I love some "elite D.C. legal insiders." Some of my favorite people from law school fall in this category, though not the ones I'm referring to here).

The fact is that Harriet Miers graduated with a math degree in 1967. She rose to a number of prominent positions (several female firsts) in Texas -- not an easy task, given that she came up in the pre-flex time, pre-sexual harassment era.

She can't be a wimp. That much, at least, is clear. And just because she's not an insider in conservative elite judicial circles doesn't mean she's presumptively unqualified. The real question, however, is whether she's a judicial conservative. Appointing them seems to be important to the President, and he knows her well.

So a lot of the wailing and gnashing of teeth may turn out to be as premature as the full-throated liberal opposition to David Souter.

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Posted at 1:11pm on Oct. 3, 2005 From Miers' Pastor

By carney

Perhaps useful info from Miers' pastor in Texas, through Marvin Olasky, on the World mag blog:

When Key [the pastor] and Miers met in 1980, "I donââ‚â„¢t know how strong her faith was at that time. She came to a place where she totally committed her life to Jesus. She had gone to church before, but when she came to our church it became more serious to her.... Our church is strong for life, but Harriet and I have not had any conversations on thatâ₦. We believe in the biblical approach to marriage."

Perhaps this coincided with her shift from supporting pro-choice candidates and parties to supporting Bush.

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Posted at 12:58pm on Oct. 3, 2005 Miers Bio Info

By Marshall Manson

For information purposes only, the Center for Individual Freedom has posted biographical information about Ms. Miers at our Supreme Court Confirmation Watch page.

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Posted at 12:44pm on Oct. 3, 2005 The Clinton Contribution

By Erick

Miers gave Al Gore $1000 in 1988. It is false, however, that she gave Bill Clinton $250.00. That urban legend is now popping up at Drudge and other places, but do not fall for it. At worst, it is Ms. Miers's mother who gave Clinton money.

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Posted at 12:30pm on Oct. 3, 2005 Don't Be Misled

By Carol Platt Liebau

Over at the Drudge Report, one of the headlines blares that "Conservative Group Opposes Miers."

Well, that "conservative group" is Public Advocate. This Public Advocate -- highly entertaining, as I noted here, but also often wrong. They opposed John Roberts, as you'll recall.

Many of us are reeling this morning . . . but we need to try to avoid succumbing to the eat-your-own hysteria that can be plenty destructive, especially when there are those who -- like Public Advocate -- are willing to fan those flames for their own purposes.

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Posted at 12:15pm on Oct. 3, 2005 Goldstein predicts Miers will be rejected

By Marshall Manson

Tom Goldstein at the indispensable SCOTUS Blog predicts that Miers will be rejected.

UPDATE: Jonathan Adler at Bench Memos doubts Goldstein's analysis.

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Posted at 12:14pm on Oct. 3, 2005 Addressing a critical issue...

By Marshall Manson

Laying aside the Miers nomination for a moment, this Associated Press story reports that Chief Justice Roberts has resolved a critical issue that was the subject of much discussion here over the last couple of weeks.

At this morning's session, the Chief Justice appeared in his block robe, sans stripes.

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Posted at 12:02pm on Oct. 3, 2005 Reading Her Heart

By Carol Platt Liebau

So President Bush has nominated Harriet Miers to serve as the replacement for Justice Sandra Day O'Connor.

Predictably, and perhaps understandably, conservatives aren't thrilled. Very predictably, liberals appear to be picking at the nomination ("cronyism"), too.

Don't get me wrong -- I would have preferred a Luttig, McConnell, Jones pick. And superficially, it seems as though the President (1) gave into gender politics and (2) chose someone with the express intent of avoiding a protracted nomination fight (in contrast to Reagan, who may have ended up with Kennedy -- but tried for Bork and Ginsburg first).

But the fact is that the President has known Ms. Miers for a long time, and well. There's no reason to believe that he is any less committed than any of us to seeing judges on the bench who understand the proper role of the Court, with a strict constructionist judicial philosophy. And he had to know that the "cronyism" charge would accompany a Miers nomination, and yet felt as though she was good enough to be worth the trouble.

It's hard, because unlike the Reagan White House papers of John Roberts, this nomination gives us hardly any tea leaves to read. We'll just have to wait and see.

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Posted at 11:38am on Oct. 3, 2005 IMPORTANT QUESTION

By Quin

Okay, what I really want to write rhymes with muck and tush, but for now I need information. I have read somewhere in the past week that Miers has said that Bush is the most brilliant man she has ever met. Is this confirmed??!!?? Was this an on-the-record quote? Is it verifiable? I desperately, and quickly, need to know whether this is verifiable, because I am writing a VERY quick-release column on this and I want to include the quote if it is indeed true. Thanks much, folks!

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Posted at 10:43am on Oct. 3, 2005 Speaking of Miers' credentials

By krempasky

Thanks, Marshall - I got the same memo. But I think it's profoundly sad that in a memo touting Ms. Miers' conservative legal credentials - Leo is forced to include:

She was National Co-Chairman of Lawyers for Bush-Cheney in 2000 and helped manage the Bush v. Gore litigation effort.

Well whoop-de-do. Color me underwhelmed. I'm willing to listen - but they better have more than this.

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Posted at 10:42am on Oct. 3, 2005 Miers' Judicial Philsophy

By Marshall Manson

A great deal of emphasis is being placed on Ms. Miers statement this morning from the Oval Office. In particular, a statement that may reflect her judicial philosophy:

ââ‚Å“The wisdom of those who drafted our constitution and conceived our nation as functioning with three strong and independent branches have proven truly remarkable.

"It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts and our society. If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong and to help ensure that the courts meet their obligations to strictly apply the laws and the constitution.â�

UPDATE: Here's the transcript of the remarks from the announcement.

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Posted at 10:37am on Oct. 3, 2005 ABA Fight

By Marshall Manson

I'm hearing more about the ABA fight that carney posted about below. Apparently, Ms. Miers led the fight against the ABA taking a position in favor of abortion on demand. Several of those who worked with her during this fight attest to her courage and leadership on the issue. Ultimately, she led the call for a referendum as a last resort. She was apparently leading the fight against the ABA adopting a pro-Roe position from the very beginning of the discussion. One of those highlighting Ms. Miers role in this fight is Leonard Leo, who was also personally involved. Here's his description of it from a memo this morning:

"As a leader of the bar, Harriet Miers was a fearless and very strong proponent of conservative legal views. She led a campaign to have the American Bar Association end its practice of supporting abortion-on-demand and taxpayer-funded abortions."

I know everyone is -- at best -- confused by this selection. But the information is rolling in, and it may not be as bad as many think. I urge everyone to take a breath and hang on until we learn more.

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Posted at 9:31am on Oct. 3, 2005 Miers on Abortion

By carney

As I wrote on my blog Miers headed an effort in 1993 to subject the ABA's pro-choice stance to a vote of the entire membership. She favored moving the abortion decision from the views of the elites (in this case, elected officials within the ABA) to the people (all of the ABA members). Let's hope that general attitude persists.

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Posted at 9:23am on Oct. 3, 2005 A promise unkept? We'll see...

By krempasky

We've got a lot to learn about SCOTUS nominee Harriet Miers. To hear the White House tell us, "With her distinguished career and extensive community involvement, Ms. Miers would bring a wealth of personal experience and diversity to the Supreme Court."

Diversity. Sure she does. In fact, she gives money to Republicans *and* Democrats.

Mr. President, you've got some explaining to do. And please remember - we've been defending you these five years because of this moment.

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Posted at 9:22am on Oct. 3, 2005 Note...

By Marshall Manson

It's worth remembering that Justice Rehnquist had no judicial experience when he was named to the Court. Neither did Justice Powell or Chief Justice Warren. So that's not unprecedented.

On the other side of the coin, someone just said that this looks a lot like President Johnson's nomination of Justice Fortas to be Chief Justice. Ouch.

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Posted at 9:18am on Oct. 3, 2005 Prof. Turley

By Marshall Manson

Just said on NBC that this is "an amazingly bad choice."

He went on to say outright that Ms. Miers is unqualified. Ugh.

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Posted at 9:07am on Oct. 3, 2005 I'm speechles...

By Marshall Manson

I'll be posting some information soon for everyone's interest. Beyond that, I'm withholding my own opinion for now.

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Posted at 9:03am on Oct. 3, 2005 Where's my Scalia? Where's my Thomas?

By feddie

Harriet Miers? Are you freakin' kidding me?!

Can someone--anyone--make the case for Justice Miers on the merits? Seriously, this is the best the president could do?

And what really sticks in my craw is the president's unwillingness to have a national debate about the proper method of interpreting the Constitution. I suppose I should have seen this coming when White House staffers freaked out over Chief Justice Roberts's ties to the Federalist Society.

Thanks for nothing, Mr. President. You had better pray that Justice Miers is a staunch legal conservative, because if she turns out to be another O'Connor then the Republican Party is in for a world of hurt.

Un-freakin'-believable.

Oh, and if any of you RNC staffers are reading, you can take my name off the mailing list. I am not giving the national Republican Party another dime.

Update: O.k., I've received several calls and emails from conservative buddies telling me to chill out and reserve judgment on Miers. I suppose I should do that, but I am really furious about the president's unwillingness to nominate an outspoken legal conservative. This nomination is not just about one person. This country desperately needs to have a national debate about the proper method of interpreting the Constitution. And what does the president do? He balks at taking on the penumbra lovers on the merits.

Disgusting.

(cross-posted at Southern Appeal)

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Posted at 8:41am on Oct. 3, 2005 Wrong

By Erick

Me, the sources, everyone it seems was wrong. We've all heard the rumors, but not a one could believe the President would do that. Where is our Scalia/Thomas.

I think I'll let the President fight this battle himself, for now.

[UPDATE] This appears to be the same Harriet Miers who gave $1000 to Al Gore in 1988. At least back then he was pro-life, but still. This ain't good.

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Posted at 8:16am on Oct. 3, 2005 Miers

By Irishlaw

Just heard on ABC news radio that the choice, to be announced in an hour, is Harriet Miers. My first reaction: Not thrilled. We'll see.

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Posted at 11:54pm on Oct. 2, 2005 Fund's Guess

By Erick

Wes R says in the comments of the previous post that John Fund believes Connie Callahan is the nominee. Given that there is little known about her and what is known is that she concurred in the Catholic Charities case (see the side bar), I will pray hard tonight that my source is right and his is wrong.

In fact, I would be shocked if he were right, whether or not I am.

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Posted at 11:36pm on Oct. 2, 2005 Question for the Next 24 Hours

By Erick

Is this the next Justice of the United States Supreme Court or the next Joy Clement?

Judge Karen Williams of the 4th Circuit Court of Appeals.

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Posted at 10:13pm on Oct. 2, 2005 The Fourth Circuit

By Erick

We can all laugh about it. Like a stopped clock, I can on occasion get things right. So, we all know how to treat things for what they are worth.

But, give the sources their due. They have adamantly and pointedly and consistently said they have no freaking clue. They've heard the names and they've kept up with the chatter, but as for venturing their own guesses for who the nominee will be, they've bee honest.

So, I consider this a turning point. My friend in the White House thinks that they next nominee will be from the 4th Circuit Court of Appeals -- Luttig or Williams.

Update [2005-10-2 22:21:28 by Erick]: There is a strong likelihood that the announcement will come tomorrow. Also, as you already know, don't bet the farm on Luttig.

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Posted at 2:52pm on Oct. 2, 2005 Random Thoughts About a SCOTUS Nomination

By AndrewHyman

Here's an interesting article from earlier today about Karen Williams, and I've also linked to it at the right side of our page. If you've got time left over, don't miss Paul Weyrich's latest column about the upcoming SCOTUS nomination.

I heard somewhere that Justice O'Connor is recommending against nominating a state court judge, because of her own difficulty getting up to speed when she was appointed to the Supreme Court. But a bias against state court judges would not be a good idea, especially state supreme court judges (O'Connor herself never made it to the Arizona Supreme Court and instead was plucked from the Arizona State Court of Appeals). Among other things, such a bias would turn the US Senate into a bottleneck through which every prospective nominee must have passed, and it seems to me the Senate is powerful enough already. Of course, that doesn't mean there aren't some outstanding federal court judges who would make great SCOTUS nominees.

I'd also like to point out that a nominee who speaks in platitudes is well and good, but there ought to be much more to a nominee than professions of restraint and modesty and humility, all of which would make Uriah Heep proud. IMHO, the President ought to ask potential nominees whether they believe the doctrine of substantive due process is legitimate. He also ought to ask whether the doctrine of stare decisis can compel SCOTUS to not overturn a demonstrably erroneous decision of constitutional law. These questions were asked and answered during the Roberts hearings, so why not during the vetting process too? A potential nominee who answers "yes" to either question is probably not going to be in the tradition of justices Scalia or Thomas.

It would really be great if we could get a nominee who will STOP turning the clock back to the days when there was no rule of law. While we may agree or disagree about the outcome of cases like Lawrence v. Texas, only a fool would contend that the outcome of that case was dictated or implied by the text of the U.S. Constitution. The framers of the Constitution were not so foolish as to give federal judges carte blanche power to create and alter a common law that trumps the laws enacted by our representatives.

George Washington said it better than me or anyone else, in his farewell address:

ââ‚Å“If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.ââ‚?

UPDATE: Here's an interesting article by Trevor Morrison: "Must U.S. Supreme Court Nominees First Serve on Federal Courts of Appeals?"

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Posted at 2:01pm on Oct. 2, 2005 Sorry for the outage...

By Marshall Manson

Sorry for the brief outage over the last hour or so. Everything seems to be back up and running, though.

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Posted at 12:17pm on Oct. 2, 2005 The Sunday Roundup

By Erick

No announcement is expected today. Sources close to the White House tell RedState that the situation is in play. Judge Alito and Judge Batchelder's names are being mentioned. Corrigan's name continues to be mentioned, though not as much. Based on "chatter," I'd say that Judge Luttig's name has move ahead of Judge Williams's name. A White House source tells me that there is concern that Williams could be viewed just like Judge Clement -- coldly by the social right.

I'm told the White House has also come to the conclusion based on public and private polling that the majority of the public wants a "quality" nominee and does not demand a woman or minority as much as the media would have everyone believe.

An independent source tells RedState that we should should not expect a judge from the state level or a current non-judge. "The President is gonna pick a Circuit Court Judge," says the source.

All that and $3.00 just might buy you a bad cup of coffee at Starbucks.

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Posted at 12:12pm on Oct. 2, 2005 Open Thread

By krempasky

Are you watching the Sunday shows? Reading news around the web? Ignoring SCOTUS news in favor of another week in the NFL? Have at it.

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Posted at 10:04pm on Oct. 1, 2005 New Gallup Poll Says: Pick the Best Person

By AndrewHyman

As our holding pattern continues on the nomination of another Supreme Court justice, here are some fresh poll results from CNN/USA Today/Gallup:

While many have speculated that Bush may choose a woman or racial or ethnic minority to replace retiring Justice Sandra Day O'Connor, few Americans see this as an essential quality of the next nominee....

Here are the numbers:

* Fifty-five percent say it does not matter if the next justice is a woman, while 14% say it is essential the next justice is female, and 29% say it is a good idea, but not essential.

* Sixty-nine percent say it does not matter if the next justice is Hispanic; only 3% say it is essential and 23% say it is a good idea.

* Seventy-one percent say it does not matter if the next justice is black, 5% say it is essential, and 22% say it is a good idea.

In all cases, Democrats are more likely than Republicans to see these characteristics as either essential or desirable qualities in the next justice, while the vast majority of Republicans say none of these characteristics matters to them.

Hat Tip: The Next Hurrah.

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Posted at 8:54am on Oct. 1, 2005 A Very Rare Holding Pattern

By Erick

For the first time since all the speculation began, we have come to a rare holding pattern where the names of one day have not suddenly shifted. Robert Novak is reporting that Samuel Alito and Harriet Miers are in the running.

I'm still hearing Corrigan and Alito, with Williams as a back up. Several I have spoken to say the President has considered Miers, but that the White House has calculated that it would have trouble holding the base given that Miers is more of an enigma than Roberts. The White House has made a calculation that the Democrats are going to fight anyone who is picked, so they are treading carefully to present an exceptionally qualified candidate that the public will find palatable.

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Posted at 11:20pm on Sep. 30, 2005 New Poll Shows Dissatisfaction With Judiciary

By AndrewHyman

The American Bar Association is out with a new poll, and here's part of their report:

HALF OF U.S. SEES ââ‚ËœJUDICIAL ACTIVISM CRISIS'

ABA Journal Survey Results Surprise Some Legal Experts

More than half of Americans are angry and disappointed with the nationââ‚â„¢s judiciary, a new survey done for the ABA Journal eReport shows.

A majority of the survey respondents agreed with statements that "judicial activism" has reached the crisis stage, and that judges who ignore votersââ‚â„¢ values should be impeached. Nearly half agreed with a congressman who said judges are "arrogant, out-of-control and unaccountable."

â₦.

Fifty-six percent of the respondents strongly or somewhat agreed with the opinions expressed in each of two survey statements:

* A U.S. congressman has said, "Judicial activism â₦ seems to have reached a crisis. Judges routinely overrule the will of the people, invent new rights and ignore traditional morality." (Twenty-nine percent strongly agreed and 27 percent somewhat agreed.)

* A state governor has said that court opinions should be in line with votersââ‚â„¢ values, and judges who repeatedly ignore those values should be impeached. (Twenty-eight percent strongly agreed and 28 percent somewhat agreed.)

Forty-six percent strongly or somewhat agreed with the opinion expressed in a third statement:

* A U.S. congressman has called judges arrogant, out-of-control and unaccountable. (Twenty-one percent strongly agreed and 25 percent somewhat agreed.)

