Monday, October 31, 2005

Alito is a Slam Dunk to be Confirmed

Alito is obviously among the numerous candidates that fulfills the President’s pledge to nominate someone in the mold of Scalia and Thomas- the only question now is whether he will be confirmed. I think he answer to that is a slam-dunk “yes.” During the Miers nomination debacle, some (including some on this board) blamed the Republicans in the gang of 14 for the choice, saying they made the nomination of a qualified conservative impossible. I think the Alito nomination will show that I was right to defend those Republicans and that Bush miscalculated greatly if that was his reason for nominating such an unknown as Miers.

Mike DeWine was just on TV (one of the gang of 14), saying that Alito is nowhere close to extraordinary circumstances. I expect John McCain and the rest of those who worked well with Democrats to save the filibuster for truly extraordinary circumstances will issue similar statements in the next couple of days. The Democrats will see the writing on the wall for any attempt at a filibuster, not want to lose the option for truly extraordinary circumstances, and back down after a bunch of posturing. Alito will be confirmed with over 60 votes, and the filibuster deal will be established as not something to be used as a litmus test, but rather as a last ditch measure for when the process goes really wrong.

This is a very good day for the American judiciary.

Welcome to the Lions' Den, J. Alito!

This is the kind of POLITICAL argument that must have argued in favor of Alito.

Could McConnell have been passed over because of Bush v Gore?

Saturday, October 29, 2005

A Great Opportunity

In nominating Harriet Miers for the Supreme Court, George W. Bush made one of the biggest mistakes of his presidency. Having suffered the humiliation of having the intellectual wing of his own supporters shoot down his nominee, Bush has a golden opportunity to restore excellent and demonstrated ability, rather than stealth, as the most important qualification for a Supreme Court nominee. Bush must not miss this opportunity.

The Miers nomination was, as Robert Bork put it, “a disaster on every level.” Rather than putting forward someone with impeccable qualifications and a demonstrated ability to lead the nation’s highest court, Bush chose a supposedly “safe” pick- safe both because he knew how she would vote and because she had never publicly expressed any contraversial views. The broad response against this nominee was heartening and inspiring for those of us who are increasingly cynical about politics. As David Frum of National Review said upon Miers’ withdrawal- “[t]he system worked.”

In order to make up for the Miers mistake and set an important precedent for future nominees, President Bush should now appoint the anti-Miers. That is, he should appoint someone with (1) the longest paper trail of excellent scholarship he can find; and (2) someone respected by both the let and the right as being of the highest intellect. There are several excellent choice who would fill these qualifications, but I think probably the best selection would be 10th Circuit Judge Michael McConnell.

McConnell has several important factors working in his favor (for a similar defense of picking McConnell- see this post):

1. He is respected as having an incredible intellect by both the left and the right. It is uncontroversial to say that he is one of the most brilliant conservative academics of his generation.

2. He would have support from many of the intellectual on the left, many of whom signed this letter in support of his confirmation to the Circuit Court. Signatures of this letter include Cass Sunstien- currently the leading liberal academic in the country by many measures.

3. He holds many conservative viewpoints that should please those who voted for Bush- including unequivocal opposition to Roe v. Wade.

4. He was recently confirmed to the Circuit Court, without any threat of filibuster, so his nomination may not trigger a fight over the nuclear option.

5. He has a very long paper trail- meaning that he has defended his views in public and has had to put his thoughts to the test.

I believe the Robert Bork precedent has been overemphasized to the point where many wrongly believe that no one with a public record on important constitutional issues can make it to the Supreme Court. By nominating McConnell, George W. Bush can obliterate the Bork precedent. The juxtaposition between an embarrassed Harriet Miers- the ultimate stealth candidate- having to withdraw, with Michael McConnell overwhelming passing through the Senate, would be a powerful precedent for future nominations. It would once again establish excellence, and not stealth, as the primary qualifications for a Supreme Court nominee. By making this move, George W. Bush can turn one of his administration’s biggest mistakes into one of its most important achievements.

Judicial Nominations & Republican Politics

I would like to respond to a comment Dave Lane (glad we have intelligent liberal contributions on the blog - thanks!) made on a previous post:

"I will say this -- the following GOP talking points are now dead in the water (killed by the hand that fed them):
1. Every nominee deserves an up or down vote.
2. There should not be a litmus test on abortion for judges.
3. Bush was elected President, so he gets to pick who he wants for the Court.
4. Nominees should not be Borked (I suppose it's somewhat poetic that Miers was Borked by Bork). "

The Miers nomination raises reasonable doubts about the sincerity of conservatives who suggested that the presidential nominating power was sacrosanct. Many conservatives made compelling arguments that "advice and consent" could not mean that a president had the DUTY to prequalify nominees with the Senate. In the case of Miers, the President made a choice and the reaction was outrage - How dare he! In defense of the abovementioned conservatives, I would distinguish between saying that the Constitution requires senatorial participation in the selection of nominees (a novel interpretation of the Constitution opportunistically advanced recently by some Democrats) and saying that a president's choices can be criticized (a freedom fully exercised by Republican citizens in recent weeks). Republican senators did not initiate or even participate in the rebellion against Miers and their subtle telegraphing of a difficult confirmation seemed to underscore the generally accepted notion of senatorial veto power to a presidential power of choice.