â₦.

Only 30 percent of respondents somewhat or strongly disagreed with the first statement and 32 percent felt the same way about the second statement. The most disagreement was reflected in the responses to the third statement, with which 38 percent took issue.

Something to keep in mind as the confirmation process proceeds.

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Posted at 10:17pm on Sep. 30, 2005 PFAW Nominates Four

By AndrewHyman

The liberal group People for the American Way has nominated four people to replace Justice O'Connor: Ann Williams, Sonia Sotomayor, Jose Cabranes and Edward Prado. I mention this mainly to point out that Karen Williams is NOT on this list, rumors to the contrary notwithstanding. And, I would venture to guess that the four people who ARE on this list should not pull up stakes quite yet.

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Posted at 6:53pm on Sep. 30, 2005 Hillyer's advice

By Quin

Okay, I have no clue who the nominee will be. But here is my considered advice: Go with a sure thing in terms of originalist/texutalist jurisprudence who can probably be fairly easily confirmed, who makes a good impression, who is erudite, who is unwavering in principle, who defuses the criticism that Bush hasn't chosen a woman, who offers no red meat for libs but who is clearly superb for conservatives, who helps GOPers at least at the margins politically, who will probably serve at least 12 years (to get past two terms of Hillary if, God forbid, that happens) and probably about 16-18 years, and who is good at explaining originalism in public (and has done so quite recently and impressively). Sure,I would love Pryor or Jones or Luttig, and I would be perfectly happy with Sykes or even L. Thompson (I have assurances of his bona fides), and I am a HUGE, huge fan of Alito's. But the safest, smartest choice right now, the one who is a sure thing in terms of jurisprudence AND confirmable and politically good, appears to be Alice Batchelder. And she will rally the troubled Ohio GOP, and she will prove popular with the public. If it's Alito, I'll be thrilled. But the best pick, all things considered, is Batchelder.

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Posted at 5:33pm on Sep. 30, 2005 President's mind made up?

By Marshall Manson

From the Associated Press:

President Bush, closing in on another nomination of a new Supreme Court justice, has completed his consultations with the Senate about who should fill the seat of retiring Justice Sandra Day O'Connor, a White House spokesman said Friday.

Bush was expected to announce his choice in the next few days. White House press secretary Scott McClellan ruled out an announcement Friday but otherwise indicated the nomination could come anytime.

The president, leaving the White House Friday afternoon for a weekend at Camp David, offered reporters only a slight grin and a shrug when asked if he had made a decision. He was returning to the White House Sunday to attend the Red Mass, a service for those in the legal profession.

On Monday, Bush will go to the Supreme Court for the investiture of John Roberts as chief justice. Roberts was confirmed by the Senate and sworn in at the White House on Thursday to succeed the late William H. Rehnquist.

McClellan said Bush and White House officials have discussed the next nomination with more than 80 of the 100 members of the Senate. He called the level of consultation unprecedented.

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Posted at 5:27pm on Sep. 30, 2005 Judge Owen

By AndrewHyman

Assuming that the info about Judge Owen withdrawing her name is correct, I'd like to second what Quin Hillyer said:

Owen is a great lady and a great American, and will be a great conservative judge on the 5th Circuit. And she is young enough for future S. Court consideration. My bet is that she will prove her naysayers wrong and compile a distinguished record of principled and well-written conservative opinions. My hat is off to her. And she will always have my respect for her grace and grit under withering and unfair pressure for four years as a 5th Circuit nominee. If anybody who knows her personally reads this site, please pass on my warmest, most heartfelt, most admiring regards.

Well said. One caveat, though. I think her opinions will continue to be conservative not in a political sense, but in the sense of conserving the rule of law.

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Posted at 4:17pm on Sep. 30, 2005 Owen is Out

By Erick

Tim Chapman over at Townhall.com reports that Owen has withdrawn her name from cosideration for the Supreme Court.

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Posted at 3:13pm on Sep. 30, 2005 The Afternoon Buzz

By Erick

Two names in today's IM, phone, and email buzz -- most from people asking what I know. The names are Corrigan and Alito.

The Alito thing is very interesting. No one has mentioned Alito in a very long time and last time I heard anything about him, which was a while, was just someone saying there was no way the White House would put Alito on because Scalia was already there.

The Chicago Tribune piece has probably started the buzz. But, remember this point -- Roberts was mentioned heavily early on and then fell completely off the radar. Of the major players in the original Slate guide to picking justices, Roberts and Alito were both listed. Roberts's name disappeared from most conversations and he got picked. This time the same thing has happened, but to Alito.

Now, let me say that I have not talked to anyone who knows anything about Alito being the nominee. I'm just gettig a lot of people who have started talking about him and are talking about Corrigan again too.

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Posted at 2:47pm on Sep. 30, 2005 Best To Be Prepared

By Carol Platt Liebau

Erick notes below that:

The jury is still out on the nominee. Says one from a phone call this morning, ââ‚Å“The White House has gone into second guess mode. They want another Roberts, an enigma who will slip through and turn out to be a conservative. They are second guessing their picks. "

Here are the facts. Anyone in The White House who thinks that nominating a minority or a woman will help the nominee "slip through" is dreaming. It's certainly not a reason not to appoint a well qualified female, black or Latino -- but everyone should just understand that the Democrats will try to take out a minority or female nomination with extra fervor because of the threat such nominees (especially those who are obviously conservatives) present to their own, carefully cultivated (and dishonest) claims to be the exclusive spokesmen for women and minorities.

Pick the best candidate of whatever race and gender. Then remember the insane lengths to which they went to try to derail Clarence Thomas, and be ready.

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Posted at 12:06pm on Sep. 30, 2005 Thompson

By Quin

One last post for now. On Thompson, I have in recent days made a key phone call whose contents now allow me to put my reputation on the line: He is terrific. Please, everybody, hold your fire on him until you see who the people are who are front and center singing his praises if he is nominated. I write as the guy who was the first and the most consistent in rallying conservatives behind the great Bill Pryor in major public fora -- NRO, the Wall Street Journal, the Atlanta Journal-Constitution, my own Mobile Register, the SHreveport Journal, the Arkansas Democrat-Gazette..... so I hope my judgment is deserving of a little respect. And I can say that what I was told this week about Thompson, as a lawyer and as a man, makes me very, very confident. Please don't make the mistake I made several days ago of just writing him off as a Bush insider; he is NOT an insider in the Gonzo/Miers sense, but merely a guy who mightily impressed Bush once he got into the administration, but whose own record, well apart from any Bush influence, is stellar.

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Posted at 11:51am on Sep. 30, 2005 Greenburg, etc.

By Quin

I trust Jan Greenburg of the Chicago Tribune. Her past record shows her to be well plugged in. Her report yesterday mentioned, definitely, seven names: Alito, Gonzales, Luttig, Miers, Owen, Thompson and Williams. Today she mentions only four: Alito, Luttig, Miers and Gonzales. None of that squares with all the other reports that Thompson remains very much in the running, nor with the reports that Batchelder is still alive. But it sorta makes sense, knowing the way Bush operates. He wants another Roberts, meaning he wants somebody of impeccable credentials who also is a judical conservative but who has nothing so imflammatory in his/her record (a la the wonderful Edith Jones) that she would turn off GOP mods like the Maine ladies and even Specter. Only two fit that bill, Luttig and Alito -- although Batchelder, except for the clerkships and high-powered college, comes awfully close. On the other hand, Bush is a guy with a weakness for sticking with people he knows personally, because he believes he can see into their hearts. (Putin, anyone?) Owen fits that bill, but (despite my longstanding prediction that Bush would pick her) POTUS seems now to be convinced she would provoke too much of a fight from the left without enough credit from the right. The only two others are, of course, Miers and Gonzo. So his choice is a friend, Gonzo or Miers, or somebody qualified even though the choice isn't a woman or minority -- hence the terrific Alito or Luttig. Then, still in his mind, but on the outskirts, are Batchelder and Thompson, which would mean Greenburg has it wrong but the other reports have it right.

My take: Gonzo and Miers shouldn't even be on the list. Too much insider baseball there (among other problems well known to us). Alito has been my favorite choice all along. (Not my prediction, which was Owen, but my personal first choice considering all the circumstances.) Luttig has some quirks, but he is a brilliant originalist and would be superb for years -- with the added advantage that Souter likes him, because he helped defend Souter against Ted Kennedy, so Luttig might actually draw Souter back to the center. Meanwhile, Batchelder, from everything I've read, seems absolutely splendid, and she would help rally a dreadfully weakened Ohio GOP. And Thompson is -- PLEASE believe me on this -- about as good a guy as we would ever want.

In short, if there were no political considerations, I would go, in this order, (of the six I think are finalists) Alito, Luttig, Batchelder, Thompson, with any of those four being not just acceptable but superb. Considering the politics of the situation as well, I would go Batchelder, Thompson, Alito, Luttig in that order.

Oh... and one more note: I repeat that if all of this analysis is wrong, and he nominates Mahoney, I will try to lead a huge revolt. The Michigan case -- and her SUBSEQUENT defense of it as well -- is a disqualifier unless and until she serves serious time on a federal circuit bench establishing a record that makes up for it.

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Posted at 11:22am on Sep. 30, 2005 Confusion and Second Guessing

By Erick

"Shell shocked," "confused," "stumbling," "full of doubt." These are all words I have heard used to describe the current White House effort to find Sandra Day O'Connor's replacement. Batchelder, Williams, and Owen have all been interviewed, but the process continues to sputter along.

Several have told me not to buy into the Miers trial balloon. It is, I'm told, just that -- a trial balloon. Another tells me, "The President wants Gonzales. That's what is dragging this thing out. They're sending out people to say he is conservative as if by telling us that enough we will say, 'sure, he really is one of us.' That is not going to happen."

The process is still moving. Those I have talked to in the past twenty-four hours tell me we should expect a minority or woman. The odds are that it will be a woman. Sykes's name has gotten little play in the past twenty-four hours and Luttig's name has gotten none. Larry Thompson's name continues to surface. One person disputes all my sources and tells me that Thompson, not Clement, was the almost pick last time.

The jury is still out on the nominee. Says one from a phone call this morning, "The White House has gone into second guess mode. They want another Roberts, an enigma who will slip through and turn out to be a conservative. They are second guessing their picks. That, I would think, increases the chances of a Thompson or a Gonzales -- someone the President's gut tells him is conservative. My gut tells me we have to keep the pressure on or we're [screwed]."

Just as I was finishing, a friend close to the White House called to say that we may hear an announcement soon. My own suspicion is that we may see the White House attempt to take attention away from Judith Miller's testimony by making an announcement. If it is rushed, I think we will wind up with a Gonzales, a Miers, or a Thompson.

The situation is fluid, very fluid. The White House source does say that Batchelder and Williams are in play.

[UPDATE] Told reliably there will be no announcement today.

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Posted at 11:02am on Sep. 30, 2005 Justice Ginsburg Endorses the Ginsburg Precedent

By Marshall Manson

Looking forward to the next nomination fight, the question of questions will once again be front and center. So an Associated Press report on a speech Justice Ginsburg gave the other day provides an interesting nugget:

Ginsburg also said she agreed with a position taken by federal Judge John G. Roberts during his confirmation hearing to replace the late Chief Justice William H. Rehnquist.

Roberts invoked Ginsburg when he refused to speculate on how he would rule in cases before the court.

"Judge Roberts was unquestionably right," Ginsburg said. "My rule was I will not answer a question that attempts to project how I will rule in a case that might come before the court."

I'm sure the next nominee, whoever that might be, will have this quote committed to memory by the time he or she goes before the Judiciary Committee.

One side note: While I was glad to see that Justice Ginsburg embraced her own past actions, I was disappointed that it came during a talk where she once again opined about that selection of the next nominee. I've already ranted about Justice Ginsburg's last forray into the political arena. I said before that expressing her views cheapens her stature and calls her objectivity into question. And I encouraged her to resist the temptation to do so in the future.

Well, either Justice Ginsburg isn't a regular reader of Confirm Them or she ignored my well-intentioned advice. I can't say I'm surprised. But seriously, someone needs to tell her to knock it off.

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Posted at 10:49am on Sep. 30, 2005 Shedding Tears for Schumer?

By Marshall Manson

How could anyone resist reading every word of a post by JohnInCarolina that begins like this...

Someone once said that the two most dangerous creatures on God's earth are a wounded tiger and a liberal who's just had his limousine repossessed.

There's another kind of liberal who's less dangerous but often very angry. Such liberals feel they know everything. That's what allows them to always want to decide how other people should live their lives.

It's definitely worth a read and a chuckle at Sen. Schumer's expense.

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Posted at 10:43am on Sep. 30, 2005 What Reid and Leahy Didn't Say

By AndrewHyman

A couple days ago, Senators Reid and Leahy sent a letter to the White House, saying this:

We strongly urge you to refrain from nominating to the Supreme Court any of the handful of judicial nominees who were filibustered during the past four years, including the three judges who were narrowly confirmed earlier this year as part of the bipartisan agreement that averted the so-called ââ‚Å“nuclear option.ââ‚? The nomination of any of these individuals to the Supreme Court would represent an unnecessary provocation and would be met by substantial opposition in the Senate. We urge you to pick one of the many qualified mainstream candidates who can win widespread bipartisan support in the Senate and among the American people.

It's laudable that this letter, while mentioning filibusters of the past, didn't threaten more in the future. Despite these Senators' extensive knowledge of the potential nominees in question, Reid and Leahy didn't suggest that there might be "extraordinary circumstances" justifying the first-ever defeat of a Supreme Court nominee who has clear majority support. On the other hand, maybe they're just afraid to make their threats in public.

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Posted at 10:31am on Sep. 30, 2005 News Clips, Fri. 9/30

By Marshall Manson

Most of the stories about the Roberts' confirmation and swearing in also include nuggets of information about the next vacancy. And the L.A. Times has given us another must-read editorial. Also, I'd like to thank a guy named Zev Safran -- who blogs over at Judge and Jewry. For the last three months, Zev has gotten up every morning and put together the early morning clips. He's made it a lot easier for me to provide this product every day. With yesterday's swearing-in, Zev is going to take a break for a while, but I wanted to give him the public thanks that he deserves.

Editorial: Poor judgment
Los Angeles Times

Editorial: The Roberts Court

Washington Times

Bush may name next nominee in days

Joseph Curl, Washington Times

Bush Likely to Name 2nd Nominee Next Week

Deb Riechmann, Associated Press

Justice Ginsburg says she'd prefer another woman on court

Estes Thompson, Asscoiated Press

Bush: Roberts a model for next nominee

Stephen Thomma, Knight Ridder Newspapers

Roberts sworn in as chief

Jan Crawford Greenburg, Chicago Tribune

New Battle Looms as Roberts Is Sworn in

Brian McGuire, New York Sun

Senate Confirms Roberts as 17th Chief Justice

Sheryl Gay Stohlberg and Elisabeth Bumiller, New York Times

Roberts Confirmed as 17th Chief Justice

Charles Babington and Peter Baker, Washington Post

Roberts Is Sworn In as Chief Justice

Maura Reynolds, Los Angeles Times

Roberts era begins on Supreme Court

Kathy Kiely and Joan Biskupic, USA Today

Roberts confirmed to high court

Charles Hurt, Washington Times

Roberts Takes Oath as Chief Justice

Jesse Holland, Associated Press

Roberts becomes nation's 17th chief justice

Charlie Savage, Boston Globe

John Roberts takes oath as chief justice

Reuters

Roberts takes oath of office to US Supreme Court

Agence France Presse

Editorial: A Chief Justice Accedes
New York Sun

New Leader, Tough Issues for Court in Transition

Linda Greenhouse, New York Times

Now it's the Roberts Court

Warren Richey, Christian Science Monitor

Big cases leave chief justice little time to settle in

Joan Buskupic, USA Today

Style: The Job of a Lifetime? You Got That Right.

Marcia Davis, Washington Post

Commentary: Sam's Hero

Manuel Miranda, Opinion Journal

Commentary: The Conservative Persuasion

Christopher Levenick, The Weekly Standard

Color: Master Roberts Polite, if a Bit Fidgety

Associated Press

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Posted at 6:29pm on Sep. 29, 2005 A Different View on Gonzales

By Carol Platt Liebau

Just heard from a very knowledgeable Washington insider type. One of the most staunchly conservative people I've ever known, and with some degree of personal experience to back it up, my "insider" just characterized Gonzales as "a very good bet to be a solid conservative justice over the years." Interesting.

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Posted at 5:38pm on Sep. 29, 2005 The latest...

By Marshall Manson

The press reports are accurate. It's very likely that there will be no announcement before Monday. And the consensus this afternoon is that no one (including, quite possibly, the President) has any real idea who the choice will be.

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Posted at 4:59pm on Sep. 29, 2005 Just for fun!!!!!!

By Quin

Okay, just for fun, if we really want the most brilliant guy out there, and if we want to send Hillary and company so far up the wall that they get stuck and can't ever get their feet back on the ground again, and if we want diversity and a wonderful personal story, I suggest we nominate..... Viet Dinh!!!!

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Posted at 4:26pm on Sep. 29, 2005 Why wait 'til Monday?