"Every nominee deserves an up or down vote" refers not to public opposition, which derailed this nominee, but to (ab)use of Senate rules to prevent a vote coming to the Senate floor, notably the filibuster. The objection is not to free speech but to minority thwarting of the majority will. The Miers withdrawal was a submission to popular will.

Miers was not generally treated abusively. She was a very weak nominee, offering ample material for substantive objections, and the attacks hardly had the chance to get personal in the short time involved. Judge Bork, on the other hand, was subjected to the full fury of modern media politics.

You have a point on abortion litmus tests.

I believe the Miers nomination was, as Geoff Shipsides reported in a post before Miers' nomination, a sacrifice nomination. The abortion element was crucial to setting up the next nominee. Here's how:

It has by now been established that Miers opposes abortion (and Karl Rove made sure that we'd all find out) and it seems reasonable to assume that she would have been a vote to overturn Roe as well. The Democrats hardly raised a peep against Miers but instead held their fire as they saw Republicans seeming to do their work. BUT the Miers prologue simply strengthens the importance of QUALIFICATIONS in the public mind; opposition to abortion hardly got a chance to be brought up as a problem.

So, we are left with: 1) qualifications are the key to evaluating a nominee (another Republican talking point), and 2) opposition to abortion is not a problem.

I think the next nominee will be: Edith Jones, Emilio Garza, or Michael McConnell. And any of them will now have a much easier time getting confirmed after Miers. There will be a tough fight but the ground is well prepared for the engagement.

Monday, October 17, 2005

Fatal flaw?

One might wonder whether such a thing (a negative view of Roe, to such an extent that the decision should be overturned) should eliminate a nominee, but this indicates that Miers might have a serious problem in front of the Senate Jud Com.

Some odds-makers have turned against Miers...

Monday, October 10, 2005

Blame It On the Senate

In reading the most recent Fed Soc blogs on the nominations of Ms. Miers, I must say I'm a little surprised that two big points have been completely overlooked. First is the role of the "moderate Republicans" in the Senate. Second is the fact that the Court moves to the right regardless of the result of the Miers hearings.

Had a Luttig or Garza received this nomination, I doubt that the moderate Republican Senators would have stood solidly behind him. Their history with the fillibuster "compromise" proves very unpromising. If such a candidate had been nominated and challenged by the Demos, I doubt the Republicans would have used the nuclear option. They did not even stand for this principle in the abstract; why would they suddenly invoke it when it makes a practical difference and they would open themselves up to even more charges of partisanship? Cow-towing to Democrats on such a nomination would communicate that not even the Republican party wants to align itself with these "controversial conservatives," and could greatly set back the work that conservative groups like the Federalist Society have done in making conservative ideas part of the mainstream legal dialogue.

Because Luttig and Garza were not nominated, these same moderate Republicans are now up-in-arms. The Democrats seem to be happy enough. This is also a very good thing since the moderate Republicans are the ones that make or break the confirmation. If the Republicans do decide to reject Miers as a candidate, it puts them in a position to have to stick by their guns when Bush nominates a candidate with a more substantial conservative track record. The moderates could not avoid acknowledging the conservative branch of their party as easily the second time around if their reasons for rejecting Miers included inability to determine her jurisprudential views. It would put them in a position to have to take a stand for conservative jurisprudence by legitimizing judges with a solid conservative history. It would be much easier for a conservative judge to be confirmed if the Senate rejects Miers.

Secondly, I'm not as sure as my Fed Soc colleagues that Miers is such a horrible pick. I have to disagree that there is a certain path or a certain set of credentials that reveals a judge has a strong unassailable philosophy. Or even that a woman that doesn't have those credentials is intellectually inferior to those that do. Ultimately, the fears of Federalist Society members should not be that Miers is not intellectual; the fear should be that she does not have a consistent jurisprudential philosophy. Many Supreme Court justices that did not follow what we see today as the typical track were effective nonetheless in this important area, including Marshall, Warren, Harlan, Frankfurter, and Jackson. ( Whatever criticisms can be made of these men (especially Warren and Marshall) not having a consistent judicial philosophy is not among them. The main point is that, if confirmed, I think Miers replacing O'Conner will move the court slightly "to the right." And that is a good thing.

Whatever happens next, it seems the court goes our way. Either the Senate denies her nomination and is forced to support someone with stronger conservative ties, or they confirm her, and we get a controversial candidate slightly more conservative than O'Conner. I'm not sure the Miers nomination is a great idea; I'm just not so sure it's a bad one.

Thursday, October 06, 2005

Ground shifting under us?

This indicates that the Miers nomination may not have stamina...

Wednesday, October 05, 2005

Just Good is Not Good Enough

There are certain stations in life that should demand the highest level of achievement and ability. Being a justice on the Supreme Court of the United States is one of those posts. While a President can have many criteria for selecting a nominee- including ideology, conformability and character- being one of the best minds of the generation should serve as a threshold to being considered. In selecting Harriet Miers as his nominee for the Supreme Court, George W. Bush failed to abide by this simple and essential threshold.

Miers is a good lawyer, maybe even a very good one. She was President of the Texas Bar Association, she was White House Counsel, she even managed a large law firm. This is very impressive- but good is not good enough. As George Will accurately pointed out - "If 100 [top legal minds] had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists." That no one would seriously challenge this contention shows that Miers fails the most essential prerequisite for being considered for the Supreme Court.

Miers’ defenders point out that she is not from the judicial monastery and brings a different experience to the bench. First, I am unsure as to why not having been a lower court judge gives one more ability to be a judge at the highest level. Imagine someone arguing that she should be CFO of a fortune 500 company, and responding to the charge that she has never performed high level financial analysis by saying she will bring a different background to the job of CFO. Even more importantly, there are numerous lawyers who have never been judges that would fit the threshold criteria I propose. For example, former Solicitor General Theodore Olson is acknowledged by legal experts on both the left and the right as one of the most brilliant legal minds in America. And if Bush was insistent on picking a woman, he could have selected Maureen Mahoney, who is a former Rehnquist clerk and one of the most respected advocates in the country. There are dozens such names that I or anyone else familiar with the American legal universe would pick before we would even consider mentioning Harriet Miers.

Miers may end up being one of the great justices in American history. She could have the intellect and ability to prove her detractors wrong. Most likely, this will not occur. In selection John Roberts, George W. Bush picked someone who has excelled at the highest level at the most difficult tasks a legal mind can tackle. In moving away from selecting from the universe of the best legal minds of the generation, Bush has made a terrible mistake. Even worse than the one Reagan made in 1981.

Tuesday, October 04, 2005

Meaning of Miers

Two thoughts:

1) A friend has pointed out that putting up an originalist/pro-life nominee and having that nominee lose in committee and ultimately, after the nuclear option or due to it, on the floor of the Senate would be much worse banishment of Republican jurisprudential views from broad acceptability than is the current, conciliatory stealth approach. Rather than viewing all occasions as an opportunity to confront the adversary, the President has rightly shown good judgement in avoiding unnecessary controversy in a context of generally increasing, incremental acceptance of originalism and restrained jurisprudence.

2) President Bush conducted the most extensive Senate consultation in history, perhaps 70 senators out of 100. Those Senators were more liable to share their considered political judgment in private with the president than with the press (moderate Republicans were key to the vote). Therefore, his decision was 1) a sober analysis of the current political landscape, and 2) an attempt at building bridges with the Democrats. Bush has no more elections to win but he would like to get things done: peace with the Democrats is key to Social Security reform. Harry Ried proposed Harriet Miers...

Barnett On Miers

I am currently too disappointed to make any coherent post on this matter, so I want to just put up this article for consideration: Georgetown Law's Randy Barnett on Why Alexander Hamilton Wouldn't Approve of Justice Harriet Miers

Monday, October 03, 2005

New SCOTUS Pick - a Scalia or a Souter?

It's official: as of 0800 EST, President Bush has chosen Harriet E. Miers, White House Counsel, to replace retiring Associate Justice Sandra Day O'Connor on the US Supreme Court. Apparently Miers was suggested by and has support from both sides of the aisle.

As a Bush supporter, I must say that I am thoroughly unimpressed with his latest pick. It seems that he has found his 'consensus nominee' and has found her deep inside the ranks of the ranks of the White House insiders. She has no judicial experience and no significant paper trail - which, on the one hand, deprives the Dems of ammunition for attacks on her record, but on the other hand strips the GOP base of any assurance that this woman won't turn out to be a David Souter. Is it too much to ask, from a President who has gotten so much support from his base in times of intense political pressure, that a solid, proven conservative/textualist jurist be selected?

I know it's too early in the game to be criticizing this woman, and she may very well turn out to be a highly impressive nominee (see Chief Justice Roberts). Judgment must be reserved until we find out more about her. I hope we're all pleasantly surprised, but mostly, I wish we didn't have to hope.

14th Amendment: Original Meaning?

This site gives an interesting smattering of historical information tending to indicate that the drafters, at least, of the 14th Amendment DID see it as an affirmation of the Bill of Rights to be applied to the states.

I'd appreciate others thoughts on this...