By Quin

It astonishes me that the White House may not actually have a decision yet. I would have thought they would have already picked somebody months ago. That said, then IF the CBS radio report is correct, that Bush is STILL reviewing files over the weekend -- and of course, I realize that might just be a smoke screen -- THEN it tells me my longstanding educated guess, that Priscilla Owen would be the choice (and indeed may have been the choice up until this week), may have gone by the wayside. Maybe it's been the lack of conservative blogger enthusiasim for her (which i am still a bit baffled by). Maybe it is that COMBINED with word from Dems that they will fight her tooth and nail, and from NE Repubs that they don't have the stomach for a fight. Maybe it's all that PLUS the "cronyism" factor int he wake of "Brownie" at FEmA. Who knows? But if they are not ready to go with her already, that tells me they won't go with her at all. Where does that leave my prediction? Still the same. I still think Bush and Laura want her to be the nominee. I think Rove is comfortable with her, and eager for a fight over parental consent. But IF the PRes delays until Monday not for tactical reasons, but because he truly hasn't made up his mind, then Owen is probably out. Then there is the Chicago Trib report that lists only seven names. If Owen is out, then so, probably, are the other Texans, Gonzales and Miers. (The Trib doesn't list Sykes, and she serves on a court in Chicago.) Luttig and Alito (MY choice!) are out because Bush just won't go for another white male. Karen Williams is too much the white woman of privilege, and she'll be tarred by association with Strom. Which would leave..... Larry Thompson. He fills the diversity bill. He's very very smart. He's untouchable politically because even John Lewis, civil rights hero, loves him. He's clearly conservative. He will garner instant support from business interests. He's attested to by some of the most important conservative insiders in DC. He makes a good impression on TV. He's squeaky clean.

Me, I still like Alito and Jones and Luttig and Batchelder, and probably Sykes, and of course I would love to see Bill Pryor but that won't happen. But I'm predicting Owen, with my backup prediction now being Thompson. I think the tea leaves may be moving in that direction.

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Posted at 2:12pm on Sep. 29, 2005 The Importance of Demeanor

By Carol Platt Liebau

As if there isn't enough advice floating around already, just thought I'd put in my two cents. As much as I'd love to believe that 23 Democrats have suddenly subscrined to the belief that ideology shouldn't be a factor in Supreme Court nominations, I don't think that's what's going on. In fact, a big reason that Chief Justice Roberts garnered as many votes as he did was because he gave Democrats -- who would have loved to vote against him -- no excuse to do so.

He is certainly brilliant, as I noted here last night. But if he had come across as being arrogant or combative (which would have been likely to reduce the healthy support among the public that he enjoyed), many Democrats (including some who voted for him) would have been all too delighted to vote "no" and thereby keep the left wing interest groups happy.

It is a sad fact that -- along with being a strict constructionist and a person of integrity -- the nominee also has to come across well on television. Any demeanor issues will be used by the Democrats, not only as an excuse for opposition, but in an effort to undermine the popularity and the credibility of the principles the nominee espouses.

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Posted at 1:55pm on Sep. 29, 2005 One Down, One to Go

By Marshall Manson

Midday Thursday, the U.S. Senate confirmed John Roberts to be the 17th Chief Justice of the United States.

Itââ‚â„¢s hard to imagine a more qualified, brilliant and articulate person who could occupy the Supreme Courtââ‚â„¢s center seat. And if his record is any indication, it seems likely that Chief Justice Roberts will prove himself one of the nationââ‚â„¢s great jurists. With his personal magnetism and extraordinary persuasive skill, the nation should also benefit from a more united, coherent High Court. Most importantly, during the Senate Judiciary Committeeââ‚â„¢s hearings, the Chief Justice demonstrated his respect for the Constitution and the rule of law.

With Chief Justice Roberts soon to occupy his new chambers, attention has turned to replacing retiring Justice Oââ‚â„¢Connor on the High Court. And aside from revealing the Chief Justiceââ‚â„¢s brilliance, the recently completed confirmation process shined a spotlight on the Left and their Democratic puppets in the U.S. Senate.

In the end, nearly half of Senate Democrats voted against the Chief Justiceââ‚â„¢s confirmation. Given his superb qualifications and obvious intellect, itââ‚â„¢s apparent that there is simply no one that President Bush could nominate that these partisans would ever vote to confirm. And itââ‚â„¢s unfortunate that so many Democrats in the U.S. Senate have essentially handed their votes over to special-interest puppet masters on the Left.

At the same time, a number of Democrats did the right thing and cast their votes in favor of the Chief Justiceââ‚â„¢s confirmation. In doing so, they demonstrated the folly of their past obstruction of judicial confirmations based on ideology. Indeed, the number of Democrats voting ââ‚Å“ayeââ‚? shows that a solid judicial conservative like the Chief Justice can and should win confirmation. It also shows that Democratic efforts to treat nominees like political candidates are doomed to fail.

That doesnââ‚â„¢t mean the Left wonââ‚â„¢t try. Too many ultra-liberal organizations have already declared that the Presidentââ‚â„¢s next nominee must be filibustered no matter what. Even DNC Chairman Howard Dean recently called for a ââ‚Å“fight to the deathââ‚? to prevent confirmation of the Presidentââ‚â„¢s next selection to the High Court and urged Democrats in the Senate to filibuster. And this was before the President had announced his choice.

The absurdity of their attitude is apparent. And it exposes the total lack of anything but partisanship that motivates the Leftââ‚â„¢s blind commitment to obstruction.

With the emptiness of their crusade revealed, no American can take anything they say seriously. Indeed, it ought to be obvious that anything and everything that emanates from the Left is spewed forth only to justify their obstruction.

So as the next Supreme Court confirmation fight begins, just remember: if their lips are moving, theyââ‚â„¢re obstructing.

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Posted at 12:52pm on Sep. 29, 2005 Reaction to Chief Justice Roberts' Confirmation

By Marshall Manson

Thought our readers would be interested in this memo from Leonard Leo, Wendy Long, Jay Sekulow and former Attorney General Ed Meese:

In confirming Judge John Roberts by a vote of 78-22, one thing is certain: no Senator can say that he was unaware that Judge Roberts embraced the principles of judicial restraint. Conservative judicial philosophy was a cornerstone of the Presidentââ‚â„¢s announcements when he nominated Judge Roberts to be an Associate Justice and then to serve as Chief Justice of the United States. On numerous occasions during his Senate testimony, Judge Roberts clearly articulated his view that the judgeââ‚â„¢s role is not the politicianââ‚â„¢s role: judges must decline to engage in policymaking. This oral testimonyââ‚”sometimes under intense questioningââ‚”was buttressed by many Reagan-era documents revealing Judge Robertsââ‚â„¢s strong articulation of those principles as a lawyer in that Administration.

The bottom line is that a very substantial majority of Senators, including an impressive number of Democrats, enthusiastically supported Judge Roberts after hearing his views about the limited role of the Court. The Democrats voting against Judge Roberts made clear that they envision the Court playing an interventionist role in the developing policy, contrary to the role that the Constitution establishes.

The Constitutionââ‚â„¢s ââ‚Å“Advice and Consentââ‚? process worked. There was a full and fair debate about whether Judge Roberts possessed the intellect, temperament, and devotion to the Constitution to be on the U.S. Supreme Court. The Senate saw a nominee who was obviously selected by President Bush because he shared the Presidentââ‚â„¢s philosophy of judicial restraint. An overwhelming majority accepted the Presidentââ‚â„¢s constitutional authority to choose Justices who reflect his judicial philosophy, which was set plainly before the American people during the last two presidential elections.

To be a judicial conservative is to be in the mainstream of American law and politics. Many Senators who voted for Judge Roberts clearly agree with this, including some Democrats. Other Democrats may simply have performed their ââ‚Å“Advice and Consentââ‚? duty as envisioned by our Founders, who gave the President the duty to select Justices. We hope in future Senate confirmations, the principles of judicial restraint will garner such widespread support that opponents of judicial restraint will be exposed as wanting to turn back the clock to the time of a politicized, agenda-driven judiciary.

For today, we are content to recognize that the overwhelming vote for Judge Robertsââ‚â„¢s confirmation should forestall any illusion that a filibuster of Supreme Court nominees who share the Presidentââ‚â„¢s judicial philosophy is either a practical reality or a principled response.

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Posted at 12:43pm on Sep. 29, 2005 Roberts Confirmed!

By Marshall Manson

Final vote was 78-22.

55 Republicans and 23 Dems voted yes. 22 Dems voted no.

How the Dems voted below the fold.

Democrats voting Yes:

Max Baucus of Montana

Jeff Bingaman of New Mexico

Robert Byrd of West Virginia

Kent Conrad of North Dakota

Russ Feingold of Wisconsin

Tim Johnson of South Dakota

Herb Kohl of Wisconsin

Mary Landrieu of Louisiana

Patrick Leahy of Vermont

Ben Nelson of Nebraska

Bill Nelson of Florida

Mark Pryor of Arkansas

Ken Salazar of Colorado

Christopher Dodd of Connecticut

Joseph Lieberman of Connecticut

Byron Dorgan of North Dakota

Carl Levin of Michigan

Ron Wyden of Oregon

Tom Carper of Delaware

Patty Murray of Washington

Blanche Lincoln of Arkansas

James Jeffords (I) of Vermont

Jay Rockefeller of West Virginia

Democrats voting no:

Evan Bayh of Indiana

Joseph Biden of Delaware

Barbara Boxer of California

Hillary Rodham Clinton of New York

Jon Corzine of New Jersey

Mark Dayton of Minnesota

Dick Durbin of Illinois

Dianne Feinstein of California

Edward Kennedy of Massachusetts

John Kerry of Massachusetts

Frank Lautenberg of New Jersey

Barbara Mikulski of Maryland

Barack Obama of Illinois

Harry Reid of Nevada

Charles Schumer of New York

Debbie Stabenow of Michigan

Jack Reed of Rhode Island

Tom Harkin of Iowa

Daniel Inouye of Hawaii

Paul Sarbanes of Maryland

Maria Cantwell of Washington

Daniel Akaka of Hawaii

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Posted at 11:21am on Sep. 29, 2005 Time to cowboy up, Mr. President

By feddie

Dear Mr. President,

It's time to appoint an unabashed legal conservative to the Supreme Court (e.g., Judge William H. Pryor, Jr.). Judge John Roberts was a fine choice to replace Chief Justice Rehnquist, and I have no doubt that he will have a long, distinguished career. But the base needs (read: demands) that your next choice be someone who is unafraid to bear witness to the truth. This is not only a fight worth having, Mr. President, it is one we must have for the survival of the republic. For far too long, the Supreme Court has been on a lawless trajectory, and it's time to reverse course. There can be no more decisions like Lawrence v. Texas or Roper v. Simmons. It is time to take a stand. Be bold, Mr. President. Choose someone who is proud to be a member of the Federalist Society, and wholeheartedly embraces the ideals of that organization. Choose someone believes in judicial restraint, and the virtues of originalism, textualism, and federalism. You said repeatedly in two presidential campaigns that you would appoint judges/justices in the mold of Justices Scalia and Thomas. Well, you now have an opportunity to prove that those statements were more than just campaign rhetoric. It is time to pay up, Mr. President.

Honestly, I could care less if you spend a trillion dollars on a grant to study the migration patterns of the Leatherback Sea Turtle. But I--as well as many other conservatives--do care very deeply about the future composition of the Supreme Court; and if you fail to deliver the goods with this nomination, the Republican Party will pay dearly for your betrayal in the 2006 and 2008 elections.

I know things aren't going well for you right now, Mr. President, but it's time to cowboy up and nominate a true believer to the SCOTUS.

(cross-posted at Southern Appeal)

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Posted at 10:42am on Sep. 29, 2005 The Roe test

By Irishlaw

Thanks to Erick for all the nominee gossip he keeps providing! I also appreciate that his sources are willing to talk and share what they know, even if it's not as concrete. I did want to take issue with one comment from Erick's last source, however: "The President is not going to name anyone who has specifically written that Roe should be thrown out. Itââ‚â„¢s not going to happen and people should deal with it."

I'm not one of those that needs a sworn affidavit from Roberts about Roe to be impressed with his credentials and his intellect, or even to believe he's a good originalist. However, it is strange that someone so smart and connected can make it through a career, in Washington no less, not having publically taken a position on the matter. It's a decision that even those who defend its outcome can't defend with regard to its reasoning, and it's split a lot of the country for the last three decades. If a judge or nominee believes it's a terrible opinion and should be thrown out, and has written that at some point in his or her career, why should other Roe critics just "deal with it" that that person will be disqualified from the high court? I think the model of Judge Pryor was fantastic to the contrary: someone who wasn't afraid to look senators in the eye and affirm that he not only thought abortion was a moral evil, but that its seminal decision was poorly written -- yet who could affirm just as clearly his respect for the Constitution and the rule of law. As a state AG and an appeals judge, he understood his role. Should that be an always-and-forever disqualifier from the Supreme Court, just because the Democrats and NARAL would be apoplectic? They've promised to fiercely oppose anyone the President nominates anyway. He might as well pick the best person even if he has a paper trail on Roe.

That being said, I do believe Bush has heard his base on this; it's why he's nominated such strong jurists to the lower courts. I just hope it holds for this nomination as well.

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Posted at 8:57am on Sep. 29, 2005 News Clips, Thurs. 9/29

By Marshall Manson

Pretty thin today. It's worth noting Jan Greenburg's story in the Chicago Tribune this morning. (It's the second item below.) She had the best sources and the best reporting of anyone in the MSM prior to the last nomination. And she agrees with Erick that the picture is as confused as ever. Also, Hurt's story from the Washington Times is a must-read.

Bush Reported Near to Nominating Judge

Elisabeth Bumiller, New York Times

Bush said to have narrowed his list for top court spot

Jan Crawford Greenburg, Chicago Tribune

Democrats decry bias on Roberts

Charles Hurt, Washington Times

Roberts to Be Confirmed as Chief Justice

Jesse Holland, Associated Press

Officials Plan for Roberts' Swearing In

Gina Holland, Associated Press

Hispanics, conservatives push court picks

Alex Bolton, The Hill

Finding ideal candidate to replace O'Connor proves difficult

Jan Crawford Greenburg, Chicago Tribune

Commentary: Even big guys deserve a fair trial

Andres Martinez, Los Angeles Times

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Posted at 4:14am on Sep. 29, 2005 A Few Notes About Judge Sykes

By AndrewHyman

I've posted a couple more links about Judge Sykes, over at the right side of our home page, under the category “SCOTUS Candidates."

It appears from comments in some of our threads that much is being made of the following statement by Judge Sykes when she sentenced some abortion clinic protesters to two-thirds of the maximum sentence:

I do respect you a great deal for having the courage of your convictions and for the ultimate goals that you sought to achieve by this conduct....I think that people on both sides of the abortion issue would probably agree with you that reducing the number of abortions in this country is a desirable goal.

Before reading too much into that statement, consider this recent report on a similar subject:

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Posted at 12:52am on Sep. 29, 2005 Wishing Roberts Well

By Carol Platt Liebau

To echo what Andrew has written immediately below, we certainly do wish Judge Roberts all the best.

As I see it, the fact is that neither we -- nor anyone else, for that matter -- really knows whether he is less/more/as conservative as Justices Scalia and Thomas. Certainly, his intellect is dazzling. And just because there's no lengthy and outspoken record, we shouldn't be premature in extrapolating a tendency toward "squishiness" from his caution and care in responding to the Judiciary Committee and from his avoidance of controversy in his career. For all we know, he could be a Scalia or a Thomas . . .

Of course, the element of uncertainty is unsettling, but that's what comes of a nomination system under which, for years now, Republicans have been willing to confirm well-qualified albeit ideologically abhorrent liberals (Ginsburg, Breyer) -- while Democrats have behaved in bad faith on Republican presidents' Supreme Court picks since the Bork debacle in 1988.

One thing is clear: The President would do the country a great service by choosing a nominee with a clear and well-known judicial philosophy and track record. Because Republicans have been unwilling to risk a fight in the past, they have tended to choose justices like Kennedy and Souter -- who are either unknown or unthreatening to the left. As a result, some of our picks (with the honorable exception of the fabulous Clarence Thomas) have been disappointing surprises.

That's got to end. Unlike the days of Ronald Reagan (post 1986) and President George H.W. Bush, Republicans have a majority in the Senate -- and, with the rise of the "new media," a voice to fight back against MSM distortion. Why have 'em if we're not going to use 'em?

Here's hoping that President Bush's next pick is an unabashed strict constructionst (but one with the kind of demeanor and temperament that will show up disgraceful Democratic baiting and smear tactics for what they are).

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Posted at 11:12pm on Sep. 28, 2005 Confirm Roberts, But

By AndrewHyman

The U.S. Senate will start voting tomorrow (Thursday) at 11:30 AM East Coast Time on the Roberts nomination. I think all the bloggers here at confirmthem wish Judge Roberts well, and congratulate the President on picking a very smart and experienced person for the job.

BUT, it seems that Senator Wyden of Oregon is correct to say that "Roberts is not as conservative as Justices Clarence Thomas and Antonin Scalia." It would be terrific if the next nominee would be more in the tradition of Scalia and Thomas. As Tony Perkins of the Family Research Council said recently, "The only thing that matters to us is that it is someone who understands the role of the court the way the president has described it....That is: to interpret the laws, not to create policy." If that requires the so-called "nuclear option," then let's have the so-called "nuclear option."

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Posted at 10:33pm on Sep. 28, 2005 The Sky Is the Limit On Names

By Erick

Sadly, real life and work duties collided to prevent issuance of SCOTUS gossip earlier. For those of you having cold sweats, shakes, and other symptoms of withdrawal, I apologize. Now, on with the nothingness.

Nothing is exactly what I have. Tonight I talked with a very good source not in the White House, but close enough to it to know what is going on. He's one of those third party group guys who has been involved. What he says follows up on and equates to what others inside and outside the White House have told me today, but he has more depth.

"I have no clue who the nominee is," he says. "In fact, no one I have spoken to inside or outside the White House really knows who it is. We all feel more comfortable with who it is not than with who it is -- and I'm pretty sure it is not Gonzales."

He says to remember that, since the summer, "the White House has perfected the art of the screw up. The sheer incompetence of the staff to convey a message and consult anyone has been stunning. Sure, people are spoken to, but there is poor follow up, bad communication, and so much secrecy now that they are screwing things up. It is no longer the Bush Administration, it is the Bollix Administration. But, they also know how to misdirect. God, I hope August and September have been misdirections."

He says it is not really incompetence, but "a youthful arrogance that translates into incompetence." He says that has a lot to do with how the Joy Clement "disaster" went down.

The source goes on to explain that he disagrees with Manny Miranda's statement that the Social Conservatives have not been as clear as the Business Conservatives with their wants. "Look, unless the President is deaf, he has heard the base. Remember, it is the social conservatives who were out going door to door, not the business conservatives. He knows he owes them and he needs them. But, there is some noticeable frustration."

An example of that frustration, he says, is the reaction in some corners to Judge Roberts's nomination. "Short of John Roberts getting a sworn affidavit from Jesus Christ or personally overturning Roe v. Wade with a baseball bat and machine gun, some very vocal people on the right will not be happy with him and are marginalizing the rest of us.

"We all know the litany: Brown. If not Brown, Jones. If not Jones, Garza. If not Garza, Alito. If not Alito, Luttig. Here's a hint. It will be none of them. The first four have been too vocal on abortion. Luttig has been sabotaged by the Chamber and others because they don't think he would side with them on some key issues stemming from federal regulations. The President is not going to name anyone who has specifically written that Roe should be thrown out. It's not going to happen and people should deal with it."

So, who does he think it will be? "Senate staffers, White House staffers, and outside groups have been mentioning with more frequency Karen Williams. There is also Batchelder and Sykes, but I think Sykes is too young. I don't think it will be Corrigan. Sandra Day O'Connor is rumored to have told the President that, from her own experience, she thought coming from the state courts to the Supreme Court without going through the appellate level was and is too much. Whether she told him that or not, again rumor. But, she did say that in an interview too. That would rule out Cantero and Corrigan."

He did name one wild card, Judge Boggs. "Age is not going to be a factor. Harvie [Wilkinson] was not rejected because of his age. Boggs is over 60, but he definitely comes from a different walk in life." [Ed. Note: I have no freaking clue who Boggs is, so maybe he's the nominee].

So, to recap: no one knows anything and the parlor game continues. I'll be in Washington tomorrow, so I'll see some sources up close and personal. Oh, the source also agrees with the media that the announcement will be Friday, not Thursday.

Everything he says meshes well with all the other people I have talked to. Everyone is more comfortable with who is not on the list than with who is on the list.

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Posted at 7:52pm on Sep. 28, 2005 The View From Down Under

By AndrewHyman

Check out this op/ed from Australia, that came to my attention thanks to the Angry Clam over at Patterico. You've gotta read the whole thing. Here's the end of it:

[T]here have ... been ... routine calls for an Australian bill of rights. If we take that path, we should expect the pandemonium of a US-style political appointment process. It is inevitable when you turn judges into politicians. As long as Australian judges are only asked to opine on relatively technical questions of black letter law, they will remain implementers of policy, not makers of it. They will be technicians, not politicians. And that will mean their appointment is a technical, not a political process. That might make for a rather boring affair, but, to borrow from George Will, in a well-functioning society some things are meant to be dull.

Ironically, phrases like "due process" were intended to have a precise technical meaning in our Bill of Rights. The problem has been judges who couldn't resist the temptation to wield a mightier gavel.

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Posted at 5:57pm on Sep. 28, 2005 From All Walks of Life . . .

By Carol Platt Liebau

This piece notes that the President said that he is considering people "from all walks of life" as Justice O'Connor's successor. Wonder what (if anything) that means . . .

Update: Could it bave anything to do with the speculation that White House counsel Harriet Miers is under serious consideration? As the linked piece points out, Miers doesn't have judicial experience, although her legal background is notable.

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Posted at 12:29pm on Sep. 28, 2005 Question of the Day

By Erick

I cannot take credit for this thought. It's from a friend. But, let's put this on the table:

Would the President really nominate the first Hispanic to the United States Supreme Court without that Hispanic being his really good friend, Alberto Gonzales?

If yes, then ignore the rest of this. If no, then that leaves us to probably outcomes: (1) Start trying to say Justice Gonzales or (2) Keep on saying Madam Justice [insert guess here].

Personally, I do not think it will be Gonzales. And, having pondered the question, I think then we will not be seeing an Estrada, a Garza, a Cantero, or any other Hispanic. Keep watching the 4th Circuit. It is time for a Southerner anyway.

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Posted at 12:06pm on Sep. 28, 2005 Batchelder not too old

By Quin

One repeated comment that really irks me is the idea that Batchelder is too old. At 61? Hardly. Ruth Bader Ginsburg was 60 when Clinton appointed her. And she seemed frail even then. If Batchelder is appointed, she can be expected to serve about 15 years, which is plenty long enough.

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Posted at 9:54am on Sep. 28, 2005 <em>New York Times</em>: Wrong on the Facts

By Marshall Manson

Yesterday, the New York Times reported this:

Senator Charles E. Schumer, Democrat of New York, asked Judge Roberts for his views on New York Times v. Sullivan, the 1964 Supreme Court decision that revolutionized American libel law. Judge Roberts's response was terse and cautious, but it contained a faint echo of a blistering 30-page critique of the case that he wrote as a White House lawyer in the Reagan administration in the early 1980's.

The story goes on to quote libel exerts and constitutional lawyers to paint a portrait of what Mr. Liptak seems to think Judge Roberts' view on libel law might be.

There's just one problem: Roberts didn't write the memo on which the Times story is based, as the Times revealed in this by-lined correction this morning. Yesterdayââ‚â„¢s story is simply wrong.

The original story says unequivocally that Roberts wrote the memo. The correction reveals that that critical memo was unsigned. Apparently, the only reason that the Times believed Roberts wrote it was that it had been mistakenly included with some of his files from his days in the Reagan administration. But if it was unsigned, why didn't Mr. Liptak take two minutes and call the White House to confirm authorship?

Unfortunately, this is the kind of sloppy, slip-shod journalism that has become all too common at the Times. Indeed, even today's correction leaves much to be desired. Rather than just admitting the mistake, Mr. Liptak tries to put the toothpaste back in the tube by pointing to another memo -- this one apparently signed by Judge Roberts -- that mentions the landmark libel case in question. Why bother? If the story was wrong yesterday, it's wrong today.

Finally, this whole mini-drama underscores the folly of trying to expose judicial nominees' views on the issues. As I've said many, many times: we all ought to stop treating judicial nominees like politicians by attempting to fix campaign platforms on them. It doesn't work. And it only serves to further politicize the judicial branch.

UPDATE: Thanks to Stephen Spruiell at National Review's Media Blog for noticing this post. Stephen has a lot more on the story and will be all over it throughout the day.

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Posted at 9:34am on Sep. 28, 2005 News Clips, Wed. 9/29

By Marshall Manson

Today's coverage seems to represent a bit of a calm before the coming storm, but Jonah Goldberg's USA Today column is a must-read.

New York Times Correction: Libel Memorandum Attributed Falsely to Court Nominee

Adam Liptak, New York Times

Commentary: What we've learned (about Democrats) from the battle over Roberts

Jonah Goldberg, USA Today

Commentary: One sided 'balance'

Manuel Miranda, Opinion Journal

Commentary: Democrats' Special Interest Problem

Mark Shields, Creators Syndicate

'Gang of 14' backing Roberts

Charles Hurt, Washington Times

Filibuster Showdown Looms In Senate

Dan Balz and Amy Goldstein, Washington Post

GOP Presses Dems on Second Court Nominee

Jesse Holland, Associated Press

High Court Selection Process Winds Down

Deb Reichmann, Associated Press

Bush Close to Concluding Talks on Next Court Choice

Bloomberg News

Engler takes manufacturing group into Supreme Court nomination fray

Ken Thomas, Associated Press

Sarbanes to oppose confirming Roberts; Senate votes tomorrow

Gwyneth Shaw, Baltimore Sun

Levin to support Roberts' nomination to Supreme Court

Ken Thomas, Associated Press

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Posted at 12:42am on Sep. 28, 2005 Howard Dean Seeks "Fight to the Death"

By AndrewHyman

The Washington Post reports that Democratic Party Chairman Howard Dean is railing against the not-yet-nominated nominee.

Dean said a straight party-line vote would show Democratic unity but would not be sufficient to block a nominee. "That's not a fight to the death," he said. "A fight to the death is a filibuster, which is the only way we can reject an unqualified nominee -- because the Republicans don't seem to have any qualms about putting unqualified people in all manner of positions all over the government."

....

"If we lose, better to go down fighting and standing for what we believe in, because we will not win an election if the public doesn't think we'll stand up for what we believe in."

That's right, stand up and refuse to vote for what you believe in. Sure, that'll work. Don't try to legitimately persuade GOP Senators or the American people. Just stonewall. Yeah, that's the ticket. This guy is qualified?

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Posted at 8:04pm on Sep. 27, 2005 Add Another Name

By Erick

According to the Associated Press, we need to add Harriet Miers to the list of potential nominees.

I give up.

[UPDATE] Given all the emails I'm getting from you people (and I use "you people" endearingly), let me say that I do not think Miers is the nominee. I do not think Gonzales is the nominee. I do not think Owen is the nominee. I have no freaking clue. I know the buzz is heavy toward Williams, which is just the way it was with Clement. I know that the President wants someone of Roberts' caliber, which means we cannot discount Luttig (who I still think has a good shot). But I otherwise don't know so there is no reason at yelling at me that I'm wrong. I'm just the freaking messenger and conveyor of information. I am, however, beginning to get some strong senses on this from sources, which I'll share tomorrow. But only in the sense that there are several names we can definitely strike from the list. That is all.

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Posted at 7:52pm on Sep. 27, 2005 Cantero Speculation

By Erick

Singapore Sling, in the comments to the Williams thread, writes

While I canââ‚â„¢t claim to have any sources here in Singapore, something has been missed from this analysis.

Doesnââ‚â„¢t anyone think it is a little odd that of all times, AG Alberto made a short visit to a certain city in Florida?

A certain city that is home to a certain judge on the Florida Supreme Courtâ₦â₦â₦â₦.

Isnââ‚â„¢t Alberto one of the top advisors to the Prez on judicial nominationsâ₦..

Finally, wouldnââ‚â„¢t the nomination of a certain state supreme court judge to the US Supreme Court make it virtually impossible for Bill Nelson to vote againstâ₦considering he is up for election in 2006?

Just thinking out loud here.

That is all very interesting and, thinking outside of the box, seems like solid speculation. I am told that Gonzales met with Jeb Bush. Anyway, one of the commenters who says Williams is not the pick is in a good position to know. But, the buzz is strongly in her favor.

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Posted at 6:30pm on Sep. 27, 2005 Justice Williams?

By Carol Platt Liebau

There could be some truth to the rumors of a Williams nomination -- and here's why. Having a qualified, conservative female nominee from Orangeburg, South Carolina makes strategic sense -- given that one of "Gang of 14" senators who'd be needed in the event of a filibuster is Sen. Lindsay Graham (R-SC).

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Posted at 5:01pm on Sep. 27, 2005 Schizophrenia in the Nominations Process<br>The Afternoon Buzz is Karen Williams

By Erick

As if the process has not been schizophrenic enough, I have received more confirmed reports that Karl Rove has been pushing Alberto Gonzales. I also have more confirmed reports that Priscilla Owen is still near the top.

But, late this afternoon I have begun receiving word that we should start focusing on Orangeburg, South Carolina, the home of Judge Karen Williams. The buzz is incredibly strong, but I dare say the buzz matches that of the Joy Clement buzz (and we all know what happened to her).

As Drudge would say, developing . . .

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Posted at 3:28pm on Sep. 27, 2005 A little perspective...

By Marshall Manson

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Posted at 2:23pm on Sep. 27, 2005 Is Gonzales Campaigning?

By Erick

The Washington Prowler seems to think so.

AG Gonzales was down in Florida yesterday for a speech, and what he said during and after in a question and answer session may shed some additional light on both his thinking and that of the White House's vis a vis the SCOTUS nomination.

Gonzales had some very nice things to say about Chief Justice William Rehnquist, his judicial philosophy and tenure on the court. One couldn't help get the sense that Gonzales was in a bit of campaign mode. Keep in mind that Gonzales remains a key adviser on the SCOTUS nomination, particularly because he knows as much if not more about the talent out there, particularly on Bush judges at the Federal level.

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Posted at 12:28pm on Sep. 27, 2005 On Miguel Estrada

By Carol Platt Liebau

I don't know Miguel Estrada well, having attended a small dinner party with him once over ten years ago. My impression was that he is brilliant and quite conservative. However, my understanding had been that he did not wish to be considered. Certainly, his entire view could change if he's actually offered the job -- but with the fight that he'll face, it would certainly seem reasonable for the nominee to be someone who is willing to fight for the job because he wants it badly . . . .

And setting the particulars of an Estrada nomination aside, here's one further consideration for The White House: Temperament. Whoever the nominee is, he/she will be significantly benefited by a disarming personality that makes it difficult for the Democrats to attack without being revealed as creates of the most bloodthirsty and rabid kind. In my view, arrogance (real or perceived) could be a fatal flaw in any nominee -- male or female, Latino, white, black, green or purple.

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Posted at 11:57am on Sep. 27, 2005 On Priscilla

By Erick

Steve Prost writes in the comments:

did you notice the comment in Erickââ‚â„¢s report: ââ‚Å“Many in the legal community think Priscilla Owen has the nodâ₦ we know the President is fond of her. Unfortunately, some also think Owen is not strongly pro-life and WOULD NEVER VOTE TO OVERRULE Roe v. Wade.ââ‚? Iââ‚â„¢ve been warning of that but this is the first time I see that my opinion is impliedly shared by some powers that be (?). Does this mean some that know her well have this opinion beyond my attempting to sense this from her opinions being silent on even a vigorous originalism as even a Corrigan has been.

Well, I've been saying this for a while. I deeply distrust Owen. I do not know her, but I have talked to plenty who do. There is a very good consensus that Owen "has not time for the pro-life movement" and that "even Gonzales does not act so sneeringly to prolifers" as Owen does. Some think she is an intellectual lightweight who has benefitted from Bush cronyism loyalty more than anything else. I have not met a single person who knows her well who really and truly believes that Owen would ever vote to overturn Roe v. Wade, despite what the Democrats seem to think.

If we have to have an unknown, I at least want an unknown that I feel more sure about that Owen. Heck, even Joy Clement would be better. At least I know where she stands on the issue and I'm pretty sure it is to the right of Owen.

But that's just Steve and me.

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Posted at 11:38am on Sep. 27, 2005 Too Many Names

By Erick

See here:

Widely mentioned candidates include federal appellate judges Janice Rogers Brown, Edith Brown Clement, Edith Hollan Jones, Emilio Garza, Alice Batchelder, Karen Williams, J. Michael Luttig, J. Harvie Wilkinson, Michael McConnell and Samuel Alito. Attorney General Alberto Gonzales, former deputy attorney general Larry Thompson, lawyer Miguel Estrada and Maura Corrigan, a member of the Michigan Supreme Court, are also considered possibilities.

And no, I just don't think Janice Rogers Brown is on the real list. Wipe the drool people, wipe the drool.

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Posted at 11:14am on Sep. 27, 2005 The Great Unknown

By Erick

With a Presidential announcement any day regarding Sandra Day O'Connor's replacement, it is time to review what we know and what we do not know.

First, we know that many in the legal community think Priscilla Owen has the nod. Robert Novak's reporting has been consistent with that assumption. We also know that she had a private meeting with the President. Lastly, we know the President is fond of her. Unfortunately, some also think Owen is not strongly pro-life and would never vote to overrule Roe v. Wade.

Second, I have five unconnected sources, including two inside the White House, who are telling me that Rove thinks Gonzales needs to be considered and that Gonzales is more conservative that we all think. The Washington Post has had similar information. One source alone would be rather inconsequential, but five unconnected people telling me the same thing makes me think this is credible. Nonetheless, I agree with K-Lo. I do not think Alberto Gonzales will become Justice Gonzales. I just don't see it happening.

Here's why. The conservative base got a very upset stomach when it appeared all but certain that Joy Clement was the nominee. The base is already against Gonzales. While Rove may be doing his calculations that there is enough on the court's docket to prove Gonzales's bona fides before the midterm elections, the base will be apoplectic for a good long while and the President will have a lot of difficulty moving what little remains of his agenda until people realize Gonzales is actually a conservative. Additionally, what went under the radar for most was that while Rove is pushing Gonzales, there are doubts as to how easily Gonzales could be confirmed. The Democrats are itching for a fight and Gonzales gives them lots to fight with.

If the President wants to rally the base, choosing Gonzales would be a disaster. The base is already angry over spending and Gonzales will not help. This does not make sense and I do not think it will happen.

What we do not know is very obvious. Who the nominee will be is a great mystery right now. Owen is up there. I still think Luttig is in play based solely on my gut and his qualifications. One name that started surfacing in my email and IMs over the past twenty-four hours has been Diane Sykes. Batchelder's name keeps coming up too.

Perhaps the most interesting name that keeps surfacing is that of Miguel Estrada. Former Solicitor General Ted Olson has been a big proponent of Estrada's, but it is unclear that Estrada wants to try that fight again -- especially when the stakes are so much higher. I am, however, inclined to think the next justice will come from one of the United States Courts of Appeal and Estrada does not fit.

The White House is doing an even better job of keeping the lid on this nominee than the last. That leads me to believe that all the outside chatter is meant to misdirect us from the actual nominee. I have said repeatedly here and elsewhere that Karl Rove and President Bush both believe one of the main reasons the Republicans have been so dominant since 2000, is because of a conservative base who think judicial victory is just around the corner. That to me means that we will see the President nominate a conservative -- perhaps not a Jones or a Garza, but a conservative of high professional reputation with a paper trail that does not contain the specific answer to the question "how definite has the nominee been on the issue of overturning Roe?"

We'll find out who it is rather soon.

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Posted at 10:40am on Sep. 27, 2005 News Clips, Tues. 9/27

By Marshall Manson

Sources: Bush could announce next court pick Friday

Dana Bash, CNN.com

Roberts Debate Starts, but Outcome Is Clear

Carl Hulse, New York Times

Roberts seen headed to easy Senate confirmation

Charles Hurt, Washington Times

Roberts Sails Toward Confirmation

Jesse Holland, Associated Press

A prequel for the next showdown

Carolyn Lochhead, San Francisco Chronicle

Mikulski to oppose Roberts

Gwyneth Shaw, Baltimore Sun

Editorial: Roberts cheers and jeers

Washington Times

Leahy felt blindsided by Sen. Reid

Alex Bolton, The Hill

4 Democrats on '08 List to Vote Against Roberts

Ron Brownstein, Los Angeles Times

Commentary: For Roberts, Hubris And Heartstrings . . .

George Will, Washington Post

Steppingstone Court Scores Another One

Darlene Superville, Associated Press

Clues on How Roberts Might Rule on Libel

Adam Liptak, New York Times

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Posted at 1:20am on Sep. 27, 2005 Did Roberts Pave the Path for Estrada?

By Ryan K

There is more speculation (here and here) of an Estrada pick. If the President is happy with the factors that led to a successful Roberts nomination, Estrada can provide through his benign but Roberts-eque work experience and charming style a strikingly similar scenario with some added bonuses that were mentioned in this post. Roberts fortuitously cleared away Daschle's excuse to filibuster Estrada about the lack of White House cooperation in releasing sensitive and privileged documents.

Whether Estrada is the best pick has been hotly debated in the comments of numerous posts on confirmthem (including here, here, here, and here).

Nonetheless, Roberts has certainly shown one reproduceable path to a successful confirmation that Estrada is in a unique position to mirror.

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Posted at 1:18am on Sep. 27, 2005 John Marshall....

By AndrewHyman

was born 250 years and two days ago, as our Marshall mentioned earlier today. Of course, his most famous statement was this one:

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." Marbury v. Madison, 5 U.S. 137, 177 (1803).

Not many people realize that, seven years later, Marshall put the finishing touches on that statement:

"It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments." Fletcher v. Peck, 10 U.S. 87, 136 (1810).

The best way to honor John Marshall would be for the judiciary to stop prescribing general rules for the government of society, and to repeal the ones it has already prescribed. IMHO.

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Posted at 3:46pm on Sep. 26, 2005 A.G. Gonzales

By Marshall Manson

UPDATE: Lots of people have dismissed out of hand the notion that the President might name Gonzales. As I said in a comment to this post, I likewise remain pretty convinced that the President won't pick the Attorney General. Nevertheless, as a strong and energetic supporter of Judge Roberts' confirmation (not to mention the lower court nominees), I thought it was important to express an opinion on the possibility.

I wanted to comment on Erick's post below about the Attorney General. But I need to first emphasize that I am only speaking for myself, and I intend the tone of this post to be nothing but respectful.

In more than two years of working in and around the fight to confirm the President's judicial nominees, I have not heard a single person express anything but concern over a Gonzales nomination. This includes both conservatives and libertarians. It also includes so-called social conservatives and the business community. My discussions with attorneys and other vetters whom I respect indicate a record that deeply worrisome. There is nothing to lead anyone to believe that the Attorney General would be a justice who puts the Constitution first. As a strong supporter of the President, I worry that if he nominates the Attorney General, many of the President's strongest allies would view the move as breaking his campaign promise.

And, while I deeply respect the White House's political insight and acumen, I have a hard time understanding how nominating the Attorney General makes any short-term political sense. General Gonzales will face a brutal confirmation fight. And those groups and individuals who have been key allies of the White House in these fights will -- without question -- sit this one out (if not openly oppose the General Gonzales' confirmation). Indeed, with the President's supporters already on edge over the raft of new federal spending, I fear an open revolt if he selects the Attorney General to serve on the Supreme Court.

So why do it? Perhaps some believe that the President will gain politically if General Gonzales' nomination is defeated. But a Gonzales defeat would conjure cheers from the right and a chorus of declarations from the Left and the MSM that the President has been rendered a politically irrelevant lame duck. It would be a body-blow to the President's political standing. And it would alienate the conservative base. Perhaps those pushing the Attorney General are arguing that it will improve the GOPs standing with hispanic voters. Maybe it will. Maybe it won't. But if the Attorney General is defeated, I can't imagine that it will produce any meaningful new support from hispanics. Meanwhile, the President will certainly offend a large segment of his conservative base. And, as the White House knows a lot better than I do, the Republican gains over the last six years are due -- more than anything else -- to this President's ability to appeal to and mobilize the base.

One final aside. Erick says that there is a belief that the President can repair any damage with the base before the midterms. If that's really the sentiment, I can't imagine a riskier proposition. Why would the President want to spend his limited time repairing his relationship with his best supporters when there are so many other things to do? And what reason is there to think that he would actually succeed?

Let me end by disclaiming this rant a little. Over the past week, we've heard countless rumors about possible nominations. None has proven any more credible than the next. And since Justice O'Connor announced her retirement, I have resisted the temptation to comment on the Attorney General's possible nomination for that reason. Even now, I would be willing to bet that I am breaking my considered silence for no reason. Every indication, prior to an hour ago, was that the Attorney General was not a candidate. Nevertheless, on the off chance that anyone who really matters will actually hear it or care, I wanted to make my opinion known. And I'll underscore that my concerns are shared and amplified by many, many others.

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Posted at 2:59pm on Sep. 26, 2005 Reading the Tea Leaves . . .

By Carol Platt Liebau

This story seems consistent with the post below. It's titled "Bush Drops 'Diversity' Hint About Next Nominee."

Let's just hope that President Bush doesn't squander the support of his most loyal constituency -- and give up on the possibility of restoring a Supreme Court devoted to interpreting, rather than making, law.

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Posted at 2:51pm on Sep. 26, 2005 Karl Rove to POTUS: Put Gonzales on the Court

By Erick

Word in legal circles is that Priscilla Owen is set to become the next justice appointed to the United States Supreme Court. Unfortunately, I have received reliable information late this afternoon that Karl Rove, among others, is making a last minute push for the President to consider Alberto Gonzales, despite previous assurances from inside the White House, Justice Department, and Senate that Gonzales was not being considered.

A third party source tells RedState that Rove is pushing for Gonzales and that Larry Thompson's name has gone off the radar. This afternoon I contacted my White House source who says Karl Rove "believes that Gonzales is conservative and, given the current docket, will have time to prove it before midterm elections."

The source says it is not a guarantee and there are significant issues at play -- including confirmability. I have no word on other names, other than the usual that are already out there.

Looks like I'm going to be headed to the driving range soon.

One last point from my White House source. The source says some conservatives inside the White House, including the source, feel some "conservative frustration," i.e. conservatives are being seen, but not heard.

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Posted at 2:43pm on Sep. 26, 2005 Bush's SCOTUS "Strategery" On Abortion

By Lorie Byrd

Ankle Biting Pundits has commentary on the "strategery" relating to the timing of abortion cases to he heard by the Supreme Court according to a New York Times story published today.

The Bush administration has asked the Supreme Court to reinstate a ban on a procedure that critics call ''partial birth'' abortions, setting up a showdown that could be decided by the president's new choice for the court.

The Supreme Court has already scheduled arguments in another abortion case, involving New Hampshire's parental notification statute. That case also asks whether the law is unconstitutional because it lacks an exception allowing a minor to have an abortion to protect her health in the event of a medical emergency.

The court should deal with both cases, Solicitor General Paul Clement said in the appeal, which was filed Friday and released on Monday. The earliest that justices could review the federal law, known as the federal Partial-Birth Abortion Ban Act, is next spring. By then, the court could have two new members.

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Posted at 12:53pm on Sep. 26, 2005 Judge Callahan

By Marshall Manson

I'm also hearing this morning that Judge Consuelo Callahan remains on the list of possible picks for the next nomination. I know next to nothing about her, so I will reserve my own judgement pending more information. But I can say that over the last several days, I have spoken to many conservative leaders who are not terribly excited about her possible nomination. Indeed, I have heard from some of them expressions of outright concern. Repeating -- I have no personal opinion as yet since I lack any information, but the concerns I've heard from others are worth noting.

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Posted at 12:50pm on Sep. 26, 2005 This morning's buzz...

By Marshall Manson

The Monday morning speculation about the next nomination centers on Judge Diane Sykes. She currently sits on the 7th Circuit and previously sat on the Wisconsin Supreme Court. Lots more information in the links that Andrew has posted down the right side of the home page.

UPDATE: Early comments focus on her age. According to the Justice department she is either 47 or 48.

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Posted at 12:17pm on Sep. 26, 2005 Please, Please Tell Us Now!

By Carol Platt Liebau

For my money, it would be a stroke of genius for the President to name his next Supreme Court nominee before the final vote on John Roberts, as discussed below.

If -- as a result of their opposition to the new nominee -- Democrats decide to oppose Roberts en masse, they risk showing the American people (who, as polls indicate, solidly back Roberts' confirmation) the nakedly partisan nature of their "advice and consent."

If, instead, the Dems decide to support Roberts in order to dramatize their opposition to the pending nominee, well, then they've essentially ratified his pratice of declining to prejudge cases, etc. etc.

Of course, the former phenomenon is more likely than the latter -- because all the left wing special interest groups like PFAW, NOW, etc. can command substantial portions of the Democratic caucus. But in any case, it would be entertaining to watch them squirm.

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Posted at 12:00pm on Sep. 26, 2005 The Greatest Chief Justice

By Marshall Manson

Saturday was the 250th anniversary of the birth of Chief Justice John Marshall, who was, without question, the greatest Chief.

Marshall was a Virginian and a hero of the American Revolution. He was an outstanding lawyer. And during his 34 service on the High Court, he demonstrated his Solomon-like legal wisdom.

There was no shortage of tributes paid to the Chief Justice this weekend. But Iââ‚â„¢d like to draw your attention to three in particular, and I've added my own thoughts at bottom.

First, Matthew Franckââ‚â„¢s heart-felt post over at Bench Memos urges readers to take up a glass of Madeira and drink a toast to the Chief. As a man who shares Prof. Franckââ‚â„¢s affinity for Madeira, I was all too glad to do so.

Second, make sure to read this Washington Times op/ed by Professors David Marion and Roger Barrus, both of historic Hampden-Sydney College. They highlight an often overlooked element of the Chiefââ‚â„¢s jurisprudence and his non-legal writings: his belief in the importance of the ââ‚Å“peopleââ‚â„¢s virtues.ââ‚?

Marshall's reputation as the greatest and most influential of America's judges has obscured the fact Marshall assumed his duties as chief justice in 1801 amid charges the institution he would lead had been radically politicized by Federalists like President John Adams, who appointed him. Thomas Jefferson and many of his followers -- the "Republicans" of the day -- questioned whether a Marshall court would adequately protect the democratic rights and liberties of the people. The Alien and Sedition Acts, passed in 1798, were taken as conclusive proof of the Federalists' antidemocratic tendencies.

In short, the political climate in 1801 was not all that different from the present, as Democrats and Republicans square off over qualifications of candidates for judicial offices and even more over the role of the federal courts in government.

The situation then and now bears out Alexander Hamilton's observation that the judicial branch, dubbed by him as the "weakest" of the departments, would be critically important to preserving the bona fides of the republic.

Marshall and Jefferson were political opponents but were in complete agreement that the success of self-government required the intellectual and moral development of the American people. For people to be able to govern themselves politically, they must be able to govern themselves individually.

[snip]

Unwilling to leave much to chance, Marshall engaged himself in shaping the nation's cultural climate. His biography of George Washington was manifestly an exercise in civic education. His commitment to civic education was in evidence as early as 1784, when he joined James Madison, James Monroe, and others to form the Virginia Constitutional Society, established to provide instruction in vital matters of public interest.

[snip]

Here there is a profound difference between Marshall and his jurisprudence on the one hand and many contemporary jurists on the other. The attention Marshall devoted to the people's virtues in his writings is notably absent in much contemporary jurisprudence. A recognition of the constitutional significance of culture does not appear in the decisions that have defined the right of privacy out of emanations from penumbras around a number of constitutional amendments.

[snip]

Perhaps the 250th anniversary of Marshall's birth will lead to a reconsideration of his jurisprudence, which was much more respectful of the role of religion in public life because it was informed by a recognition of the importance of character and culture in democratic self-government.

I am glad to benefit once again from the professorsââ‚â„¢ insight, as I did so many times during my time at Hampden-Sydney. Indeed, if I know anything of Constitutional law, it due only to Dr. Marion's year-long course as well as his patience and expertise. (But the logical blunders and errors of argument are all mine.)

Third, is columnist George Willââ‚â„¢s own tribute to the Chief. Willââ‚â„¢s column, as usual, is beautifully written, so I am glad to let it speak for itself. Take a moment and read it all.

For my own part, Iââ‚â„¢ll add this personal note. Growing up in Richmond, Virginia, it seemed that everyone could readily trace their lineage to George Washington, Thomas Jefferson, or James Madison. (And if one could find George Washington in the family tree, that also got you Robert E. Lee ââ‚• a twofer that led to no end of bragging.) I was never able to point to such star-power in my own family tree. But I never much cared. Thatââ‚â„¢s because at a young age, one of my wiser relatives told me that the great Chief Justice lurked in our past and took the time to explain why that was important.

I recall learning that John Marshall had helped to ensure that ours would be a nation of laws, where the law protected the citizens. And I learned that his contribution was critical to building a nation that would preserve the test of time.

This led me to a simple conclusion: there are many figures from American history that are better known that the Chief Justice. But itââ‚â„¢s hard to argue that many were more important.

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Posted at 10:49am on Sep. 26, 2005 Timing of the Next Nomination

By Marshall Manson

Erick has another news-filled post on the next nominee just below.

And I'm happy to be able to add a little nugget of my own: I can confirm Erick's report that we should expect the next nomination to be announced this week -- possibly before the final vote on Roberts.

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Posted at 10:21am on Sep. 26, 2005 News Clips, Mon. 9/26

By Marshall Manson

You know the Dems are in a box when even the Chicago Tribune is ripping Sen. Obama.

Editorial: The Right Vote
Washington Post

Commentary: Invoking the Clinton Precedent

Ronald Cass, Los Angeles Times

Editorial: Democrats and John Roberts

Chicago Tribune

Editorial: Confirm Roberts

New York Post

Roberts has solid support as final debate begins

Kathy Kiely, USA Today

Roberts Confirmation Heads to Senate Floor

Jesse Holland, Associated Press

How Some Senators Plan to Vote on Roberts

Associated Press

Roberts vote splits Democrats

Donald Lambro, Washington Times

Salazar to back Roberts for court

Chris Frates, Denver Post

Commentary: Justice Breyer Proposes a New Path for the Post-Rehnquist Court

Adam Cohen, New York Times

Editorial: The Next Nominee

Washington Post

Bush Again Faces Tough High Court Choice

David G. Savage and Richard B. Schmitt, Los Angeles Times

Commentary: Chick List

Melanie Kirkpatrick, Wall Street Journal

Commentary: Getting Ready for the Next Time

Byron York, National Review

Editorial: Thoughts on Associate Justices
Washington Times

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Posted at 8:34am on Sep. 26, 2005 Justice Owen?

By Erick

RedState's sources tell us to expect a Presidential announcement any day concerning Sandra Day O'Connor's replacement. With a vote coming very soon on Roberts, many Republican senators and White House staffers expect the President to make his announcement soon.

Who the nominee will be is a mystery. What seems sure is that Larry Thompson's star has fallen just as fast as it rose. Back on the horizon is Priscilla Owen, who the White House seems to think will placate conservatives. Across the board, sources outside the White House feel like Judge Owen is the nominee. These same sources almost totally agree that Owen will not get confirmed, but her nomination fight will help re-energize the Republican base. Inside the White House, sources are not so sure. There are a number of names still being bandied about including Judge Luttig. Those closest to the President are staying quiet.

What is unclear is whether the conservatives I've been speaking with are talking in circles to each other. All do seem to agree, however, that the White House is keeping its cards hidden very well.

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Posted at 6:28am on Sep. 25, 2005 ConfirmThem Poll Results and Prediction Accuracy

By Ryan K

Over 1,000 participated in the ConfirmThem favorite nominee poll. Voters were able to select more than one nominee, with the goal of finding the consensus favorites. Here are the top results:

FEMALE:

1. 39% Edith Jones
2. 30% Janice Rogers Brown
3. 18% Priscilla Owen

MALE:

1. 26% Michael Luttig
2. 19% Emilio Garza*
3. 17% Miguel Estrada

* In the past week, Garza's vote total jumped very disproportionately (jumped by 8%), so be skeptical of these results. Nonetheless, I think the results accurately reflect the sentiment of most readers.

Will the President choose amongst the above six favorites? Probably, though there are at least a dozen others most conservatives would also be happy with. We'll know for sure in the next week or two.

And, please, hold your applause for another accurate ConfirmThem foresight - my accurate anticipation in July that Hillary Clinton would vote against Roberts, despite rumors and great skepticism otherwise ;) . This was before I read Hillary's pro-activist, feel-good liberal litmus test: "Whether Judge Roberts is truly a guardian of the rule of law who puts fairness and justice before ideology.â�

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Posted at 7:59pm on Sep. 24, 2005 No "Free Pass" for Republican Senators

By Carol Platt Liebau

In a profoundly silly story, The New York Times is trying to pretend that there is trouble brewing among Republicans in the Senate with regard to the next Supreme Court nomination. This story, headlined "Republicans Say Next Court Nominee Won't Get Free Pass" is apparently the best it can do.

From the moderate side, it quotes Lincoln Chafee (RINO-RI) and Olympia Snowe (R sometimes-ME).

Mr. Chafee said he would apply a more skeptical standard to the next nominee because of the balance of the court and might even oppose a jurist similar to Judge Roberts. "I will be looking very carefully" at the next nominee's views on privacy rights, "separation of church and state," and the scope of federal power, he said.

Lincoln Chafee is up for reelection next year. Obviously, he's posturing for the general election, but it's worth his while to remember who his friends are -- and to keep in mind that he may have a conservative primary opponent. He should count himself lucky that he's got White House support given his votes against Priscilla Owen and William Pryor.

Olympia Snowe supported Priscilla Owens and Janice Rogers Brown, but has now told The Times that she might not support either for the Supreme Court, adding this nonsensical gem:

""This is certainly a different level of evaluation," Ms. Snowe said, "especially because of the balance of power on the court."

Snowe isn't being targeted in her re-election race, so she has no political excuse for her posturing. And note the contrast -- set forth in the linked piece -- between the liberal intransigents that the paper quotes, and the conservatives. Tom Coburn notes that he wouldn't vote for anyone who would tip his/her hand on Roe v. Wade, a proper position. Trent Lott ends up noting that he could vote for almost anyone President Bush is likely to send up. Not quite the same as the silliness Chafee/Snowe are peddling.

Seems to me that the recalcitrance is coming from only one side of the party -- and it's not the right wing. All the pious "moderates" are well advised to remember the outrage that the "Gang of 14" deal elicited, and realize that was a pale shadow of the reaction that would result from bucking President Bush on a nominee.

And conservatives, take heart: It takes 51 votes to confirm, and 51 votes to trigger the constitutional option.

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Posted at 3:07pm on Sep. 24, 2005 ConfirmThem Readers in the Know

By Carol Platt Liebau

Is it too obnoxious to point out that some of Professor Cass' point about the other "Ginsburg precedent" was made here at ConfirmThem, back on August 5?

Itââ‚â„¢s worth remembering that Ruth Bader Ginsburg was nominated to succeed Justice Byron ââ‚Å“Whizzerââ‚? White ââ‚” a conservative. There wasnââ‚â„¢t any hand-wringing on the Republican side (and certainly none in the press!) about whether she would ââ‚Å“shiftââ‚? the court to the left . . . it was understood that she would. It was also understood that elections have consequences, and this was one of them.

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Posted at 2:23pm on Sep. 24, 2005 The Clinton Precedent

By Marshall Manson

Prof. Ronald Cass, who is also the new co-chairman of the Committee for Justice, has an op/ed in this morning's Los Angeles Times that makes a critical point about the Left's bogus balance argument.

Cass points out that Justice Byron White was one of only two votes against the original Roe v. Wade decision and a dissenter in the Casey case. When given the opportunity to replace Justice White, however, President Clinton selected Ruth Bader Ginsburg, former General Counsel for the ACLU. Where was the consideration of balance? Of course, there was none.

With the court so closely divided, what did Clinton do to preserve the balance? Did he replace White with another conservative, someone equally clear that there is no constitutional protection for abortion? He chose the former general counsel of the American Civil Liberties Union, a leading liberal law scholar whose special interest was women's rights: Ruth Bader Ginsburg. Any question how close she was going to be to White?

The president did what presidents always do. He picked someone he thought would be a good justice according to his own views. He didn't worry about preserving the balance on the court, and he certainly didn't worry about maintaining the court's division over abortion.

With a 56-44 Democratic majority in the Senate, Clinton didn't worry about much other than replacing White with someone his party approved of and the GOP would credit as sufficiently accomplished to do the job. Ginsburg, the strongly pro-choice liberal judge and former law professor, fit that bill. Whether or not you like her positions on legal issues, Ginsburg is a smart, skillful lawyer and judge. And she garnered 96 of 99 votes cast on her confirmation ââ‚” including the overwhelming majority of pro-life Republicans.

[snip]

It's time to return to the understanding that presidents get to pick the judges they want, as long as they're qualified for the job, and that senators are voting not on whether a nominee conforms to their preferences but on whether he or she shows the competence and temperament necessary to the judicial role. It's time to recognize the Clinton Precedent as the benchmark for what presidents do.

So as you hear the Left arguing for balance on the court, Cass has provided just one more illustration of just how empty the balance argument really is.

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Posted at 2:02pm on Sep. 24, 2005 W. Post Gets It Right

By Marshall Manson

An editorial in this morning's Washington Post highlights the crass obstructionism of the Left and too many Senate Democrats. But the key observation as we all begin to look toward the next nomination is this one:

The liberal groups have made clear that they will oppose any nominee from this administration, regardless of qualifications, temperament or testimony.

Regular readers of this blog will wonder why it took the Post so long to recognize the obvious. But when even the Left's friends in the MSM are pressuring them to see sense, it certainly helps our efforts in the future.

Here's a bit more from this important editorial, but go ahead and read the whole thing:

IT SHOULDN'T BE necessary to write in praise of the three Democratic members of the Senate Judiciary Committee who this week voted in committee to confirm John G. Roberts Jr. as chief justice of the United States. Supporting overwhelmingly qualified members of the opposite party for the Supreme Court used to be the norm, not an act of courage. Yet, set against the general opposition from Democrats to the nomination, and truly intense pressure from interest groups, the votes cast by ranking Democrat Patrick J. Leahy (Vt.) and Wisconsin's Herb Kohl and Russell Feingold took guts. Their votes ensure that Judge Roberts will not take the helm of the judiciary perceived as the representative of only one party, and they guarantee that at least some Democrats -- albeit sadly few -- will have the moral authority to demand Republican support for qualified liberal nominees in the future.

The larger Democratic opposition to Judge Roberts represents a disturbing departure from longtime Senate practice.

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Posted at 7:55pm on Sep. 23, 2005 Roberts Versus Scalia and Thomas Re. Due Process

By AndrewHyman

In his answers to written questions dated September 21, Judge Roberts was asked this question by Senator Schumer, about the controversial doctrine of substantive due process:

You said repeatedly at your hearing that the liberty element of the due process clause of the Fourteenth Amendment provides substantive as well as procedural protections. You also said that you thought your view was one that would be accepted by every member of the current Supreme Court. In a concurring opinion that was joined by only Justice Thomas, however, Justice Scalia said the following:

ââ‚Å“If I thought that ââ‚Ëœsubstantive due processââ‚â„¢ were a constitutional right rather than an oxymoron, I would think it violated by bait-and-switch taxation.ââ‚? United States v. Carlton, 512 U.S. 26, 39 (1994).

Do you agree that what Justice Scalia said in this decision implies that he and Justice Thomas believe that ââ‚Å“substantive due processââ‚? is not a right guaranteed by the Constitution? Please distinguish your own perspective on substantive due process from the one endorsed by Justices Scalia and Thomas in the above passage.

RESPONSE: As I said at my hearing, I believe the liberty element of the Due Process Clause of the Fourteenth Amendment provides substantive as well as procedural protections. I also believe that every member of the Supreme Court, including Justices Scalia and Thomas, has, at one point or another, agreed with this formulation. For example, Justice Scalia, in an opinion joined by Chief Justice Rehnquist and Justices Oââ‚â„¢Connor and Kennedy, wrote that ââ‚Å“[I]t is an established part of our constitutional jurisprudence that the term ââ‚Ëœlibertyââ‚â„¢ in the Due Process Clause extends beyond freedom from physical restraint.ââ‚? Michael H. v. Gerald D., 491 U.S. 110, 121 (1989)(plurality opinion)â₦.

But virtually everyone agrees that the word ââ‚Å“libertyââ‚? in the Due Process Clause means much more than merely freedom from physical restraint. Quoting this statement by Justice Scalia is completely irrelevant to Scalia's position about ââ‚Å“substantive due process.ââ‚? Judge Roberts concludes his answer this way:

Similarly, Chief Justice Rehnquist, in an opinion joined by Justices Oââ‚â„¢Connor, Scalia, Kennedy, and Thomas, noted that ââ‚Å“[t]he Due Process Clause guarantees more than fair process, and the ââ‚Ëœlibertyââ‚â„¢ it protects includes more than the absence of physical restraint.ââ‚? Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

Let's look at the context of that quote from Washington v. Glucksberg:

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. Collins v. Harker Heights, 503 U.S. 115, 125 (1992) (Due Process Clause "protects individual liberty against 'certain government actions regardless of the fairness of the procedures used to implement them'") (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U.S. 292, 301 -302 (1993); Casey, 505 U.S., at 851. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, â₦ and to abortion, Casey, supra.

Itââ‚â„¢s pretty obvious that the Court was simply summarizing its jurisprudence. I donââ‚â„¢t think that Justices Scalia and Thomas were acknowledging the legitimacy of a constitutional right to abortion, or any other substantive due process right. IMHO, Judge Roberts is wrong about due process (for the reasons explained here), and I very much hope that the next nominee will be more in agreement with Justices Thomas and Scalia on this critical issue.

UPDATE: Note that Roberts also discussed substantive due process during his oral testimony.

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Posted at 4:42pm on Sep. 23, 2005 Senate Vote

By Marshall Manson

There was a question earlier about when the final Senate floor vote on the Roberts confirmation will occur. It's my understanding that the vote will sometime next week -- and probably not later than Thursday. It will NOT happen on Monday or Tuesday. (And, I bet someone is standing around to quietly swear in the new Chief Justice rigtht after the vote so that he can participate in crucial the Friday conference.)

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Posted at 1:51pm on Sep. 23, 2005 Roberts' Written Answers

By Marshall Manson

The indispensable Howard Bashman has collected and posted Judge Roberts' written answers to the Judiciary Committee's questions in three .pdfs over at How Appealing. They are here, here and here. And thanks to commenter "Brian" for pointing this out.

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Posted at 10:10am on Sep. 23, 2005 News Clips, Fri. 9/23

By Marshall Manson

The coverage mostly focuses on yesterday's vote and the shift of attention to the next nominee, but make sure to check out the op/ed by former Attorney General Meese.

Panel Approves Roberts, 13-5, as 3 of 8 Democrats Back Him

Sheryl Gay Stohlberg, New York Times

Senate Panel Endorses Roberts

Charles Babington and Amy Goldstein, Washington Post

Roberts Wins Senate Panel's Backing

Maura Reynolds, Los Angeles Times

Committee sends Roberts nomination to full Senate

Kathy Kiely and Joan Biskupic, USA Today

Judiciary Committee approves Roberts

Charles Hurt, Washington Times

Senate panel backs Roberts

Thomas Ferraro, Reuters

Roberts vote presents dilemma for Senate Democrats

Gail Chaddock, Christian Science Monitor

Panel OKs Roberts, looks ahead to the next nominee

Jan Crawford Greenburg and Jill Zuckman, Chicago Tribune

Chief justice nominee advances

Maeve Reston, Pittsburgh Post-Gazette

Vote for Roberts comes with warning for Bush

Dave Jackson, Dallas Morning News

Roberts cruises toward confirmation; senators debate next nominee

Ron Hutcheson, Knight Ridder Newspapers

Roberts wins bipartisan backing

Liz Halloran, US News & World Report

Dissenting Opinions

Marcia Davis, Washington Post

Roberts' presentation fails senator's abortion test

Charles Hurt, Washington Times

Conrad will vote to confirm Roberts

Mary Clare Jalonick, Associated Press

Commentary: Supreme Choice

Ed Meese, Washington Times

Spotlight Turns to Next Court Nominee

Deb Reichmann, Associated Press

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Posted at 1:12am on Sep. 23, 2005 A Lady's Prerogative

By Carol Platt Liebau

No doubt a staunch feminist like Hillary Clinton would be outraged by the old saying, "It's a lady's right to change her mind."

But that's exactly what it appears she's done. According to this Drudge flash back in July, Hillary intended to vote for Roberts -- no doubt to boost her moderate credentials in preparation for a presidential run. But today, she announced that she would vote against Judge Roberts.

Why the change -- which puts Hillary to the left of Russ Feingold? Could be two things. First, she lacks the flexibility to tack right on Roberts because, unlike Feingold, she hasn't opposed the war in Iraq. Second, she may hear the hoofbeats of loony left favorite Al Gore growing ever louder

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Posted at 10:44pm on Sep. 22, 2005 Equal Justice Under Law

By AndrewHyman

In remarks today, Senator Leahy said this:

As Chief Justice, John Roberts will be responsible for the way in which the judicial branch administers justice for all Americans. He must know in his core that the words engraved in the Vermont marble on the Supreme Court building are not just ââ‚Å“Under Lawââ‚? but ââ‚Å“Equal Justice under Law.ââ‚? It is not just the rule of law that he must serve, but the cause of justice under our great charter.

When the Constitution and statutes allow a court to do justice, of course the court should do justice. But when they don't, as Thomas Jefferson explained in 1785, a court of equity ââ‚Å“cannot interpose in any case against the express letter and intention of the legislature. If the legislature means to enact an injustice, however palpable, the court of Chancery is not the body with whom a correcting power is lodged.ââ‚? The Supreme Court does not have a blank check to withdraw power from the political branches, and deprive Congress and the legislatures of their most important responsibility, which is to do justice as they see it.

Courts cannot legitimately "expand" rights at the expense of elected officials, or go beyond the process of law. Courts can strike down unconstitutional laws, but they must abide by other laws even if those laws are unreasonable, unjust, or undue. In other words, when equal justice under law is impossible, judges have to obey the law, or else become superlegislators.

And that's my speech for today. By the way, C-Span will be showing a speech by Judge Alice Batchelder at 7 PM on Saturday, East Coast Time. You can also hear her speech any time, here.

UPDATE: Judge Consuelo Callahan also made some remarks during a radio tribute to another California Judge. You can listen here.

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Posted at 6:36pm on Sep. 22, 2005 "Feddie for SCOTUS!"

By feddie

O.k., y'all, this is the coolest blog post ever! :)

Thanks Zach!

Update: My heavens, there's even a t-shirt now. Only in the blogosphere. :)

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Posted at 5:25pm on Sep. 22, 2005 Justice Ginsburg's Advice and Consent?

By Marshall Manson

The Associated Press reports that Justice Ginsburg made an interesting declaration to a New York City Bar Association audience yesterday:

Ruth Bader Ginsburg told an audience Wednesday that she doesn't like the idea of being the only female justice on the Supreme Court. But in choosing to fill one of the two open positions on the court, "any woman will not do," she said.

There are "some women who might be appointed who would not advance human rights or women's rights," Ginsburg told those gathered at the New York City Bar Association.

The retirement of Ginsburg's colleague Sandra Day O'Connor has fueled speculation about whether President Bush will nominate a woman to her position.

[snip]

Ginsburg stressed that the president should appoint a "fine jurist," adding that there are many women who fit that description.

"I have a list of highly qualified women, but the president has not consulted me," she added during a brief interview Wednesday night.

I have enormous respect for the nine wise souls that comprise the Supreme Court, but these comments are beyond the pale. Justice Ginsburg has seen fit to ignore customary practice and wade into a political thicket. Most federal judges -- and certainly Supreme Court justices -- go out of their way to avoid making political pronouncements. They understand that opining on political matters only cheapens their stature and calls their objectivity into question. Obviously, Justice Ginsburg's ideology is well known. She worked for the ACLU before joining the bench. But her own judicial standards ought to overcome any desire that she might have to spout off publicly about a political question.

Obviously Justice Ginsburg has no role in the judicial selection process. But by volunteering that she has a list of "qualified women" who will " advance human rights [and] women's rights," she raises disturbing questions about her judgment.

Now, let me be clear. I do not support calls for impeaching judges for stuff like this. But I would hope that Justice Ginsburg will hear the concerns of prudent observers and reject such behavior in the future.

Hat tip to Orin Kerr at Volokh.

UPDATE: Ed Whelan has weighed in at Bench Memos.

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Posted at 4:46pm on Sep. 22, 2005 Agreeing with Sen. Biden

By Marshall Manson

Earlier, I mentioned that ice-skating in hell was on my to-do list for today. As the day has progressed, I am forced to wonder if I've now drifted off into some strange world where the sky is purple. Is it possible that I find myself in agreement with something Joe Biden said at today's mark-up in the midst of his rambling remarks?

"It is true, and I got a little bit of heat for saying, these hearings have become a little bit of a kabuki dance. By that I mean a stylized dance that goes on. We all sit down, and we reread everything that the person has ever said. They sit down at the White House or wherever, and they look at films of all of the hearings that went before. Everybody figures out this kind of 'I gotcha' game. It's kind of a game of 'I gotcha.' When, in fact, it shouldn't be that at all. I might note I'm moving to the view that I'm not sure these hearings are the proper way to determine how to vote for a judge. Maybe we should go back to the pre-1925 rule and just look at what they wrote and said and make our [decision] based on that." [Emphasis added.]

I have argued repeatedly in this and other forums that Senatorial questionning of judicial nominees only injects unnecessary politics into the judicial selection process, especially given the current environment in the Senate. While recognizing that it was completely unrealistic, I have suggested that the Senate ought to just do away with the hearings entirely. How shocked I am to learn that I have an ally in Senator Biden. I think I'll launch a campaign. Or perhaps I'll just ponder this purple sky a little longer.

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Posted at 4:06pm on Sep. 22, 2005 A Shortsighted Precedent

By Carol Platt Liebau

With support from three Judiciary Committee Democrats, John Roberts' nomination is out of committee and headed for the Senate floor.

Not a single Democrat has opposed Roberts on the grounds that he lacks the qualifications, the ethics or the temperament to be Chief Justice of the Supreme Court. Instead, as the story linked above indicates, they have based their opposition on Judge Roberts' appropriate reluctance to prejudge cases, his refusal to answer questions about his personal political predilections, and his (presumed) failure to share the left wing judicial philosophy of lightweights like Joe Biden.

Do the Democrats understand what kind of precedent they're setting here? Perhaps they should be paying more attention to the analysis of the brilliant Michael Barone, whose views are discussed today in a column by Jim Pinkerton:

Looking ahead to 2006, Barone sees good news for Republicans. He notes that Bush carried 31 states last year, compared to Kerry's 19. That means that if the trend toward polarization continues - "red" states getting redder, "blue" states getting bluer - the GOP has little reason to fear losing the Senate.

So presumably, the future looks "rosy" red for Roberts and others like him . . . but not quite so inviting should the Republicans decide to play the Democrats' game, in the (unhappy) event that a Democratic president gets to do the nominating.

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Posted at 1:57pm on Sep. 22, 2005 Schumer Link to MD Dirty Tricks

By Carol Platt Liebau

It looks like Democratic Senatorial Campaign Committee staffers -- working for DSCC chairman and preening Judiciary Committee member Sen. Chuck Schumer (D-NY) -- are the ones responsible for obtaining the credit report for potential Maryland senatorial contender Lt. Gov. Michael Steele (R). They've "resigned," of course. As Deborah Orin reports, "Schumer is a leading critic of identity theft and breaches of sensitive personal data like credit reports."

Ironic that Schumer didn't find the time to report what's quite possibly criminal behavior, given that he's so adamantly opposed to alleged reticence on other subjects.

More here .

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Posted at 1:56pm on Sep. 22, 2005 Committee Recommends Roberts Confirmation 13-5

By Marshall Manson

All Republicans plus Leahy, Kohl and Feingold vote yes.

Democrats voting no were Kennedy, Biden, Feinstein, Schumer, and Durbin.

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Posted at 1:45pm on Sep. 22, 2005 Dems' True Colors

By Carol Platt Liebau

Dianne Feinstein has announced that she will oppose John Roberts, even though other liberals like Patrick Leahy intend to vote in support. This has nothing to do with "answering the questions" -- as Feinstein would have us believe. This has to do with her re-election bid next year, and her fear of losing funding and face with the loony left out of her home base of San Francisco.

In the meantime, Patrick Leahy's support for John Roberts, while welcome, is a ploy to allow him to dramatize his opposition to the next nominee, if it's anyone to the right of Alberto Gonzales.

And speaking of Alberto Gonzales, the story linked above noted that his name came up at a White House meeting with senators as a "contender" for the open Supreme Court seat. Interesting to think that president-in-exile Arlen Specter recently opposed elevating AG Gonzales to the Court because of the tough nomination hearings he confronted for Attorney General. But it's not hard to imagine the Democrats, being relieved at such a "moderate" choice, giving Gonzales an easier time for a lifetime SC seat than for AG.

Which returns all of us to the ineluctible conclusion that, for the Dems, it's about nothing but abortion politics.

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Posted at 12:05pm on Sep. 22, 2005 Daschle Backs Roberts

By Marshall Manson

After publishing this post, I'm headed out to go ice-skating in hell. Anyone want to join me?

Here's an article from this morning's Argus Leader. Here's the money quote: "President Bush has produced a nominee that probably qualifies, and I would support him."

The obvious question is this: If Daschle can now support a solid conservative for Supreme Court based on his qualificiations, how can he possibly justify his past opposition to judicial nominees based on ideology.

The answer, of course, is that he can't. Indeed, no one can. And the support from Daschle, Leahy, and other Dems reveals once and for all the folly of their four years of obstruction based on ideology.

This also should send a powerful message to the President that he should feel free to nominate a strong conservative to fill the current vacancy.

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Posted at 10:05am on Sep. 22, 2005 News Clips, Thurs. 9/22

By Marshall Manson

There are several important stories today. Make sure to check out the clips today...

Judiciary Panel to Vote on Roberts Today

Jesse Holland, Associated Press

Leaders ask Specter to release memos

Alex Bolton, The Hill

Editorial: Despite lingering questions, Roberts merits confirmation

USA Today

Editorial Response: Roberts a dangerous bet

Ralph Neas, USA Today

Editorial: Confirm Roberts

Seattle Times

Roberts picks up Democratic support in Senate

Kathy Kiely, USA Today

Committee's Top Democrat Will Vote Yes on Roberts

Sheryl Gay Stohlberg, New York Times

Chief Justice Vote Splits Top Democrats

Maura Reynolds, Los Angeles Times

Leahy backs Roberts nomination

Charles Hurt and Joseph Curl, Washington Times

Key Senator Backs Roberts -- Focus Turns to Next Pick

Carolyn Lockhead, San Francisco Chronicle

Among Democratic Activists, Little Indecision on Roberts

Robin Toner, New York Times

Commentary: Democrats will help Bush get out of the cellar

Byron York, The Hill

Democrats revive filibuster threat

Editorial: A legacy moment for Bush

Washington Times

Focus for Supreme Court Pick Is Said to Be on Diversity

Elisabeth Bumiller, New York Times

Next Nominee to Court Could Face More Heat

Jim VandeHei and Charles Babington, Washington Post

Bush hears warnings about next court nominee

Steve Holland and Thomas Ferraro, Reuters

Ginsburg: 'Any Woman Will Not Do' for Job

Nahal Toosi, Associated Press

Burning Issues Await High Court in New Term

Marcia Coyle, National Law Journal

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Posted at 10:36pm on Sep. 21, 2005 A Return to the Recent Unpleasantness

By AndrewHyman

Senator Joe Lieberman is threatening to launch an endless filibuster of a Supreme Court nominee. He says, "if the next nominee is not a mainstream conservative, then a filibuster is definitely possible." In that case, of course, a rules change would definitely be possible, too.

What's at stake is the traditional way that judges have been appointed over the centuries. Here's what James Monroe said at the Virginia Ratifying Convention, way back in 1788:

He is to nominate, and, by and with the advice and consent of the Senate, to appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States. THE CONCURRENCE OF A BARE MAJORITY OF THOSE WHO MAY BE PRESENT WILL ENABLE HIM TO DO THESE IMPORTANT ACTS.

A bare majority of the full Senate, concurring with the President and the Vice President, is an excellent indicator of the "mainstream."

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Posted at 2:09pm on Sep. 21, 2005 We love you too, A3G!

By feddie

Article III Groupie, mistress of the wildly popular blog "Underneath Their Robes," is a huge fan of Confirm Them. And given her high praise of CT, I thought it only appropriate to return the favor by promoting her blog here.

So what is UTR all about? Well, A3G describes her blog as "news, gossip, and colorful commentary about the federal judiciary," but it is so much more. It is the "inside baseball" blog for the federal judiciary. So if you're an avowed law nerd, make sure to add UTR to your daily reading list.

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Posted at 1:41pm on Sep. 21, 2005 Justice Karen J. Williams?

By feddie

An extremely reliable source informs me that President Bush is seriously considering Judge Karen Williams of the Fourth Circuit to replace Justice O'Connor on the SCOTUS.

From what I understand, Judge Williams is a solid legal conservative, so I obviously will be thrilled if she indeed is the president's choice.

(cross-posted at Southern Appeal)

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Posted at 12:37pm on Sep. 21, 2005 Divisiveness Distraction

By Marshall Manson

John has a good post on divisiveness over at his blog focused on rebutting a Boston Globe editorial from Monday. More below the fold.

The Globe feels "conservatives need to cool their (intemperate) rhetoric."

And what about liberals? For example:

Senator Tom Harkin (D-Iowa) who said of Judge Priscilla Owen: "This is not a person to put on the bench for a lifetime appointment. This person is wacko! She's wacko!"

Harkin made his remarks shortly after the American Bar Association, by unanimous vote of its committee on federal judicial nominations, had given Owen its highest recommendation:Highly Qualified.

And there's Senator Chuck Schumer (D- NY) who said: "For years, the federal courts served as the shield protecting basic civil rights in this country. This administration wants the courts to become the sword that destroys those rights. And don't think this stops with Judge Pickering. He's just the tip of the iceberg."

John makes a great point. Give the piece a read...

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Posted at 12:02pm on Sep. 21, 2005 Nice Try, Arlen

By Carol Platt Liebau

Note to Judiciary Committee Chairman & Senator Arlen Specter: If you want to act like the President, you have to get elected (and squeakers in your home state of Pennsylvania -- that you pull out with the President's help -- don't count).

Not one to bother with details, Specter took it upon himself to approach Justice Sandra Day O'Connor and ask her to stay for the entire Court term. Breathtaking arrogance, no?

Not surprisingly, Specter reported that President Bush's reaction to his proposal was "noncomittal." No doubt that's because President Bush has better manners -- and a greater sense of decorum -- than Arlen Specter. Anyone else would have laughed out loud and given Specter the verbal spanking he deserved.

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Posted at 11:42am on Sep. 21, 2005 Judge Consuelo M. Callahan?

By Marshall Manson

Zev, over at Judge and Jewry, wants to talk more about Judge Consuelo Callahan, one of President Bush's appointees to the Ninth Circuit. He's got some interesting info. Also, Andrew posted some profile information about Judge Callahan in the links section on the right side of our page.

I confess that I don't really know much (if anything) about Judge Callahan aside from what Zev has articulated. She just hasn't been on my radar screen. But her profile sounds intriguing on first glance.

I wonder what our commenters think. Would some have concerns that she's too much of a blank slate? Do our readers know anything about Judge Callahan that might enlighten us?

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Posted at 10:30am on Sep. 21, 2005 News Clips, Wed. 9/21

By Marshall Manson

I caught the first AP copy that moved on this morning's meeting between Senators and the President on the next vacancy. Other than that, lots of good coverage today:

Senators Pitch Ideas to Bush on Nominee

Deb Riechmann, Associated Press

Editorial: Words that will Haunt

Washington Post

Editorial: Confirm Roberts
Newsday

Editorial: Confirm Roberts as chief justice

Cincinnati Enquirer

Baucus says he is inclined to vote for Roberts

Associated Press via Billings Gazette

Top Democrat Says He'll Vote No on Roberts

Sheryl Gay Stohlberg and David Kirkpatrick, New York Times

Reid Will Oppose Roberts for Chief Justice

Charles Babington, Washington Post

Leading Democrat to Vote No on Roberts

Maura Reynolds, Los Angeles Times

Sen. Reid Says He'll Vote Against Roberts

Dave Espo, Associated Press

U.S. Senate Democratic Leader Reid Opposes Roberts

Bloomberg News

Roberts will 'get plenty of votes'

Charles Hurt, Washington Times

Reid 'no' vote on Roberts could be Dem green light

Elana Schor, The Hill

Commentary: Roberts battle highlights vast gulf between parties

Robert Bork and David Rivkin Jr., USA Today

After Chafee backs Roberts, foes await NARAL's response

Jackie Kucinich, The Hill

Commentary: The Sound and the Fury

Ed Morrisey, The Weekly Standard

Next high court pick anyone's guess

Joseph Curl, Washington Times

Commentary: Winning Through Intimidation

Manuel Miranda, Opinion Journal

Commentary: Who's Next?

Emily Bazelon, Slate

(A post at Confirm Them exposes the poor quality of Slate's reporting.)

Commentary: From Hegel to Wilson to Breyer

Paul Mirengoff and Scott Johnson, The Weekly Standard

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Posted at 1:36am on Sep. 21, 2005 Don't Fall for Left Wing Spin

By Carol Platt Liebau

Here's an important reminder that every Republican and every conservative must be careful not to fall for the junk coming from the left wing spin machine -- thereby becoming complicit in the smearing of fine judges like Janice Rogers Brown.

Apparently, Harry Reid intends to oppose Judge Roberts. That should be all the reminder that anyone needs . . . any Bush nominee will face opposition. So if there's to be a fight, let's make it count.

After all the repugnant charges of racism that have emanated from left wingers like Jesse Jackson, it would be interesting to see the public reaction to Charles Schumer's attempts to manhandle a fabulous nominee like JR Brown. Would it then be time for Democrats to worry that perhaps the African-American vote is more politically open-minded than they have previously believed?

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Posted at 8:33pm on Sep. 20, 2005 Some Tuesday Evening Stuff

By AndrewHyman

Following Judge Roberts's hearing, Senators submitted written questions, and answers to those questions are expected by close of business tomorrow (Wednesday). Of course, that hasn't stopped some Senators (e.g. Senator Reid) from jumping the gun by announcing opposition to Roberts. You'd think they'd wait until all the facts are in, if only for appearances' sake.

In other news, the Committee for Justice has new leadership. And, I've posted a few links about Judge Consuelo Callahan over at the right side of the confirmthem page (under "SCOTUS Candidates"), which suggest that she would not be voting with Justices Scalia and Thomas. Please email us any other links you think we ought to add on our home page.

Incidentally, for the real scoop about the much-discussed doctrine of stare decisis, see here.

UPDATE: BTW, Roberts would be the 18th Chief Justice, not the 17th, if we're going to be technically precise. And speaking of being precise, Patterico threatens to filibuster any nominees whose hearts are bigger than their heads.

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Posted at 8:29pm on Sep. 20, 2005 No Anxiety Here

By Carol Platt Liebau

Here is what Emily Bazelon of Slate considers the latest Supreme Court "scuttlebut." Judging from the quality of what she's got, I wouldn't take any of this to the bank.

The piece is discredited right at the beginning. According to Bazelon, "Republican women are anxious." Why? Well, "[w]hether or not the gender of the next nominee should matter, it does to Republican women lawyers. When Sandra Day O'Connor and Laura Bush expressed enthusiasm for a female justice, these women took hope." Huh. I know I'm a lawyer, I'm certainly a Republican, and -- hold on -- yep, definitely a woman.

Funny, the gender of the next nominee doesn't matter to me in the least . . . I'd gladly take either of the judges that Bazelon characterizes as top-tier intellects -- Judges Michael Luttig and Michael McConnell (in that masterful sleight of hand only feminists seem able to achieve, Bazelon denigrates the intellects of female Judges Brown, Jones and Clement).

In fact, if I'm anxious about anything, it's that someone at The White House will read silly articles like this one and take them seriously. Who, after all, really believes that Emily Bazelon has any insights into the inner workings of the minds of female Republican lawyers? Pick the most qualified constitutionalists and forget the rest.

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Posted at 6:38pm on Sep. 20, 2005 The Bogus Balance Argument

By Marshall Manson

With attention beginning to turn to the President's choice to fill the Supreme Court vacancy created by Justice O'Connor's retirement, the Left is once again ramping up its cry for "maintaining balance" on the High Court. This usually involves urging the President to name a "consensus" nominee. Of course, what that really means is that the Left wants the President to nominate a liberal.

A few weeks ago, Professor Keith Whittington did a number on the balance argument in National Review. His piece worth another look now that "balance" has sprung up like a phoenix.

And today, Reid Cox added his own contribution over at CFIF's website. Reid takes a historical look, reminding the Democrats that presidents from their party -- most notably FDR -- have emphatically rejected balance as they sought judges who would embrace their agendas.

[By calling for balance], the Democrats are turning a blind eye not only to the text and structure of our Constitution, but also to how their own Partyââ‚â„¢s most famous leader selected justices for the Supreme Court. After all, how can Senator Schumer claim that no President has ever ââ‚Å“sought to imbalance the courtsââ‚? like President Bush without ignoring President Rooseveltââ‚â„¢s struggle to tip the balance of the judiciary in the 1930s and ââ‚â„¢40s?

[snip]

The next time you hear a Democrat saying that President Bush must nominate a justice who will maintain the ââ‚Å“balanceââ‚? on the Supreme Court, remember whoââ‚â„¢s doing the talking ââ‚” not a historian, but a politician who believes the status quo is the best the Democrats can do right now.

You can peruse Reid's full historical analysis and thorough debunking of the balance argument here.

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Posted at 1:41pm on Sep. 20, 2005 Roberts on Roe

By Marshall Manson

There has been much discussion in this forum and elsewhere about Judge Roberts' answers at his hearing last week regarding Griswold, Roe and the issue of precedent. Some commenters have challenged me and others to defend Roberts' statements on the issue. While I have refused (f0r reasons that I have explained here and here), that doesn't mean others aren't on the case.

Over at National Review, Ed Whelan has an outstanding commentary addressing this subject in detail. It's a must-read.

Here's the central point:

It is a testament to Roberts's skills as an advocate that his remarks at his confirmation hearing on abortion and stare decisis have been understood by Specter and many other supporters of Roe as suggesting that he would not vote to overrule Roe. What seems not to have been noticed is that Roberts in fact deftly repudiated Specter's notion that Roe is some sort of "super-duper precedent" entitled to "super stare decisis." In so doing, he marked the path for the eventual overruling of Roe.

Specter's "super stare decisis" notion implies that there is an especially high wall that would need to be surmounted to overrule Roe. But Roberts reconceived this single high wall as two successive hurdles that would have to be cleared: first, the precedent in Planned Parenthood v. Casey on whether or not to revisit Roe, and second, the precedent in Roe, as modified by Casey, on what abortion regulations are permissible and on the standard of review to be applied to them. Roberts's phrasing cleverly obscured the point that it is far easier to go over two hurdles in succession than over a wall that is the height of the two hurdles combined.

Roberts's statement that Casey is "settled as a precedent of the Court, entitled to respect under principles of stare decisis" is definitional boilerplate in Roberts's usage. As Roberts employs the terms, anything that qualifies as "precedent" is "settled," and all precedents of the Court are "entitled to respect." In Roberts's words, Casey is "entitled to respect like any other precedent of the Court."

Roberts stated in his hearing that "it's vitally important that nominees, to use Justice Ginsburg's words, [give] no hints, no forecasts, no previews" of issues that are likely to come before them. Unlike some who think he was trying to telegraph his position on Roe, I think that he was steadfastly adhering to this standard.

That said, those like me who believe that the issue of regulating abortion must be restored to the democratic processes should take comfort in Roberts's analytical framework.

Read the whole thing.

Let me also just add that Whelan has been on top of all of the issues and discussions surrounding the Roberts' confirmation better than anyone else. His insight has been crucial for non-lawyers like me trying to understand the details.

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Posted at 1:17pm on Sep. 20, 2005 Needed: One Tough Judge

By Carol Platt Liebau

The New York Times reports that The White House is revising its criteria for Justice O'Connor's replacement: The nominee needs to be tough. Quite rightly, the Administration apparently suspects that the Democrats' frustration at being unable to lay a finger on Judge Roberts may spill over and be vented on the next nominee.

Fair enough -- in my view, any Supreme Court nominee should have the mental toughness that will serve him/her well not only in confirmation hearings, but in resisting the blandishments of the (liberal) Beltway establishment if he/she is ultimately confirmed.

The story likewise notes that some Democrats want to muster numerous votes against John Roberts to "send a message" to The White House, while others believe most Dems should vote for him in order to promote the illusion that they are reasonable.

But the real truth comes at the story's end, when it's noted that liberal legal groups and unions have come out against Judge Roberts' nomination. The fact is that these groups will oppose any Bush nominee. So the nominee might as well be someone who's worth what will surely be a bitter and unpleasant fight.

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Posted at 9:49am on Sep. 20, 2005 News Clips, Tues. 9/20

By Marshall Manson

L.A. Times endorsed Roberts. (That sound you hear is hell freezing over.) DeWine formally announces his support for Roberts. A few other clips...

Editorial: Confirm Roberts

Los Angeles Times

Specter will back Roberts for court

Charles Hurt, Washington Times

Specter set to send Roberts to full Senate

Stephen Henderson, Knight Ridder Newspapers

Specter backs U.S. Chief justice nominee Roberts

Reuters

For '08 Dems, a tough choice lies just ahead

Jonathan Allen, The Hill

DeWine prepared to support Roberts

Malia Rulon, Cincinnati

Enquirer

Right rift over Roberts

Alex Bolton, The Hill

White House Said to Shift List for 2nd Court Seat

Sheryl Gay Stohlberg and David Kirkpatrick, New York Times

Who Will Bush Tap As Next Court Nominee?

Deb Reichmann, Associated Press

Editorial: Diversity changes the way justices see the world
USA Today

Editorial Response: Choice should be blind ...

Thomas Heiden, USA Today

O'Connor Prepares for Final Days on Court

Gina Holland, Associated Press

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Posted at 10:31pm on Sep. 19, 2005 One Vote for Luttig

By Erick

I spoke with a member of our version of the House of Lords today. He has a decided preference for O'Connor's spot -- Judge Luttig. His reasoning, though basic, makes sense.

Roberts, he said, sets the bar very, very high for any other nominee. "The field is very small for top notch conservative judges," he says. "In my opinion, at the very top there are only two who are of Roberts' caliber: Michael Luttig and Michael McConnell."

"We know the Democrats are going to fight like hell. We need a nominee who can withstand the assault, handle himself as well under questioning as Roberts, and appear as credible to the public as Roberts did." The Senator thinks that Luttig and McConnell fit those criteria better than any other potential nominee.

Of those two, the Senator is more comfortable with Luttig than McConnell. Luttig is "more judge than academic" to the Senator and the Senator thinks Luttig would be better equipped to handle the questions and the fight.

"The President will be consulting with the Senate. I intend to suggest that Michael Luttig should be considered."

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Posted at 7:02pm on Sep. 19, 2005 This and That

By AndrewHyman

FYI, Daveed Gartenstein-Ross has an excellent piece over at the Weekly Standard describing how the doctrine of stare decisis is being used to slide the Court leftward. Also, over at National Review, Michigan Supreme Court Justice Stephen Markman has a very interesting list of danger signals that can be detected in judicial opinions. And, I'm told that the link for Judge Batchelder's recent speech is now working.

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Posted at 5:28pm on Sep. 19, 2005 What Will The Vote Be

By Erick

From David Broder comes this:

The question of whether Judge John Roberts is qualified to be chief justice of the United States has been rendered moot by his performance in the Senate Judiciary Committee hearings. He is so obviously -- ridiculously -- well-equipped to lead government's third branch that it is hard to imagine how any Democrats can justify a vote against his confirmation.

Notwithstanding the WaPo editorial and the "Dean" of the Washington Press Corp going to bat for Roberts (which we know will make some conservatives nervous), I hear that the vote will not be a landslide for Roberts. In fact, I have gotten word that some Democrats are going to vote against Roberts, knowing he will pass and being inclined to support him, because they are fearful of "the base," which wants Roberts to be opposed. My sources echo Robert Novak's and are touting the number 65.

Ironically, I've been told late today of a new movement being kicked around by several Democrat Senators, including some members of the Filibuster Gang, that if the majority of Democrat Senators vote for Roberts, they will have a greater argument to oppose Bush's O'Connor replacement. The feeling is that polls already show the public expects the Dems to oppose anyone the President picks. By not vociferiously opposing Roberts, the Dems will be in a much better position with the public when they actively oppose the next nominee, which I'm told they have every intention of doing.

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Posted at 2:31pm on Sep. 19, 2005 Vulgar Self Promotion Moment

By Carol Platt Liebau

Here is my weekly column at The One Republic, outlining the political and prudential (as opposed to the principled) reasons that President Bush should nominate a strict constructionist to succeed Justice Sandra Day O'Connor.

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Posted at 12:16pm on Sep. 19, 2005 Specter today at 2:15

By carney

From Specter's Judiciary office:

Senator Arlen Specter, Chairman of the Senate Judiciary Committee, is expected to speak on the floor of the U.S. Senate TODAY at approximately 2:15 p.m. regarding the nomination of John Roberts to be Chief Justice of the United States.

One Senate Judiciary staffer tells me they expect he'll reveal his vote on Roberts. I also expect he'll send another not-too-subtle warning to Bush about the "balance of the court" and respect for "long-held precedents," with regard to the next nominee.

For a hint as to what Specter will say, check this AP article linked in the previous post:

"I hope that we'll have somebody who is modest like Judge Roberts says he is, someone who will promote stability so there are no sharp turns," said Sen. Arlen Specter, R-Pa.

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Posted at 10:51am on Sep. 19, 2005 News Clips, Monday 9/19

By Marshall Manson

Columnists starting to get their licks in...

Editorial: Confirm John Roberts

Washington Post

Editorial: Confirm Roberts

Orlando Sentinel

Commentary: Roberts's Sterling Showing

David Broder, Washington Post

Commentary: Chuck Schumer's Defeat

Robert Novak, Chicago Sun-Times

Must Future Court Nominees Match Qualifications of Roberts?

Sheryl Gay Stohlberg and David Krikpatrick, New York Times

Collins to back Supreme Court nominee

Francis X. Quinn, Associated Press

As Chief, Roberts Would Be Tested

Charles Lane, Washington Post

The Supreme Court's Biggest Question

Todd Purdum, New York Times

No Clarence Thomas: Roberts Hearings Fail to Stir D.C. Passions

Bloomberg News

Roberts vote holds risks for Democrats

Nina J. Easton and Rick Klein, Boston Globe

Guessing Games in Wake of Roberts Hearings

Tony Mauro, Legal Times

Commentary: ...in review

Mark Steyn, Washington Times

Commentary: Senatorial Follies

Donald Lambro, Washington Times

Roberts Drops Hints in 'Precedent' Remarks

Adam Liptak, New York Times

Who's Next?

Margaret Talev, Sacremento Bee

Specter Seeks Another Roberts-Like Nominee

Hope Yen, Associated Press

A Supreme Bank Shot

Debra Rosenberg, Newsweek

Commentary: Pro-choice, out of touch

Joan Vennochi, Boston Globe

Commentary: Catholics and the Court

Manuel Miranda, Opinion Journal

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Posted at 3:15am on Sep. 19, 2005 Caleb Nelson on <em>Stare Decisis</em>

By AndrewHyman

For anyone who wants to read a really good, thorough, in-depth article about stare decisis, I'd recommend this article that UVA Law Professor Caleb Nelson wrote in 2001. Here are a few excerpts.

American courts of last resort recognize a rebuttable presumption against overruling their own past decisions. In earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's current members, was demonstrably erroneous. But when the Supreme Court makes similar noises today, it is roundly criticized. At least within the academy, conventional wisdom now maintains that a purported demonstration of error is not enough to justify overruling a past decision.

....

[T]he conventional wisdom is wrong to suggest that any coherent doctrine of stare decisis must include a presumption against overruling precedents that the current court deems demonstrably erroneous. The doctrine of stare decisis would indeed be no doctrine at all if courts were free to overrule a past decision simply because they would have reached a different decision as an original matter. But when a court says that a past decision is demonstrably erroneous, it is saying not only that it would have reached a different decision as an original matter, but also that the prior court went beyond the range of indeterminacy created by the relevant source of law.

I agree entirely with Professor Nelson, and so did the whole American legal establishment during much of this country's history:

Americans from the Founding on believed that court decisions could help "liquidate" or settle the meaning of ambiguous provisions of written law. Later courts generally were supposed to abide by such "liquidations" .... To the extent that the underlying legal provision was determinate, however, courts were not thought to be similarly bound by precedents that misinterpreted it.

....

Of the Court's current members, Justices Scalia and Thomas seem to have the most faith in the determinacy of the legal texts that come before the Court. It should come as no surprise that they also seem the most willing to overrule the Court's past decisions....Prominent journalists and other commentators suggest that there is some contradiction between these Justices' mantra of "judicial restraint" and any systematic re-examination of precedents. But if one believes in the determinacy of the underlying legal texts, one need not define "judicial restraint" solely in terms of fidelity to precedent; one can also speak of fidelity to the texts themselves.

So, let's hope that the next nominee believes that demonstrably erroneous interpretations of text are not entitled to much protection under the doctrine of stare decisis. Demonstrably erroneous interpretations of constitutional law are especially dangerous, because they can't be corrected by legislation.

UPDATE: Here's a February 2006 article about Nelson.

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Posted at 2:58am on Sep. 19, 2005 "Chuck Schumer's Defeat"

By Carol Platt Liebau

Senator Charles Schumer (D-NY) will hate this piece by Robert Novak from start to finish. Novak simply tells the truth -- Schumer failed in his efforts to force John Roberts to detail his positions on a host of political issues, an effort that was as inappropriate as it was futile.

Guess all Schumer's role-playing with the Harvard Law professor didn't quite pan out ("One Democrat, Senator Charles E. Schumer of New York, was so concerned with his performance that he held a mock hearing in his office on Sunday, with a Harvard law professor playing Judge Roberts.")

Posted in Analysis and Predictions —

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Posted at 11:03pm on Sep. 18, 2005 Ending the Weekend on a Light Note

By Carol Platt Liebau

The incredibly gifted Mark Steyn ridicules the Democrats of the Senate Judiciary Committee here. It's dead on -- and priceless.

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Posted at 2:46pm on Sep. 18, 2005 A Poll

By AndrewHyman

One of our commenters wanted a thread to take a poll.

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Posted at 12:47am on Sep. 18, 2005 Constitution Day Speech By Judge Batchelder

By AndrewHyman

Judge Alice M. Batchelder of the Sixth Circuit gave a speech yesterday, titled "The Judiciary: having 'neither Force nor Will, but merely judgement'?" Her speech was available live via internet, and now you can access an archived recording, here. More info about Judge Batchelder is linked at the right side of the confirmthem page, under the category "SCOTUS Candidates."

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Posted at 8:44pm on Sep. 17, 2005 The Left Will Have A Bad Sunday

By Erick

In tomorrow's Washington Post.

JOHN G. ROBERTS JR. should be confirmed as chief justice of the United States. He is overwhelmingly well-qualified, possesses an unusually keen legal mind and practices a collegiality of the type an effective chief justice must have. He shows every sign of commitment to restraint and impartiality. Nominees of comparable quality have, after rigorous hearings, been confirmed nearly unanimously. We hope Judge Roberts will similarly be approved by a large bipartisan vote.

A lot of lefties will be burning their copies of the Post tomorrow and then marching off to torch John Philip Sousa's house.

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Posted at 8:29pm on Sep. 17, 2005 Quote for the Day

By AndrewHyman

As Marshall mentioned, today is Constitution Day. So, here's some food for thought from John Jay, who later became the first Chief Justice:

It is the undoubted Right and unalienable Privilege of a Free man not to be divested, or interrupted in the innocent use, of Life, Liberty or Property, but by Laws to which he has assented, either personally or by his Representatives. This is the Corner Stone of every free Constitution, and to defend it from the Iron Hand of the Tyrant of Britain, all America is now in arms....

He wrote that in 1778, during the American Revolution. Our Constitution's "Corner Stone" is called the Due Process Clause. Unfortunately, judges have now taken it upon themselves to view that great Clause as a license to deprive some people of liberty in order to expand the liberty of others, notwithstanding statutes to the contrary.

The Supreme Court acknowledges how rare it is ââ‚Å“that one disposition can expand a ââ‚Ëœlibertyââ‚™â₦ without contracting an equivalent ââ‚Ëœlibertyââ‚â„¢ on the other side.ââ‚? Yet, that acknowledgment hasn't stopped the Court from going right ahead and doing it (e.g. see here). John Jay must be spinning.

Likewise, the Court acknowledges that its use of the Due Process Clause to strike down substantive statutes violates the preconstitutional understanding:

[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.

But again, this acknowledgment hasnââ‚â„¢t stopped the Court from going right ahead with its doctrine of substantive due process.

Alexander Hamilton recognized in 1787 that, ââ‚Å“the words ââ‚Ëœdue processââ‚â„¢ have a precise technical importâ₦.ââ‚? Yet, most members of today's Supreme Court apparently prefer a much broader meaning. So much for the cornerstone of our Constitution.

GLOSSARY:

Due Process = process owed according to the law of the land.

Process = all of the proceedings in a cause of action.

Law of the Land = common law, statute law, customary law, civil law, federal law, state law, constitutional law, treaty law, and all other laws in force throughout the United States.

Supreme Law of the Land = the Constitution, and the laws of the United States made in pursuance thereof, and all treaties made under the authority of the United States.

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Posted at 12:24pm on Sep. 17, 2005 Tales from 1600

By Erick

I've had a rather informative discussion with "the source." Here's the stuff I can relate.

As Robert Novak is reporting this morning, many in the Senate think that whoever Bush nominates to the Supreme Court to fill O'Connor's spot will be filibustered by the Democrats, if they can hold it together. The President would like to avoid that if possible -- hence Larry Thompson's name has been floated. The thinking is that Thompson could pass through the Senate without a filibuster and that he would be to the right of Alberto Gonzales. The President is still not considering Gonzales.

Unfortunately for the President, Larry Thompson gives some vocal conservatives inside and outside the Senate ulcers. Thompson's views on abortion are not known and his judicial philosophy, while thought to be originalist, is not fully defined. Some conservatives are sending messages to the White House that Thompson is not the guy the President should pick.

Coming into play are the President's weak poll numbers. He has several members of the Senate, including the Chairman of the Judiciary Committee, who will not necessarily give him full cooperation. The President is going to have to find someone who is considered "top notch" that can keep Senators in line and also keep conservatives happy. "The President needs his base right now. We all know that. An enigma will not satisfy the base," says the source.

That leaves us back where we were. While Owen seemingly serves the White House purpose, some senators are privately urging the President to go in a different direction. One senate aide tells me, "Owen has said nice stuff on parental consent. That's about the extent of it. If our guys are going to go all out, he might as well go all out. The Gang of '08 is not going to sit on their hands if we get a real conservative."

So, who will it be? Larry Thompson's name is still in play. Michael Luttig's' name is back up. Edith Jones's name is also in play. Owen's name is there, but she is now considered less likely. This is all to say that I have no idea other than it will not be me.

Posted in SCOTUS —

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Posted at 9:58am on Sep. 17, 2005 New Clips, Sat. 9/17

By Marshall Manson

Reminder: Today is Constitution Day! Celebrate the big day by reading this and then reading the Constitution. You should read it at least once a year.

Here is today's Supreme Court confirmation news:

News Analysis: Roberts keeps politics out of play

Stephen Henderson, Knight Ridder Newspapers

Editorial: Chief Justice Roberts

The Weekly Standard

Editorial: Roberts rises to the occassion

Rocky Mountain News

N.D. senators undecided on Roberts

Associated Press

On Abortion, Few Seem to Take Roberts at Face Value

Charles Babington, Washington Post

Bloomberg opposes Bush high-court pick

Reuters

(Editorial Comment: Is it really news that another Democrat is opposing Judge Roberts' confirmation?)

Commentary: Will the Real John Roberts Please Stand Up? Or Not

Ann Woolner, Bloomberg News

Bush Turns Attention to 2nd Court Vacancy

Dave Espo, Associated Press

Bush to Meet With Senators Over Second Vacancy on Court

David Kirkpatrick, New York Times

Bush to consult Congress about new justice

Associated Press

Commentary: A living Constitution for a dying republic